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A recent Supreme Court of Canada decision that absolves certain HIV carriers of the legal obligation to inform their sex partners of their status brings criminal law in step with science – a move that was “long overdue,” says Toronto criminal lawyer Patrice Band.
The ruling determined that as long as the HIV-positive individual has a low level of the virus and wears a condom, sex partners do not have to legally be made aware, the Toronto Star reports. Read Toronto Star
“The analysis provides some much-needed clarity over the previous state of the law,” Band says. “It also brings the criminal law in step with the science of HIV/AIDS, which was long overdue, and it reinforces an important core value in Canadian society that the criminal law, while ‘infused with morality,’ does not punish all immorality.”
Band expects the clarified law to be beneficial in several ways moving forward, but says it’s not without its challenges.
“It will assist police, prosecutors and judges in applying the aggravated sexual assault provisions of the Criminal Code. But like most things in the criminal law, it does not contemplate every possible scenario. Much will still remain to be litigated,” he says. “First, the science is always developing, and far more quickly than the common law. Second, while the decision is about HIV, the facts of the case focus principally on one method of transmission: heterosexual vaginal intercourse. We can expect judges to be challenged by new fact scenarios in light of the complexity of human sexuality and constant scientific progress.”
Band says he agrees with the Supreme Court’s stance that there can be no blanket law requiring people with HIV to disclose their condition under every circumstance.
“That view is simply out of step with the scientific reality that people with low or undetectable viral loads who practise safer sex present little risk to their sexual partners,” he says. “Second, rejecting that view is consistent with the core values of our criminal justice system – that only the truly morally blameworthy should lose their liberty.”