SOC309Y1Y—LECTURE: Feb. 02/07/14
Criminalization of HIV Non-Disclosure: The Limits of the Law—Alison Symington
Is criminalization of HIV non disclosure a good thing?
• In Canada, a person living with HIV can be prosecuted for not disclosing their HIV+
status prior to having any sex that represents a “significant risk of serious bodily harm.”
o Note that... People can be prosecuted even if the virus is not transmitted—and no
physical harm done unto the sexual partner
• If convicted for not disclosing, a person living with HIV will spend time in jail and be
registered as a sexual offender.
Canada’s HIV Non disclosure law milestones:
• 1988: 1 Criminal exposure or transmission
• 1998: R v. Currier “aggregated sexual assault”
• 2012: “Realistic possibility of HIV transmission
Canada has become a “world leader” and is quite aggressive in theAIDS/HIV laws
• broad use of criminal law for HIV exposure
• high number of charges and convictions
• first to prosecute in relation to vertical transmission of HIV
• first murder conviction for sexual transmission of HIV
Elsewhere in the world:
• Laws criminalizing HIV exposure or transmission have spread (Europe,Australia and
New Zealand, Asia andAfrica) some use existing laws, some draft specific laws.
• In 2000s there has been a spike of criminalizing. But recently some countries have been
revising and revisiting previously enacted laws on HIV.
• There has also been considerable advocacy and debate at the international level (e.g.,
UNAIDS, Global Commission on HIV & the Law, InternationalAIDS conferences,
Criminal code S. 265 of Criminal Code:
1. Aperson commits assault when he/she intentionally applies force to another person
without their consent.
2. This section applies to all forms of assault.
3. There is no consent where the person submits or does not resist because of:
• use of force;
• threat or fear of force;
• fraud; or
• Exercise of authority.
Fraud vitiating consent to sex • Pre-Cuerrier:
a) Deceptions about the identity of the sex partner; and
b) Deceptions about the nature and quality of the act.
a) Deceptions about the identity of the sex partner;
b) Deceptions about the nature and quality of the act; and
c) Deceptions that exposes the complainant to a “significant risk of serious bodily
What is it about HIV non-disclosure that makes it a fraud which invalidates consent to sex?
• Consent = subjective, in the moment—WHAT is ENOUGH CONSENT?!
• Protecting individual’s autonomy & right to know before sex...
• Why use criminal law?
• To deter risky behaviour... but does criminalizing HIV = blaming?
• Can we resist “criminalization creep”?
R v. Mabior 2012
• Courts focused on aut