Under criminal law in Canada people living with HIV have a legal duty to tell their sex partners that they have HIV before having sex where there is a “realistic possibility” of passing on HIV. If a person who has HIV has sex with another person in a way that could pass on the HIV, they could be charged with aggravated sexual assault (Oct 5th, 2012, Supreme Court). Aggravated sexual assault carries a maximum penalty of imprisonment for life and mandatory registration as a sex offender.
A person living with HIV has a legal duty to tell their sex partner they have HIV:
- Before having vaginal or anal sex without a condom, no matter what their viral load (HIV viral load is the amount of HIV in the body fluids of someone living with HIV. It is measured through a blood test.)
- Before having vaginal or anal sex with anything higher than a “low” viral load even if they used a condom
A person living with HIV does not have a legal duty to tell their sex partner before having vaginal sex if:
- Their viral load is “low” (based on Supreme Court decisions, at least below 1500 copies of the virus per milliliter of blood)
- They use a condom.
BOTH of these points are required.
What is still unclear?
As of 2012, the only HIV non-disclosure cases before the Supreme Court of Canada have been about vaginal sex. The situations still to be addressed include: anal sex, oral sex, and condom breakage during sex.
Contact the Canadian HIV/AIDS Legal Network for more information on legal issues around HIV and AIDS.