Abstract

http://ssrn.com/abstract=1927932
 


 



HIV, Consent and Criminal Wrongs


Carissima Mathen


University of Ottawa - Common Law Section

Michael Plaxton


University of Saskatchewan - College of Law

September 15, 2011

Criminal Law Quarterly, Vol. 57, No. 4, p. 464, 2011

Abstract:     
Over a decade has elapsed since, in R. v. Cuerrier, the Supreme Court of Canada concluded that those who knowingly fail to disclose HIV positive status to their sexual partners are criminally culpable. Since then, the use of the criminal law in these circumstances has been criticized. It is suggested, in particular, that advances in the treatment of HIV-AIDS render several of Cuerrier’s key premises tenuous and in need of reconsideration. The Supreme Court has created an opportunity for such reconsideration in two appeals: R. v Mabior and R. v. DC. In this article we suggest that the Court should reconsider Cuerrier in a fundamentally different way, engaging more squarely with the boundaries of sexual assault. We believe that much of the criticism of Cuerrier, while thoughtful and important, proceeds from questionable premises of criminal responsibility that carry serious implications for the concept of consent to sexual activity.

Number of Pages in PDF File: 22

Keywords: criminal law, sexual assault, HIV-AIDS, consent

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Date posted: January 18, 2012 ; Last revised: June 27, 2013

Suggested Citation

Mathen, Carissima and Plaxton, Michael, HIV, Consent and Criminal Wrongs (September 15, 2011). Criminal Law Quarterly, Vol. 57, No. 4, p. 464, 2011. Available at SSRN: http://ssrn.com/abstract=1927932

Contact Information

Carissima Mathen (Contact Author)
University of Ottawa - Common Law Section ( email )
57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

Michael Plaxton
University of Saskatchewan - College of Law ( email )
Saskatoon Saskatchewan
Canada
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