Gender, Sexuality, Health & HIV Criminalization

Chris Tatham, University of Toronto

In Canada, the disclosure of HIV has been mandated by law since 1998. In R v Cuerrier, the Supreme Court of Canada ruled that people living with HIV had the legal responsibility to disclose their status to their sexual partners as any sexual interaction will result in exposure to ‘significant risk of bodily harm’.  Failure to disclose one’s status vitiated their partner’s consent and could result charges of aggravated sexual assault (with or without transmission of the virus).  In 2012, the Supreme Court clarified the law. Now, people living with HIV are legally mandated to disclose their status to their partners when there is a ‘realistic possibility of transmitting HIV’. As such, the use of condoms while having a low viral load no longer requires disclosure, from a legal perspective. This paper examines the strategies by which straight and LGBTQ women and men understand and navigate the criminalization of non-disclosure of HIV and discusses the ramifications of this legal approach upon the relationships and health of people living with HIV. This qualitative study is based upon semi-structured, open ended interviews with 75 HIV positive straight and LGBTQ women and men across Ontario.

This paper will be presented at the following session: