Fact Sheet – HIV Non-Disclosure and the Criminal Law

Justice Canada’s Report on the Criminal Justice System’s Response to HIV Non-Disclosure

December 2017

When does the law require someone to disclose that they are HIV positive?

The criminal law does not require disclosure of HIV in every case. In 2012, the Supreme Court of Canada (SCC) held that the criminal law imposes a duty on a person to disclose HIV positive status before sexual activity that poses a “realistic possibility of transmission” so that the HIV negative sexual partner has the opportunity to choose whether to assume the risk of being infected with HIV. “HIV non-disclosure” is the term used to describe these cases, i.e., criminal cases involving transmission, or exposure to the realistic possibility of transmission, of HIV through sexual activity.

A number of offences have been applied in HIV non-disclosure cases, including aggravated sexual assault and aggravated assault. While failing to disclose other sexually transmissible infections (STIs) prior to sexual activity could also invalidate consent to that activity, most cases that come to the attention of law enforcement concern HIV. The Criminal Code does not contain HIV or other STI-specific offences.

What is a “realistic possibility of transmission”?

Persons living with HIV have a duty to disclose their HIV status before sex that poses a “realistic possibility of transmission.” This legal test determines when non-disclosure invalidates consent to sexual activity — in other words, when the law will deem after the fact that the HIV negative partner did not consent, even though she or he may have consented at the time of sexual activity.

The SCC held that there is no realistic possibility of transmission where the person living with HIV had a low or undetectable viral load at the time the sexual activity took place, and a condom was used (Mabior, 2012). The SCC also acknowledged that advances in medical treatment of HIV may narrow the circumstances where there is a duty to disclose HIV positive status. The most recent medical science on HIV transmission is therefore relevant to determining if there was a realistic possibility of transmitting HIV.

What does the report conclude on the criminal justice system’s response to HIV non-disclosure?

In light of the Public Health Agency of Canada’s review of the most recent medical science, Justice Canada’s Report on the Criminal Justice System’s Response to Non-Disclosure of HIV draws the following conclusions about the scope of the criminal law addressing HIV non-disclosure cases:

• Negligible risk of transmission: The criminal law should not apply to persons living with HIV who have engaged in sexual activity without disclosing their status if they have maintained a suppressed viral load (i.e., under 200 copies of HIV per milliliter of blood), because the realistic possibility of transmission test is not met in these circumstances (The Public Health Agency of Canada assessed these circumstances as presenting a negligible risk of HIV transmission).
• Low risk of transmission: The criminal law should generally not apply to persons living with HIV who are on treatment, are not on treatment but use condoms or engage only in oral sex, unless other risk factors are present and the person living with HIV is aware of those risks., In these circumstances, the realistic possibility of transmission test is likely not met (the Public Health Agency of Canada and the United States Center For Disease Control and Prevention assessed these circumstances as presenting a low risk of HIV transmission).
• High risk behavior: The criminal law has a role to play in protecting individuals who may be exposed to HIV transmission and the public generally, in cases where public health interventions have failed to address high risk conduct. Criminal law responses should not depend on a complainant contracting HIV where a person living with HIV is engaging in high risk conduct that has not resulted in transmission only by sheer chance. Both complainants who contract HIV and those who are exposed to should be and are protected by the criminal law.
• Non-sexual offences for HIV non-disclosure: Canada’s criminal law approach to HIV transmission and exposure cases should reflect the varying levels of culpability, in particular by resorting to non-sexual offences for cases where transmission is not entirely the fault of the offender (e.g., where risky behavior is the result of lack of access to medical care and/or difficult life circumstances). 

These conclusions concern when the criminal law should impose a duty to disclose HIV positive status before sexual activity, not when there may be an ethical duty to do so.