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HIV, Consent and Criminal Wrongs

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

22 Pages Posted: 18 Jan 2012 Last revised: 27 Jun 2013

Carissima Mathen

University of Ottawa - Common Law Section

Michael Plaxton

College of Law, University of Saskatchewan

Date Written: September 15, 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.

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

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: https://ssrn.com/abstract=1927932

Carissima Mathen (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

Michael Plaxton

College of Law, University of Saskatchewan ( email )

15 Campus Dr
Saskatoon, Saskatchewan S7N5A6
Canada
3069665894 (Phone)

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