HIV, Consent and Criminal Wrongs

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