The Sexual Orientation and Gender Identity Community Section of the Canadian Bar Association, in a letter responding to Department of Justice Canada consultation, adds it voice to the calls for reforming the criminalization of HIV non-disclosure.
Specifically, after careful review of the jurisprudence, prosecutorial directives, scientific evidence and community perspectives, the CBA Section endorses the 2022 Community Consensus Statement by the Canadian Coalition to Reform HIV Criminalization.
Current model
In Canada, a person who knows they are HIV positive and exposes others to a “realistic possibility of HIV transmission” without disclosing their HIV status can be charged with Criminal Code offences ranging from assault to sexual assault to aggravated assault or aggravated sexual assault. In addition, in some cases of HIV non-disclosure charges of criminal negligence causing bodily harm and common nuisance have been used.
This approach, the CBA Section says, “is overbroad and does not reflect available scientific evidence. Law reform must ensure the scope of criminalization is significantly narrowed to reflect current science.”
In particular, the letter says sexual assault provisions should not be used in cases of HIV non-disclosures and any prosecution should require actual and intentional transmission.
The CBA Section commends the federal government for undertaking this reform of criminal law regarding HIV non-disclosure, of particular importance to the LBGTQI2S community.