HIV carriers don't have to tell partners
Oct 5, 2012 / 7:22 am
The Supreme Court of Canada has absolved HIV carriers of the legal obligation to inform sex partners about their condition as long as they have a low level of the virus and wear a condom.
In a major 9-0 ruling Friday, the high court specified those two key conditions, clarifying the rules on whether it is a crime for people with extremely low levels of HIV to withhold their condition from their sex partners.
The court said it was reflecting the medical advances in treating the virus that causes AIDS since it first ruled on the issue in 1998 and left open the possibility of adapting to future changes in science in medicine.
The Supreme Court ruled on two separate cases, from Manitoba and Quebec, updating its landmark 1998 ruling on the subject.
The court ruled 14 years ago that people with HIV must inform their sex partners of their condition, or face a charge of aggravated sexual assault, which carries a maximum life sentence.
Now, that duty to disclose has been removed as long as the HIV carrier has a "low load" of the virus and wears a condom.
"On the evidence before us, a realistic possibility of transmission is negated by evidence that the accused's viral load was low at the time of intercourse and that condom protection was used," Chief Justice Beverley McLachlin wrote on behalf of the court.
"However, the general proposition that a low viral load combined with condom use negates a realistic possibility of transmission of HIV does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in the present case are at play."
The ruling was a partial victory for HIV/AIDS activists who have argued that the 1998 ruling sowed confusion and was applied unevenly. They wanted the decision struck down, but argued that, in the alternative, the court should at least refine that ruling to reflect new medical advances.
Prosecutors from both provinces argued that HIV carriers have a duty to inform their partners regardless of the risk, so they can make an informed decision.
The Supreme Court rejected the argument that there should be a blanket law requiring people with HIV to disclose their condition under every circumstance.
The court did not set an actual level for an acceptably low viral load, but offered a description, based on the evidence of the case.
"As noted by the court of appeal, the transmissibility of HIV is proportional to the viral load, i.e. the quantity of HIV copies in the blood," the decision said. "The viral load of an untreated HIV patient ranges from 10,000 copies to a few million copies per millilitre.
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