Background
“HIV non-disclosure” refers to criminal cases where a person living with HIV, who is aware of their status and knows they are infectious, does not disclose their HIV status before sexual activity that poses a realistic possibility of transmission.
Areas explored included:
- Whether sexual assault offences are appropriate in HIV non-disclosure cases;
- Whether the criminal law should apply only where the accused intended to transmit HIV or actually transmitted HIV;
- Whether the criminal law should apply in cases where an accused has taken precautions to protect their sexual partner(s) from transmission; and
- Whether a new HIV, STI or infectious disease-specific offence should be created to address HIV non-disclosure cases.
Currently, persons living with HIV who do not disclose their status prior to sexual activity that poses a risk of transmission can be charged with different offences, including aggravated sexual assault, which is the most serious sexual assault offence in the Criminal Code. This is because, in certain circumstances, the non-disclosure of one’s HIV status can invalidate another person’s consent to engage in sexual activity.
However, evidence suggests that criminalization can lead to the stigmatization of people living with HIV, which may discourage individuals from being tested or seeking treatment. There has also been considerable progress in terms of HIV treatment, as reflected in the scientific evidence on rates of transmissibility. Together, these points suggest that it is prudent to periodically review criminal laws related to non-disclosure. Holding a consultation and hearing from stakeholders and those with lived experience is key to creating a path forward that follows science, protects victims, and reduces the stigma of those living with HIV.
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