(In)Forming Consent: R. v. Cuerrier and the Criminalization of HIV
Criminalizing Non-Disclosure, Cuerrier and Beyond
In September 1998, the Supreme Court of Canada ruled in R. v. Cuerrier,  2. S.C.R. 371 that disclosure of sero-positive status is required to legally validate consent in sexual relations that pose a significant risk of transmitting HIV. What has followed is a lengthy series of HIV-related prosecutions, numbering in the seventies, which culminate most notoriously in April’s first degree murder conviction of Johnson Aziga – the first person in Canada to be convicted of murder for not disclosing a transmission risk.
A number of advocacy groups have registered alarm at Aziga’s verdict, decrying a seeming escalation in charges related to non-disclosure “from criminal negligence to assault to aggravated sexual assault and now murder,” as well as an increase in the severity of sentences stemming from non-disclosure. In the face of considerable criticism, all levels of courts in Canada have resoundingly endorsed the Cuerrier decision, including the Supreme Court in R. v. Williams,  2 S.C.R. 134. (Incidentally, only four days ago, the SCC dismissed an application for leave in Imona-Russel v. The Queen,  O.J. No. 5405 a case with similar facts as Cuerrier but in which unique procedural issues were on appeal.)
In this first of two posts concerning the Cuerrier case, I will report on the benefits and detriments flowing from the Crown’s directive to prosecute non-disclosure of sero-positive status. Minding the obvious moral reprehensibility of expressly misrepresenting one’s serostatus in the context of unprotected sexual relations, as well as the pressing need for our criminal law to penalize such misrepresentations, I believe that Cuerrier’s deleterious consequences outweigh its productive contributions to public health.
Next week, I will advocate for the implementation of parallel obligations on sero-negative sexual partners in certain circumstances, to operate in tandem with obligations on sero-positive partners, to legally redress these deleterious consequences.
Cuerrier, In Brief
The Cuerrier decision arose out of a complex fact scenario, in which the respondent, knowing himself to be HIV-positive and instructed by public health officials to inform future sexual partners of the fact, had unprotected penetrative sex with the two complainants numerous times over a two year span without disclosing his serostatus. He was charged with two counts of aggravated assault, though at the time of trial neither complainant had tested positive for the virus.
The Supreme Court unanimously held that Cuerrier’s non-disclosure of sero-positive status could constitute “fraud” and thereby vitiate his partners’ consent to sexual relations. Though three concurrences were issued outlining divergent definitions of fraud, all justices agreed that the “duty to disclose” is mandated by law before any person, whether transmitting HIV or another sufficiently dangerous infection, engages in sexual conduct that carries with it a “significant risk of serious bodily harm”.
Justifying Cuerrier: Protection in the Form of Deterrence
Legal obligations to disclose sero-positive status in sexual relations arose out of the perceived inadequacy of the public health system to control the spread of HIV. Not to derogate from the good work of public health authorities to mandate testing, monitor transmission, enforce reporting obligations, and provide treatment of people suspected of being infected, which is bolstered by existing networks of education, counseling, and support services for those already infected, Cuerrier illumines an inherent weakness of these endeavours.
Without recourse to punitive sanctions or some similar means of whipping obedience, HIV prevention becomes entirely a matter of conscience. A doctor’s warning to disclose serostatus may be heeded by a majority of HIV-positive individuals, but a few may need some greater disincentive than carrying the emotional burden of having possibly spread disease before they will affect their behaviour – perhaps because they lack education, believe disclosure would interfere with the “flow” of sexual activity, or fear rejection and/or an aggressive response from their partner.
The Supreme Court’s primary justification for the duty, then, is to provide some measure of protection in the form of deterrence, reflecting “society’s abhorrence of the self-centred recklessness and the callous insensitivity of the actions of the respondent and those who have acted in a similar manner.” The potential for felony conviction may very well have the effect of ensuring that there is disclosure of significant risk, which may enable partners to better inform their consent and take appropriate precautions in their sexual activity.
Adverse Effects on Non-Disclosure and Seeking Treatment
Detractors from the deterrence rationale suggest that criminalizing non-disclosure of sero-positive status may actually have adverse impacts on the fight to reduce the spread of HIV. The duty may discourage individuals from getting tested, especially those who practice unprotected sex and are wilfully blind as to whether or not they are HIV-positive, “even if they suspect they may have the HIV virus in order to protect the knowledge that they don’t have it.”
Indeed, many fear the spectre of discrimination stemming from the disease, observing sero-positive friends and colleagues subjected to it on a frequent basis. Some may fear the potentially ruinous effects of sero-positive status on their sex life, believing any disclosure of an intractable virus to likely deaden foreplay. Further, others may be in relationships of considerable power imbalance, where it is difficult and even dangerous to broach discussions of sexual health before submitting to unprotected intercourse. Such circumstances may be most dire for prisoners, sex workers, and women (or others) in abusive relationships, concerned that disrupting their partners’ advances will prompt a violent response.
However rational their reasoning, a blanket duty may force these individuals to choose between abstaining from unprotected sexual relations and becoming criminals. If neither alternative appeals to them, they may be driven underground, preferring consoling delusions of ignorance to inescapable reality, so as to impede public health efforts to provide treatment and prevent transmission of HIV.
The Cuerrier majority was quick to dismiss, for want of hard data, the concern that prosecuting fraud as to sexually transmitted infections could create an additional barrier to testing or access to health services. “It is unlikely,” Cory J. wrote, “that individuals would be deterred from seeking testing because of the possibility of criminal sanctions arising later.” Yet the majority simultaneously accepts their primary justification for imposing sanctions – the deterrent effect of criminal sanctions on sero-positive people who might otherwise put sexual partners at risk – notwithstanding a similar dearth of evidence to support that claim. Few research studies have attempted to investigate the effects of HIV criminalization on everyday risk prevention, and Cory J. cites none.
Perpetuating Discrimination against People with HIV/AIDS
The imposition of a “duty to disclose” on sero-positive persons only implicitly endorses a model of human behaviour that holds these individuals to be entirely responsible for the transmission of infection. Cuerrier and ensuing prosecutions recall a much longer history of the politics of “innocence” and “blame” surrounding HIV transmission in the 1980s, which produced a number of ill-advised proposals circulating in the public sphere, driven by panic, that called for the quarantine, criminalization, and other restrictions of the rights and mobility of “blameworthy” sero-positive persons. Despite the more recent popular propagation of education materials to remediate the damage done, the lingering effect of these hostile politics was to pervade discriminatory associations of HIV infection with promiscuity, potential pollution, and the source of germs, disease, and death in the form of AIDS.
Though Cory J. contends that his decision does not perpetuate stigma surrounding persons with HIV, as “the further stigmatization arises as a result of a sexual assault and not because of the disease,” his reassurance rings hollow in its lack of consideration of how the duty to disclose may actually be experienced by people living with HIV/AIDS.
Rather, the Cuerrier decision betrays an ignorance of an adverse effect of mandating disclosure – namely, the institutionalization (and therein, legitimization) of discriminatory associations in unilateral obligations. Proponents of prejudice toward people with HIV, whether plain-spoken in their views or harbouring internalized suspicions, are emboldened by the Crown’s strengthened directive to prosecute transmission, as the onus of responsibility now falls squarely upon the “sources” of insidious infection.
Their prejudice is reinforced by the Crown’s asymmetrical application of its strengthened directive, as its recurring prosecution of the transmission of HIV, at the expense of other STIs, contributes to a “negative aura around the disease.” Though the Supreme Court does not preclude broader applications of the law – indeed, Cory J. finds that the “significant risk” test “is sufficient to encompass not only the risk of HIV but also other sexually transmitted diseases” – the test’s high threshold would seem to do so in practice, or else the Crown can only be said to target sero-positive offenders.
Research suggests that a number of STIs have the potential to bring about fatal conditions not unlike an AIDS-related illness – to cite two examples, syphilis may cause dementia if left untreated and human papillomavirus (HPV) may induce cervical or anal cancers. However, the dearth of Cuerrier prosecutions stemming from the transmission of any other STI, of which many could cause sufficiently “serious harm” to invoke the criminal law, relays the message that the indiscretions of sero-positive people (and, by extension, sero-positive people themselves) are somehow more deserving of sanction than others. This unitary designation of blame recalls the outdated, “panic-driven” politics of the 80s and its lobby for criminalization of the disease itself. Such a recollection reinforces negative stereotypes, and may inspire exclusionary or dangerous actions and policies that perpetuate discrimination against people with HIV.
Proposals for Redress
While an outright revocation of the duty to disclose would be questionably unethical and prove politically disastrous, in that fraudulent misrepresentations of serostatus flout accepted standards of approved conduct, there exist a number of potential legal remedies, operating in parallel to existing laws, which the Supreme Court of Canada should consider. My proposal of one such remedy will follow next week.
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