In many countries, including Canada, it is a criminal offence to transmit or expose another person to HIV through unprotected sex. Legislators and courts have decided that the criminal law requires people living with HIV to disclose their HIV status before engaging in behaviours that risk transmitting HIV. As a consequence, some people living with HIV have been convicted of serious criminal offences, such as aggravated sexual assault or grievous bodily harm, and sentenced to significant time in prison for failing to disclose their HIV status.
But there is no good evidence that the criminal law is effective at preventing HIV transmission. Criminalization of HIV may drive people away from public health initiatives that have proven effective, such as HIV testing, counselling and support, and partner notification. The public attention given to criminal prosecutions may create a false sense of security that the law will protect people from HIV infection. It may also undermine the message that every person is responsible for his or her own sexual health, and lead to human rights abuses by increasing the stigma and discrimination faced by people living with HIV.
We advocate for sound public policy responses to behaviour that risks transmitting HIV. The best available evidence, prevention of HIV transmission and respect for human rights must be the foundations of policy. A graduated response to the situation of people who do not disclose their HIV status is called for, with public health law and interventions as the starting point, rather than criminal law.
Please note: Resources published prior to October 2012 that describe the current state of the criminal law as it relates to HIV non-disclosure do not take into account the recent Supreme Court of Canada decisions in R. v. Mabior and R. v. D.C. We are presently working to update all our resources in accordance with these decisions.