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October 26, 2012

Recent Supreme Court Decisions regarding HIV Disclosure

The Supreme Court of Canada has recently updated the 1998 landmark ruling that made it a crime if HIV carriers failed to disclose their status to their sexual partners, when the risk of transmission was significant. The Supreme Court judges ruled unanimously, on October 5, 2012, that some individuals who possess a low viral load and who use a condom do not need to disclose their HIV positive status to their sexual partners. According to the court, these two elements (low viral load and use of condom) negate the “realistic possibility of transmission of HIV”. If these elements are not present, then HIV carriers are still required to disclose their status to their partners.

The Supreme Court ruled on two separate cases from Quebec and Manitoba in which the defendants were charged with sexual assault as a result of failing to disclose their HIV status.

According to the Supreme Court, if there is no significant possibility of transmission of HIV, then failure to disclose one’s HIV status does not constitute fraud invalidating consent to sexual relations.

Here are the links to the full texts of the decisions:
http://scc.lexum.org/en/2012/2012scc47/2012scc47.html
http://scc.lexum.org/en/2012/2012scc48/2012scc48.html