Last week’s ruling by the Supreme Court of Canada–reported by the CBC, among others–establishing the terms on which people infected with HIV could have sex with uninfected people got international coverage. (See Joe. My. God. and Towleroad, for instance.)
Briefly, the Supreme Court revisited the 1998 case of R. v. Cuerrier, where it was ruled that knowingly exposing a sexual partner to HIV at all would constitute sexual assault. In the era of HAART and other medical therapies which can sharply limit the presence of the HIV virus in bodily fluids, thus sharply reducing potential infectiousness, the court ruled unanimously–9-0–that so long as someone infected with HIV had a low viral load and wore a condom, disclosure was not necessary.
I’m not entirely sure what I feel about this. I don’t quite buy the sentiment, expressed in Xtra! as well as by some of the CBC’s interviewees, that this represents an intrusion on civil liberties. I know that there are people who are willing to expose their sexual partners to HIV without bothering to ask their consent, I think the criminal transmission of HIV should remain a criminal act in Canada as a form of assault, and I suspect that this ruling, taking into account the latest findings of medical research as it does, is about as finely-tuned as one can reasonably expect. Is it, though?
A lawyer for the B.C. Civil Liberties Association, which was an intervener in the case, was disappointed that the Supreme Court decision did not go further.
“My client’s position is that the criminal law is a harsh tool that should be reserved for the most morally blame-worthy cases,” said Michael Feder.
“What you’re talking about here is a vulnerable, marginalized group of people who are going to be forced to go around volunteering to anyone with whom they’re going to have sexual contact, that they belong to that vulnerable, marginalized group,” he said.
Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Network, which also intervened in the case, said the decision was not a good one for people living with HIV.
His group’s position is that either a low viral load or the use of a condom should be the required test to avoid being prosecuted, but not both, as the top court said in Friday’s ruling.
“We know from the science now that if either you use a condom or you have a low viral load, the risk of transmission is extraordinarily small,” he said.
Jessica Whitbread, who contracted HIV from a former boyfriend more than a decade ago, said she thought Friday’s ruling was a step forward — at first. But upon closer examination, she said this ruling could make her the criminal.
“I can still have a vindictive lover say that I did or didn’t use a condom,” she told CBC News. “It still becomes ‘he said, she said. he said, he said.’ …That can still play a very important role in the courts.”