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Article
The Complex Legacy of R. V. Cuerrier: HIV Nondisclosure Prosecutions and Their Impact on Sexual Assault Law
Alberta Law Review
  • Isabel Grant, Allard School of Law at the University of British Columbia
Faculty Author Type
Current Faculty [Isabel Grant]
Document Type
Article
Publication Date
1-1-2020
Subjects
  • sexual assault,
  • consent,
  • fraud,
  • HIV nondisclosure,
  • R v Hutchinson
Disciplines
Abstract

This article examines the impact of the Supreme Court of Canada decision in R. v. Cuerrier from two vantage points. First, the article examines the impact of the decision on HIV nondisclosure prosecutions. Second, it examines the damage done by Cuerrier to sexual assault law outside of the HIV context. The article argues that Cuerrier has both overcriminalized people living with HIV and distorted the law of sexual assault. Through Cuerrier, and subsequent cases, the Supreme Court of Canada has unduly limited the concept of consent and its voluntariness requirement, and distorted the concept of fraud such that deceptions around sex are only criminalized where they cause a significant risk of serious bodily harm. It is argued that legislatively removing HIV nondisclosure prosecutions from the scope of sexual assault offences, and making corresponding changes to the definition of consent, is the only way to remedy the harm done to people with HIV and to sexual assault law more generally.

Citation Information
Isabel Grant, "The Complex Legacy of R. V. Cuerrier: HIV Nondisclosure Prosecutions and Their Impact on Sexual Assault Law" (2020) 58:1 Alta L Rev 45.