The Boundaries of the Criminal Law: The Criminalization of the Non-Disclosure of HIV

Abstract

In this paper, the author examines the trend toward the increased criminalization and punishment of persons with HIV who fail to inform their sexual partners of their HIV-positive status. Since the Supreme Court of Canada's decision in R. v. Cuerrier, such behaviour may constitute aggravated assault or aggravated sexual assault, the latter offence carrying a maximum sentence of life imprisonment. The paper surveys the Canadian case law and highlights the trend towards the imposition of increasingly harsh sentences. After reviewing public-health and criminal law options for dealing with non-disclosure of one's HIV status, the author concludes that criminal law should only be invoked in the most serious circumstances and only where all other public health measures have been exhausted. Criminal law should be reserved for individuals who demonstrate a pattern of non-disclosure either over time or with different sexual partners. The author also explores the social and legal reasons behind the apparent contradiction that, despite the improved prognosis for persons with HIV sentences for those who knowingly transmit the virus have become increasingly severe.

Keywords: Canada, Criminal law, Sexual assault, AIDS (Disease), HIV, Condoms, Criminal responsibility, Health, Sexual intercourse, Non-disclosure, HIV-AIDS status