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Criminalization of HIV

Course Code
Robb Travers

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Lecture 11
Criminalization of HIV non-disclosure: the limits of the law
Alison Symington
-Canadian HIV /AIDS legal network
Looking at sex that is otherwise consensual if HIV is not there
The role of criminal law
o1988 first criminal charges for HIV exposure or transmission
o1998 looked at at the first casecalled R.v Cuerrier
oWorld leader
Number of charges
Prosecute in relation to vertical transmission (mother to daughter)
Prosecute due to murder
oUS is like us
oOther countries have laws as well
oModel law sample law in 2005 that spread through other African countries
oSince 2000 it has become an international issue
-Does criminal law have a role to play in responding to the HIV epidemic in Canada
oQuote from original case 1988 (on lec slides)
-In 2010 there was a cericumstance where the man did not disclose but judge took into account the
risk rate which was very small

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Criminal Law
-Crime = criminal act and guilty mind
-Ignorance of the law is not a defence
-Issue of consent
oTrue consent cannot be given if there has not been a disclosure by the accused of his HIV
positive statues
oNot just consent to have sex its consent to the other risks that are involved
-Assault on slide
- Aggravated Assault endangers someones life of the complainant
-Aggravated sexual assault
oThese are laws that are what is prosecuted in Canada today
-Limits for
oWhen there is a significant risk, then one is required to disclose HIV status
oSignificant risk ie) man not on treatment no condom
oWhat is significant risk?
When is there a significant risk
-Murder charges – non discloser + transmission
oExample a person transmitted to 2 women and they have died from it thus it is murder instead
of above
-Hard to say what is significant
oWhat happens with lower risk activities drug use and breast feeding
-Sex when condoms were used did not pose a legally significant risk requiring disclosure
oManitoba and qubec courts
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