Supreme Court of Canada rules that condoms alone do not prevent a 'realistic possibility' of HIV transmission

Published: October 8, 2012

The Supreme Court of Canada stated on Friday that individuals who know they are HIV-positive are liable to criminal prosecution for aggravated sexual assault if they do not disclose this fact prior to sex that may risk a "realistic possibility of transmission of HIV".

The unanimous decision rejected the government’s argument that there should be a blanket law requiring people with HIV to disclose regardless of the risk, stating that the duty for an HIV-positive individual to disclose can be exempted, but only when a condom is used and the individual also has a low viral load.

The court also reaffirmed the 1998 Supreme Court ruling (R v Cuerrier) which established that a person who knows they are living with HIV has a duty to disclose their HIV-positive status before engaging in conduct that poses a "significant risk" of HIV transmission.

Non-disclosure (regardless of whether this is active deceit or simply no verbal discussion of HIV risk) will continue to be treated as fraud that invalidates consent to sex. If it can also be shown that the sexual partner would not have consented had they known the accused was HIV-positive, this is considered aggravated sexual assault, which carries a maximum sentence of life imprisonment and registration as a sex offender.

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