Should not disclosing HIV be illegal?

On February 22, dozens of protesters stood outside the Attorney General of Canada’s office demanding the law stating HIV-positive people needing to disclose their status to all potential sexual partners be revoked.

Currently under Canadian law, not informing your sexual partner you’re HIV positive can land you an aggravated sexual assault charge, which is anywhere from 5 years up to a lifetime in jail. This offense has been enforced before, one example being Marjorie Schenkels, a woman who is HIV positive was charged with aggravated sexual assault charge for having unprotected sex three times with a friend in 2014. That being said, there is no official law stating the correct punishment for someone who doesn’t disclose having HIV.

When I first heard about this, I didn’t understand how people could protest this law. How could people want this law to be scratched and increase the chance of people contracting HIV?

Well, let’s dive into both sides of the argument because it’s more complicated than you might think.

The Arguments

The easier side to understand is people who are in favour of the current law. Their argument is simple: HIV and AIDS are deadly diseases. People should be well informed before being put into a situation where they might contract them. It’s the only real argument they have, but that’s all right because IT’S A VERY GOOD ONE.

Once you venture into the other side of the argument is when thinks start to get more complicated.

The first point people against the current law make is HIV isn’t as transmittable as people think due to general misconceptions surrounding it. According to a scientific consensus statement on, there are three main factors that contribute to the transmission of the virus:

  • Type of sexual act
  • Condom use
  • Antiretroviral therapy use and viral load in the HIV-positive person

The type of sexual act increases or decreases the chance of transmission. For example, oral sex has a significantly lower chance than vaginal and anal sex because HIV isn’t transferable through saliva. Is only transferable through semen, vaginal fluid, and anal fluid, and even then is only transferable these fluids come into contact with specific cells in an HIV-negative person.

Condom use is important because as long as the condom doesn’t break, HIV cannot pass through the latex barrier. However, they recognize condoms do tend to break from time to time.

Antiretroviral therapy is how people with HIV are treated. The goal of this type of treatment is to stop the virus from making copies of itself. Viral load is how contagious someone with HIV actually is, and the goal of antiretroviral therapy is to have an undetectable viral load, meaning little to no HIV.

The scientific community against the current Canadian law says the combination of these three factors can lead to HIV almost being completely non-transmittable. You can read the detailed report discussing these factors and more about HIV prevention here:

The other argument is the law surrounding HIV creates a stigma that does more damage than it does good. Protestors say shaming people for having HIV and making them afraid of the social and legal consequences deters them from wanting to tell anyone about their HIV status, especially when they can be legally labelled as people who committed aggravated sexual assault.

What do I think?

I think both sides have very valid points. Being labelled a rapist for not telling someone of a condition you’re ashamed of is harsh. You could create a specific category in the Criminal Code of Canada addressing HIV transmission, but giving it its own section could further add to the stigma surrounding the virus. On the other hand, unlike chlamydia or other STIs, HIV and AIDS are deadly. I still think you should make people fully aware of what they’re getting into before they make a decision that could possibly end their life – no matter how low the risk is.

So, what do you think? Am I right? Am I wrong? Should it continue to be illegal not to disclose your HIV to sexual partners? Should the Canadian government trash the law surrounding it? Should there be a new section introduced into the Criminal Code of Canada addressing this issue? Let me know in the comment section below, and make sure to get your friends and family in on the debate by sharing this article.




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