May 5, 2021
HIV Disclosure and the Law
In Ontario, Black communities are overrepresented in charges against people living with HIV who have not disclosed their status. The reality is that a disproportionate number of charges are brought against members of our community. Resulting in more HIV positive Black people facing trials and criminal investigations. It’s important for members of our community to be aware of the law in relation to non-disclosure and HIV. To make things more challenging, interpretations of the law and its requirements are difficult to follow. Here’s what you need to know:
What is HIV disclosure?
- To tell someone that you are living with HIV
What the criminal law says about sex and HIV?
- In Canada, there is a legal obligation for people living with HIV to tell their sex partners that they are HIV-Positive before having sex that poses a “realistic possibility” of HIV transmission. Realistic possibility means
- The legal obligation to disclose one’s HIV-positive status applies only to people who know or suspect that they are living with HIV.
- You have a legal duty to disclose your HIV status before sex with a person who you know has HIV.
The criminal law about HIV non-disclosure is strict and the consequences can be severe. You may not like what the law says. You may not agree with it. But it is still the law.
- Here is what can happen to a person living with HIV who exposes someone else to a “realistic possibility” of HIV infection during sex but did not disclose their HIV infection before sex (adapted from HIV disclosure: A Legal guide for Gay Men in Canada - updated legal information May 2013, HALCO
- The police can investigate and charge a person living with HIV with a serious crime, usually aggravated sexual assault.
- The police can arrest the person living with HIV and put them in jail
- The person’s picture, HIV status, other personal information and the crime they’re accused of committing may appear in a police press release, in the media and on the internet. Usually, criminal court trials are open to the public and the media.
- If the person pleads guilty, or if the court decides they are guilty, they will almost certainly be sentenced to time in prison. They will have a criminal record. Their name may be put on a list of sex offenders. A DNA sample may be taken and placed in a data bank of convicted criminals. If the person is not a Canadian citizen they may be deported.
- However, if the charges are dropped or they are found “not guilty” after a trial, they should be set free.
- Because there is a risk that you might be charged and convicted for not telling him or her that you have HIV.
What are the downsides of using the criminal law in cases of non-disclosure?
Black CAP is highly opposed to the use of the criminal justice system in cases of non-disclosure for the following reasons:
- As with other areas of criminal justice, Black and other marginalized people experience a higher level of scrutiny, prosecution and severity of charges.
- Women are especially vulnerable because they often cannot choose to use a condom in their relationships and have partners who use non-disclosure charges as a form of manipulation, control and domination.
- The law places the full responsibility of condom use on PHAs and not their partners.
- The use of charges does nothing to promote disclosure of HIV status in high stigma communities – in fact it makes disclosure more unlikely.
- People may be charged when there has been no transmission
- Prisons are not places where the health of PHAs can be managed well and the prevalence of sexual violence increases the likelihood of transmission
How can I reduce the likelihood of charges?
Proving that you disclosed to your partner is especially important, consider the following steps:
- Tell your sexual partners you are HIV positive before sex and try to get proof that you told them. When doing so use very clear and direct language such as “I have HIV”, I am HIV positive” or “I am infected with HIV”.
- Also make sure your partner understands what HIV means and how it is transmitted. For more information see HIV disclosure: A Legal guide for Gay Men in Canada - updated legal information May 2013, HALCO. Contact HALCO at 416-340-7790 or visit them at halco.org
- If you disclose to your partner online, by text or over email save it so you have proof.
- If you tell them in person make sure you have a witness or have your partner sign and date a document saying they know about your HIV status
- Consider making a video of your disclosure
- Create support and counseling records in a session with healthcare workers.
What do you need to do if you are being investigated or charged?
Contact HALCO immediately at 416-340-7790 or visit them at halco.org