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HIV, Consent, and Criminal Wrongs- Mathen and Plaxton.docx

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University of Toronto Mississauga
Nicole Myers

HIV, Consent, and Criminal Wrongs- Carissima Mathen and Michael Plaxton Introduction  In 1988, the SCC concluded that failure to disclose HIV positive status attracted criminal culpability though it was no unanimous on precise contours of liability  Cases were to be analyzed under rubric assault, in particular aggravated assault which required knowing “endangerment” of complainant‟s life/health  Critics argue that use of criminalization is not suited to what is a public health concern  R.v. Mabior and R.v.C. (D.) o These cases ask if Cuerrier remains the optimal framework for analyzing scope of criminal liability in cases of deliberate failure to disclose HIV-positive status  Cuerrier relied on concept of fraud and central to its analysis is “harm” o Authors suggest that court should reconsider Cuerrier case and engage more with boundaries of sexual assault Landscape of Cuerrier  1998 SCC- assault provisions under CC adequate to hold someone who fails to disclose HIV(+) status to sexual partner  Henry Cuerrier tested positive for HIV in 1992 when he was instructed to use condoms and to inform sexual partners of his status  Met two women (KM and BH); had unprotected sex with KM who repeatedly asked about STDs but HIV in particular – continued to have unprotected sex after KM found out about Cuerrier‟s status  Later had a relationship with BH and had unprotected sex several times  Both women testified if they knew of his status, they wouldn‟t have had unprotected sex with him; neither complainant tested positive for HIV by time of trial  Charged with two counts of aggravated assault  Cuerrier acquitted and this decision was upheld by Court of Appeal of BC; SCC set aside this verdict and ordered new trial  Justice Corry, Justice McLachlin and Justice Gontheir and Justice L‟Heureux Dube o All opinions take statutory provisions defining assault as non-consensual application of force  Chief question in Cuerrier was whether “fraud” in s.265(3)(c) includes use of deception concerning HIV status to induce consent to sexual relations o The words “fraud as to nature and quality of act” corresponded to old common law rule that consent to sex was vitiated if complainant gave it (a) under misrepresentations as to nature of sexual act or (b) under a deliberately induced misunderstanding going into identity  Ultimately, the entire court agreed that new approach was warranted; different views on what it should be  All justices agreed that appropriate ground of inquiry was s.265(3)(c) and focused on what constitutes “fraud”  While all opinions reference offence of sexual assault, none of them engage with specific Code provisions enacted in 1992 which for the first time said consent as an functioning and distinct concept for sexual offences, including conditions under which (a) consent to sexual activity does not obtain and (b) the accused can rely on defence of honest but mistaken belief in consent  Decision doesn‟t engage in depth the public health implications of criminalizing the non-disclosure of one‟s HIV- positive status  Criminalization of non-disclosure would discourage testing, undermine education efforts or unfairly stigmatize those who are HIV positive Post-Currier Universe  Case requires us to ask if risk posed by defendant is “significant”; Deci
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