R. v. Carrier case
In 1992, Henry Cuerrier tested positive for HIV. Currier
then had unprotected vaginal sexual relations with two different women at
different times over the course of two years. However, Cuerrier failed to
disclose his HIV status across these two years of being sexually active with
other individuals. Once both women discovered that Cuerrier was HIV-positive,
he was charged with aggravated assault although both women tested to be
HIV-negative (CATIE, 2020; Department of Justice Canada, 2017 pp.11 & 35).
Image 1.
The Canadian federal law at the time determined that because
both women had consented to their respective sexual relations with Cuerrier,
Cuerrier was innocent. After 1998, thus six years later, the Supreme court
ruled Cuerrier guilty because he failed to disclose his HIV status to both
sexual partners. The sentence determined was “fraud” because he failed to
disclose his sero-positive status. It was seen as a “significant risk to bodily
harm”. (Del Gobbo, 2009).
The Supreme court of Canada (SCC) had three components to
legally define an HIV non-disclosure case: committed an act that
well-intentioned individuals would view as dishonest, there was a risk of harm
that motivated the plaintiff to make a complaint toward to perpetrator, the plaintiff would have not consented if they knew the perpetrator’s HIV status
(Department of Justice Canada, 2017 pp.12). Although both plaintiffs consented
having sex with Cuerrier, the circumstances were seen as non-consensual, which
turned the situation from a consensual sexual intercourse to a case of sexual
assault. This is all due to Cuerrier failing to reveal his HIV-positive status.
The collectivity’s security outweighed the individual’s rights. The Cuerrier
case has influenced subsequent ones because there have been similar HIV
non-disclosure cases in which the perpetrator was prosecuted.
Although the Canadian government attempted to intervene,
there appears to be a lack of public willingness to disclose one’s status. A
solution would be to raise more social awareness on the consequences of HIV
non-disclosure and the serious risk it poses, such as a potential increase in
HIV propagation rates and “bodily harm”. (Department of Justice Canada 2017,
pp.28; Mykhalovskiy 2011, pp.669)
A set of gaps that remains to be filled in the situation of
HIV non-disclosure is the following: Cuerrier has failed to “define what
constitutes a significant risk, nor establish clear parameters for determining
when a significant risk has occurred.” (Mykhaloyskiy 2011, pp.679). A final gap
that needs to be filled regards cases where HIV non-disclosure targets situations
other than vaginal sexual intercourse (i.e. anal, oral) (Mykhaloyskiy 2011,
pp.679).
References
CATIE. (2020). HIV in Canada: A primer for service
providers. Criminalization on HIV non-disclosure.
Del Gobbo, D. (2009). (In)Forming Consent: R.v. Cuerrier and
the Criminalization of HIV. Retrieved from http://www.thecourt.ca/informing-consent-r-v-cuerrier-and-the-criminalization-of-hiv/.
Department of Justice Canada. (2017). Criminal Justice
System’s Response to Non-Disclosure of HIV. Retrieved from https://www.google.com/search?q=Criminal+Justice+System%E2%80%99s+Response+to+Non-Disclosure+of+HIV&sxsrf=ALeKk00yh5KpGBdUOgcCR06I405Irlnzeg:1605296789982&source=lnms&sa=X&ved=0ahUKEwjm3rPHpIDtAhUmn-AKHW9fD8IQ_AUICigA&biw=1290&bih=748&dpr=0.67.
Image 1. Fulcrum. The criminalization of HIV non-disclosure. Retrieved from https://thefulcrum.ca/features/the-criminalization-of-hiv-non-disclosure/.
Mykhalovskiy, E. (2011). The problem of “significant risk”:
Exploring the public health impact of criminalizing HIV non-disclosure. Social
Science & Medicine, 73, 668-675.