Many of the elements of the federal directive regarding prosecutions of HIV non-disclosure cases, which was issued in December 2018, were welcome news for those of us who appreciate evidence-based policy. For example, the directive to not prosecute where the person living with HIV has maintained a suppressed viral load is consistent with the science of HIV transmission. However, it should be noted that criminal prosecutions of HIV non-disclosure in general, regardless of viral load, contribute to a climate of fear and stigma for people living with HIV, which inhibits access to HIV services, we know from research. Also, ironically, it actually discourages people from disclosing their HIV status for fear of legal reprisals.
As a practical and recent example, I am currently working on an HIV educational video with support from the Public Health Agency of Canada, and in this video we are interviewing people living with HIV on camera to dispel myths about HIV and how the virus is transmitted. One of the participants in this project confided to me that he had some concern that disclosing his HIV status on camera could lead to repercussions, and not just in terms of stigma or discrimination but because a sexual partner could make a criminal complaint upon learning he is HIV positive, even though he has an undetectable viral load and there is no possibility of HIV transmission.
There is a very well-founded concern among people living with HIV that they could face a very serious criminal charge by people who misuse sexual assault law, and as a result, they conceal their HIV status to protect themselves. If our goal here is to encourage people to disclose their HIV status to their sexual partners, using sexual assault law could actually be counterproductive.