On Oct. 5 [2012], the Supreme Court of Canada released its decisions in two cases dealing with the tricky issues of criminal liability for HIV nondisclosure. The court ruled that people living with HIV have a legal duty to tell their sexual partners about their HIV infection except in a narrow set of circumstances — where the risk that HIV would be transmitted approaches zero. These decisions are a step backward for HIV prevention efforts, unjust for people living with HIV, and do nothing to advance sexual assault jurisprudence.

Unfortunately, some initial media reports of the decisions exhibited amnesia toward the state of the law on this issue, implying that people living with HIV could previously be found guilty for not always disclosing their HIV status to sexual partners, in every circumstance. Some coverage implied that these new decisions represented “get out of jail free” cards for people behaving irresponsibly, as if Canadians would no longer be able to protect themselves against infection.

First, let’s be clear about the law. Prior to these decisions, people living with HIV were legally obligated to disclose only before sex that posed a “significant risk” of HIV transmission. That was the legal test articulated by the Supreme Court in 1998, recognizing HIV nondisclosure could be a fraud that would invalidate consent to sex. But the court put an important limit on the information that a person is legally obligated to share: the law could not reasonably transform otherwise consensual sex into assault every time a person did not have full and complete information about a sexual partner. Thus the “significant risk of serious bodily harm” test was a necessary limit on criminal liability.

What the Supreme Court has now done is maintain the “significant risk” test but stripped “significant” of its meaning — by setting the bar at such an exceptionally low level of transmission risk. In these cases, the court only accepted both condom use and low viral load together as a defence.