The Canadian Supreme Court ruled today in R. v. Mabior [2012 SCC 47] that the law criminalizing failure to disclose HIV positive status to a sexual partner was constitutional only in situations where a realistic risk of transmission could be proved. In a 1998 decision, the court had ruled that failure to disclose vitiated the partner’s consent, thus rendering the act prosecutable as an aggravated sexual assault (aggravated because HIV poses a risk of serious bodily harm).
Today the court cabined that ruling, holding that criminal charges cannot be brought if the defendant’s viral load was low enough to not pose a realistic risk of transmission at the time of the sexual relations and if the defendant had used a condom.
The Canadian HIV/AIDS Legal Network and other AIDS service organizations criticized the decision as out of touch with scientific reality. Their amicus brief had urged the court to rule out prosecutions whenever condoms were used. And here’s an excellent analysis of why this decision is not a step forward for women.