Canada’s justice minister is instructing federal prosecutors in the North that they should no longer prosecute anyone for not disclosing their HIV status to a sex partner where there is no risk of transmitting the virus.
The new rules coming into effect Saturday won’t transfer over to provinces – only in the territories where federal prosecutors have jurisdiction.
It doesn’t appear the federal government plans to push provinces to follow suit, hoping instead that the change in policy will act as an example for them.
The new marching order to Crown attorneys is aimed at making sure criminal law keeps up with scientific evidence about the virus and the conditions under which it cannot be spread. The wording of the directive says there is no public interest in pursuing HIV non-disclosure prosecutions “for conduct that medical science shows does not pose a risk of serious harm to others.”
The human immunodeficiency virus can eventually lead to AIDS, the syndrome that shuts down the immune system and makes a person highly vulnerable to bacteria and viruses. HIV can’t be cured but it can often be suppressed to the point where the virus is practically undetectable.
The directive made public Friday afternoon notes in its preamble that people from marginalized populations – such as Indigenous, gay and black people – are more likely to have HIV and are disproportionately affected by non-disclosure laws.
The Supreme Court of Canada has ruled that consent to sexual activity can be nullified if the accused person failed to disclose, or lied about, his or her HIV status. The Crown must prove the partner would not have consented to sex if he or she had been aware of the person’s status.
Most often that leads to a charge of aggravated sexual assault, if the sexual contact either transmitted the virus to the complainant or put the alleged victim at significant risk of contracting it.
A 2012 ruling from the Supreme Court clarified there was is realistic risk of transmission if the act involved a condom and a the HIV-positive person had a “low viral load.”
Justice Minister Jody Wilson-Raybould’s directive to prosecutors says cases shouldn’t proceed where there is a suppressed viral load – defined as under 200 copies of the virus per millilitre of blood. Nor generally should a Crown attorney prosecute if a condom was used, or partners only engaged in oral sex.
And where Crown attorneys do press ahead with cases, Wilson-Raybould is asking her attorneys to pursue lighter charges where appropriate, particularly if there are “lower levels of blameworthiness.”
The directive doesn’t apply to cases before the courts – only to those that land on Crown prosecutors’ desks beginning this weekend.