Bone headed decision on HIV disclosure by Canadian Supreme Court

[rawTOP]

If you're in Canada and you're poz, you now have to disclose at all times unless you're 1) undetectable AND 2) using a condom. Most people would say that either of those things would be sufficiently low risk not to disclose... Requiring both basically criminalizes HIV and creates a 2nd class group of people... IMHO, the neg guy is equally responsible for asking your status (and then the poz guy should only be required not to lie when answering the question).

Let’s be clear about the law. Prior to these decisions, people living with HIV were legally obligated to disclose only before sex that posed a “significant risk” of HIV transmission. That was the legal test articulated by the Supreme Court in 1998, recognizing HIV nondisclosure could be a fraud that would invalidate consent to sex. But the court put an important limit on the information that a person is legally obligated to share: the law could not reasonably transform otherwise consensual sex into assault every time a person did not have full and complete information about a sexual partner. Thus the “significant risk of serious bodily harm” test was a necessary limit on criminal liability. What the Supreme Court has now done is maintain the “significant risk” test but stripped “significant” of its meaning — by setting the bar at such an exceptionally low level of transmission risk. In these cases, the court only accepted both condom use and low viral load together as a defence. People living with HIV may now be at greater risk of prosecution, even if they take precautions to prevent transmission of the virus.

Second, let’s set the record straight about the risk of HIV transmission. Contrary to what many people believe, HIV is not easily transmitted. Statistically, it is estimated that unprotected vaginal sex with an HIV-positive man, for example, will result in the female sexual partner becoming infected with HIV once in every 1,250 sexual encounters (a 0.08 per cent risk). If the woman in a heterosexual couple is HIV-positive, transmission is estimated to occur once in every 2,500 sexual encounters (a 0.04 per cent risk).

Condoms are the primary safer sex tool because they work. If used properly, they are almost 100 per cent effective at preventing HIV infection. Even when they are not used perfectly, studies have demonstrated an 80 per cent reduction in the risk of HIV transmission when condoms are used (that is, 80 per cent fewer infections than the above statistical averages).

No, these risks are not zero. And yes, many sexual partners would like to know precisely what risks they are accepting when they have sex, no matter how small or what sort of risk it is. But just because a person would like to know does not logically imply that as a society we should turn to our most blunt weapon — the criminal law — to compel full disclosure and punish omissions. Aggravated sexual assault (usually reserved for violent rapes) is one of the most serious offences in our Criminal Code. Conviction results in sexual offender registration and up to life imprisonment. Prosecuting cases of nondisclosure in negligible risk situations between consenting adults is simply unfair and not an appropriate or helpful use of aggravated sexual assault law.

Our highest courts need to do a more rigorous analysis of the scientific evidence and the realities of sexual health in 2012. With this decision, the Supreme Court has pushed us further away from justice, a meaningful understanding of sexual autonomy, and controlling the HIV epidemic in Canada. It has effectively given a stamp of approval to AIDS-phobia and sexual health misinformation, putting another tool into the hands of abusive partners that will be used against some of the most marginalized in our society. Let’s not forget that in one of the cases before the court, the defendant was a woman accused of nondisclosure by her violently abusive ex-boyfriend who was seeking revenge because she reported his abuse to the police. We are not saying that disclosure is not a good thing nor that there is never a role for criminal prosecution, but the Supreme Court has simply opened the door too widely.

Source

[Hotload84]

It would be interesting to have listened to the discussions of members of the Supreme Court of Canada to appreciate why they reached this draconian decision. Somehow it doesn't seem like the justices were thinking carefully.

[Alphapig]

And is there the same obligation regarding other STI's ?

[mike_thieriot]

I'd question just how enforceable this would be, however. Several weeks later, when the other guy finds out he got pozzed, there will be absolutely zero DNA evidence of your "deposit" left to be found. He will have no proof that you ever had sex in the first place. Besides, the only way he would even know (assuming he doesn't know you personally) is if he got pozzed, for which the odds are extremely remote unless you have a high VL. Even then, he wouldn't necessarily know which one of his undoubtedly multiple bareback partners did the deed. Hell, you wouldn't even NEED a lawyer to defend against such a weak case. If he can't even identify who did it, how is he going to charge anyone? And if he did, its very likely that the judge would throw out such a weak case and maybe even slap him with a fine for wasting the court's time. Judges don't appreciate frivolous or unfounded cases.

[Inception]

If you're in Canada and you're poz, you now have to disclose at all times unless SNIP

Actually that's not new. Non-disclosure was already considered a criminal act. What is new is that the court has now decided that if you have a low viral load and wear a condom you do not need to disclose. This decision actually vindicated an HIV+ individual wh had been convicted of sexual assault even though they were undetectable, had used a condom during intercourse, and didn't infect anyone. The editorial quoted is a bit of an hysterical misinterpretaion of the ruling.

[HungLatinDom]

I'd question just how enforceable this would be, however. Several weeks later, when the other guy finds out he got pozzed, there will be absolutely zero DNA evidence of your "deposit" left to be found. He will have no proof that you ever had sex in the first place. Besides, the only way he would even know (assuming he doesn't know you personally) is if he got pozzed, for which the odds are extremely remote unless you have a high VL. Even then, he wouldn't necessarily know which one of his undoubtedly multiple bareback partners did the deed. Hell, you wouldn't even NEED a lawyer to defend against such a weak case. If he can't even identify who did it, how is he going to charge anyone? And if he did, its very likely that the judge would throw out such a weak case and maybe even slap him with a fine for wasting the court's time. Judges don't appreciate frivolous or unfounded cases.

I think you need to learn more about all this. You might get in trouble because wrong information.

It is really easy these days to know if somebody infected another person, with a very high degree of confidence, based on the HIV strain.

[rawTOP]

Actually that's not new. Non-disclosure was already considered a criminal act. What is new is that the court has now decided that if you have a low viral load and wear a condom you do not need to disclose. This decision actually vindicated an HIV+ individual wh had been convicted of sexual assault even though they were undetectable, had used a condom during intercourse, and didn't infect anyone. The editorial quoted is a bit of an hysterical misinterpretaion of the ruling.

There was a time while this case was winding through the courts that just being on meds was sufficient to not disclose. There's a thread in this same section about it.