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Lecture #9 .doc

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Nicole Myers

Lecture #9 Thursday, November 8, 2012 SOC323 Criminalization of HIV Non-Disclosure HIV Transmission • unprotected sexual intercourse • a lot of the time it is the infections that come along with HIV, not actual HIV • contaminated blood • sharing needles • pregnancy and breast feeding • thought of as something that is more common in a lot of drug users because of sharing of nee- dles you can not get it from: • • airborne routes • sharing clothing, towels, boot, • pets/insect casual skin contact • • hiv transmitted through bodily fluids • no cure at this time, a lot of medical advances that can diminish the viral load Stats Canada HIV/Aids the estimated per-act risk of transmission from an HIV-positive women to a male sexual part- • ner through vaginal sex is 1 transmission 1 in every 2500 sexual encounters • when an HIV-positive women’s viral load is low, the risk of HIV transmission to her male sex- ual partners drop to 1.3 expected transmissions in 10000 sexual encounters • when a condom is used the risk id 1 in 12500 sexual encounters • from 1989-2012, more than 130 people have been charged for HIV non-disclosure in Canada • failure to disclose has been charged with aggravated sexual assault, carries a maximum penatly of lifetime in prison R. V. Cuerrier HIV positive • • unprotected sex with two women • women said if had known status would not have had unprotected sex • charged with two counts of aggravated neither contracted HIV Trial judge acquitted • • court ofAppeal BC upheld acquittal • Supreme court ordered new trial • -rendered 3 opinions • -disagree on what approach should be • assault: non consensual ... of force • S. 265(3) (C) • for the purpose of this section, no consent is obtained where the complainant submits or does not resist by reason of • c fraud • fraud had never been used in this context before Supreme Court 1998 • Majority (Cory, j) • must be exposed to significant risk • commercial ideas of fraud • in particular to personal issues when they are looking at impersonal reasons • dishonest must relate to “the obtaining of consent to engage in sexual intercourse, in this case, unprotected sexual intercourse, in this case, unprotected intercourse” fraud has two elements • • a deception • a (risk of) deprivation • to decide this, a person exposed to the risk must be in serious harm, this serious risk is anytime there was unprotected intercourse • McLauchlin • she had suggested that Cory’s rule only to when someone was in bodily harm, this some- how said that the majority over simplified the diverse nature of consent, she proposed a 19th century jurisprudence, the deception, simply by having a disease would undo any con- sent, if any consent was given it did not count if there was a disease • L’Heureax- Dube • more broad approach to fraud • did a dishonest act induce consent? • it didn't matter if it was risky or not made it a crime to not reveal status if there was a significant risk of transmission to • their partner • act of non disclosure • a criminal offense to not disclose their HIV status, could be charged with aggravated as- sault, and life imprisonment • one of the
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