The statement also calls on the federal government to reform the Criminal Code to limit the unjust use of criminal law. In particular, it calls for HIV non-disclosure to be removed from the reach of sexual assault laws; it’s a misuse of such charges where HIV non-disclosure takes place in the context of sex among otherwise consenting adults. Following international recommendations, the coalition also calls for any prosecutions to be limited to cases where there was actual, intentional transmission of HIV.

It is encouraging, therefore, that Justice Canada’s report recommends that the criminal law should not apply to people who have a suppressed viral load, nor when people living with HIV use condoms or engage only in oral sex. However, the announcement on World AIDS day by the Attorney General of Ontario falls well short of this, as it only commits to refraining from prosecutions in cases where someone has a suppressed viral load.

This isn’t good enough. For example, it means that someone who has correctly used a condom — through which HIV cannot pass — for a consensual sexual encounter is treated the same in law as a violent rapist (and, if convicted, faces potentially years in prison and mandatory designation as a sex offender). This is not justice. At the barest minimum, the conclusions by Justice Canada need to be reflected in clear prosecutorial directives issued by federal and provincial attorneys general across the country.