Saturday, November 14, 2009

The Law and HIV Disclosure

The law around criminalization* of HIV disclosure* (telling a sexual partner your HIV+ status) is not clear and is constantly changing as new cases go to court. As such, it is extremely difficult to know how the law might be applied in individual circumstances, especially those experienced by sex workers.

What is clear is that if an individual knows their HIV+ status and engages in unprotected sexual intercourse* without disclosing their status to their partner, or if they lied about their status, that person can be criminally charged, though the charges depend on the facts. This person could be charged with:

Section 219 “Criminal Negligence”

If a person causes their partner bodily harm by actually transmitting the HIV virus to their sexual partner, they can be charged with criminal negligence.

Section 180 “Criminal Nuisance”

If the lives, safety, or health of the public is endangered, this charge could be laid. One does not need to actually cause harm for the offence to be committed as long as the risk was “significant”. (The definition of “significant risk” is interpreted by the court.)

Section 265(3)(c) and Section 273 “Aggravated (Sexual) Assault”

Aggravated assault is committed when the failure to disclose one’s HIV+ status or lying about one’s HIV+ status is viewed as fraud, which vitiates, or cancels, consent to sexual act. This means that if the person had known their partner’s HIV+ status, they would not have consented. Without consent, the sexual act is considered assault. An assault is aggravated when the individual wounds, mains, disfigures or endangers the life of the complainant. Like criminal nuisance, aggravated assault does not need to actually cause harm but merely requires that the life of the complainant be at risk.

Section 231 “(First Degree) Murder”

If the individual’s sexual partner dies from HIV-related health reasons, a murder charge could be laid. A first-degree murder conviction is determined if the individual had planned and deliberately exposed their sexual partner to the HIV virus without disclosing their status, or by lying, or if the individual caused death while committing an offence of aggravated sexual assault (among other offences.)

For a murder conviction, evidence is required to show that the accused had caused the deceased’s death by infecting him/her with HIV during sex and that the accused was aware of his/her HIV+ status and was aware of his/her duty to disclose. Evidence must also show that the accused meant to cause the deceased’s death or meant to cause them bodily harm that he/she was likely to cause their deaths and was reckless if their death ensued or not.

Note: At this moment in time, the laws are inconclusive on first-degree murder convictions for failing to disclose one’s HIV+ status. The decision was made by a jury this spring (2009) and the appeal has yet to be heard and decided upon.

Section 24 “Attempted Murder”

If the sexual partner of the individual who failed to disclose his/her HIV+ status has not died from HIV/AIDS-related health reasons but had their life endangered through the exposure, there can be a charge of attempted murder. Attempts of any offences are committed when the accused has the intent to cause harm, even if the offence was not completed.

You have a legal duty to disclose your HIV+ status:
  • In the context of unprotected vaginal sex or anal sex
  • When the complainant would experience a delay in discovering his/her HIV infected status if the individual does not disclose
  • If a woman is pregnant she has a legal duty to disclose to her medical team her HIV+ status. They need to be aware that the newborn will require HIV antiretroviral medication to reduce the risk of HIV transmission at birth and through breast-feeding.
The laws around disclosure are still unclear:
  • In the context of vaginal or anal sexual intercourse with a condom. However, in one case, the judge stated that even with a condom, if the viral load is detectable, the risk is significant and it is aggravated sexual assault.
  • If an HIV+ individual exposes their sexual partner who is also HIV+ to a risk of re-infection, and if this could significantly harm the person’s health.
  • In the context of drug-injecting partners sharing needles and other equipment with each other.
In short, there is a legal duty under the criminal law to disclose one’s HIV+ status when there is any ‘significant risk’ of exposure.

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