Obligation to Disclose HIV Status to a Sexual Partner

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Does a person infected with the HIV virus have to tell a partner about it before they have sex? It depends on the situation. 

Realistic Possibility of HIV Transmission

A person must tell a sexual partner about the condition only if there is a realistic possibility of transmission of HIV to the partner.

If there’s no realistic possibility of transmission, then someone living with HIV does have to reveal it.

In a 2012 decision, the Supreme Court of Canada ruled that there’s no realistic possibility of transmission if the amount of virus in the body is low and the partners use a condom. The person living with HIV therefore isn’t required to reveal the condition in this situation.

More recently, the Institut national de la santé publique du Québec (public health institute) stated that even without condom use, there’s no realistic possibility of transmitting HIV if

  • the viral load is very low (less than 200 copies per millilitre of blood), measured by a laboratory every 4-6 months.

and

  • the person is receiving antiretroviral therapy.

The realistic possibility of transmission can also be determined on a case-by-case basis in other situations.

Consequences of not disclosing HIV status

If there is a realistic possibility of transmission, a person who does not disclose their status can be accused of assault or aggravated sexual assault.

These criminal charges are possible even if the sexual partner didn’t become infected.