When Failure to Disclose HIV-Positive Status Vitiates Consent to Sex in Canada
Journal of Commonwealth Criminal Law, 2012 (November), pp. 366-376
11 Pages Posted: 7 Feb 2013 Last revised: 8 May 2013
Date Written: November 30, 2012
A number of jurisdictions have grappled with a particularly difficult question in respect of the Human Immunodeficiency Virus (HIV): when does failure to disclose that one is HIV-positive, combined with engaging in otherwise consensual sexual relations, make that act of engagement in sex a criminal offence?
In two recent cases, the Supreme Court of Canada examined this question. The cases ultimately turned on rather different matters, but were heard in tandem. This case note focuses first on Mabior, then outlines its “sister case” of D.C. Together, they provide a good understanding of the current Canadian approach to the criminalisation of exposure to HIV without disclosure – treating it as a sexual offence, rather than an offence against the person. The case note draws out the "Williams Paradox" and the use of statistics in the cases. It compares the Canadian approach to that in England and Wales, Australia, and New Zealand.
Keywords: HIV/AIDS, Sexual Assault, Rape, Criminal Law, Comparative Law, Offences Against the Person, Sexual Offences, Transmission of HIV
JEL Classification: K14, K42
Suggested Citation: Suggested Citation