(In)Forming Consent (cont.): R. v. Cuerrier and the “Duty to Enquire”

Moving Beyond the Unilateral Duty

Last week, I broadly surveyed the benefits and detriments flowing from R. v. Cuerrier, [1998] 2. S.C.R. 371, the case enabling the Crown to prosecute sero-positive individuals who fail to disclose an HIV transmission risk. While Cuerrier’s “duty to disclose” does serve the social imperative that express misrepresentations of serostatus in the context of unprotected sexual relations are penalized and deterred, I argued that the duty is belied by its unilateral application.

Given the considerable vigour with which the Crown has enforced legal obligations on sero-positive partners only – already a questionably unethical practice in light of the duty’s effects of deterring STI testing and perpetuating discrimination of people with HIV/AIDS – I believe the courts are well suited to remedy these effects by imposing reciprocal obligations in the form of a “duty to enquire” on sero-negative partners.

The new duty to enquire would conceivably operate in parallel to the existing duty to disclose, with one’s failure to raise the issue of HIV resulting in a lessened degree of moral blameworthiness being assigned to the non-disclosing partner in some situations.

Cuerrier’s cursory evaluation of such an obligation, while sensitive to the dynamics present in many relationships preventing partners from taking ownership of their practices and “enquiring” about serostatus, ultimately fails to appreciate the breadth of productive consequences that would result from its application.

The Parallel Duty and its Recollection of “Mutual Responsibility” to Avoid Infection

While the Cuerrier majority acknowledges that all members of society should appreciate the risks of their sexual practices and take steps to reduce those risks, it rejects any imposition of reciprocal duties in relationships. “The responsibility cannot be lightly shifted,” it writes, “to unknowing members of society who are wooed, pursued, and encouraged by infected individuals to become their sexual partners.”

This brief pronouncement is the Supreme Court’s sole engagement with the potential imposition of an obligation to enquire about a sexual partner’s serostatus prior to engaging in unprotected intercourse. In my view, it affords sero-negative individuals little role in forming their own consent to assuming significant risks. And this is despite the duty to enquire not being an unreasonable expectation (for most individuals) in our current social climate. Rather, in contravention of more balanced policies of “mutual responsibility” in relationships emerging in the mid-1990s, Cuerrier seems to flout the rapid “broadening of the arena of private space through the construction of sexualized communities, where the possibilities of safer sexual behaviour can be easily discussed.”

In practice, this translates to an observable change in relationship dynamics: sexual etiquette is more often relaxed, so as to allow – and ideally, invite – consideration of health issues and the development of safer sex strategies between partners before they engage in unprotected intercourse. Through such consultation, individuals cannot so much as eliminate possible risk of coming into contact with HIV, but may seek a balance between risk and trust through the pragmatic adoption of barrier methods.

Promoting “mutual responsibility” in relationships by way of a duty to enquire reflects the growing empowerment of all persons to take ownership of their sexual practices. Such empowerment is implied in the Cuerrier decision itself, insofar as it requires the Crown to prove that a sero-negative person would not have consented to unprotected intercourse had he or she been aware of the significant risk. Logically, if that person’s hypothetical lack of consent upon disclosure of serostatus can be established, implying sufficient agency to influence the interpersonal exchange, why not exercise that agency to make an enquiry in the first place?

Redressing Problems of Deterred Testing and Discrimination against People with HIV

Further, as explained in last week’s post, a number of the unilateral duty’s incidental consequences run contrary to public health objectives, including its deterrent effects on sero-positive individuals seeking treatment. I believe that a legal mandate to encourage reciprocal responsibilities in relationships would create an additional incentive for at risk individuals to get tested, as their sero-negative partners’ may make enquiries before unprotected intercourse proceeds. This would create opportunities for discussion of safer sex strategies, helping to unburrow those wilfully blind to the fact that they may be HIV-positive from the underground.

Also, the imposition of a parallel duty would help stave off the systemic discrimination of people with HIV/AIDS, perpetuated in part by the courts which implicitly hold sero-positive individuals entirely responsible for the transmission of infection. The duty would require that both sero-positive and sero-negative partners assume such responsibility, helping to dispel notions that the disease (and, by extension, sero-positive persons themselves) are being criminalized. Further, it would popularize a more positive engagement with sexual health issues across various groups, spurring consideration of educational materials that rebut discriminatory notions with inclusive messages.

Distinguishing Express Misrepresentation from Omitted Disclosure of Serostatus

Appreciating these productive effects of mandating reciprocal responsibilities in sexual relations, I should clarify that imposing a “duty to enquire” would not be appropriate in all situations.

Specifically, Cuerrier fails to distinguish situations of blatant deceit by express misrepresentation, in which sexual partners do make an enquiry as to serostatus only to be fed reassuring falsehoods inducing their consent, and situations of an omission, in which partners do not make an enquiry as to serostatus and are not offered information either way, with assumptions of sero-negative status inducing their consent. With such grave consequences flowing from HIV transmission, the majority finds that similar degrees of blameworthiness attach to both scenarios, despite the active and passive role, respectively, assumed by sero-negative partners in dictating the conduct of their sero-positive partners.

McLachlin J. (as she then was) registers objection to this equation of the scenarios, criticizing the majority’s approach for omitting the requirement that fraud must induce consent. She finds that for a sero-negative partner not to make an enquiry is tantamount to creating the “significant risk of serious harm” being alleged.  In other words, since the sero-negative partner (acting prudently) should assume that everyone is sero-positive, he or she voluntarily assumes a significant risk by not soliciting mutual disclosure. In McLachlin J.’s model, the non-disclosing partner does not induce consent to sex because the sero-negative partner need not be induced at all – already, he or she has implicitly consented.

My primary justification for imposing a parallel duty to enquire, operating in tandem with the duty to disclose, recalls McLachlin J.’s criticism in its appreciation of our evolved social climate, in which both partners in relationships are perceived to have reciprocal responsibilities with respect to sexual health. In no way to derogate from the moral reprehensibility of express misrepresentations as to serostatus, the “blame” for transmission in situations of omitted disclosure can no longer be directed at sero-positive persons alone. For the courts to acknowledge that fact would also be to assume a less paternalistic tone with regard to sexual autonomy, as the existing unilateral duty perceives the contributions of sero-negative partners to be legally irrelevant in determining the validity of their own consent.

Refiguring “Buyer Beware”

To reconceptualize the debate by way of a crude business metaphor, mandating a parallel duty in these situations arises from a construction of risk scenarios in which the parties involved are autonomous actors, communicating unambiguously in the marketplace of social relations, and where the caveat emptor principle, or “buyer beware”, ought to apply.

In the realm of private ordering, everyone is expected to act in ways that rationally maximize their returns. Similarly, in sexual relationships, public health authorities recommend that everyone act defensively to protect themselves from HIV transmission. Save for situations of fraudulent misrepresentation, which may rightfully void an agreement or vitiate consent, caveat emptor does, and in my view, should hold in contract and criminal law.

Instead, R. v. Cuerrier and ensuing decisions inequitably minimize the responsibility of sero-negative people in avoiding the spread of HIV.  The imposition of the duty to enquire, however, in situations of an omission to disclose sero-positive status would align the criminal law with caveat emptor and a reasonable expectation of reciprocal responsibilities in sexual relations.

An Exception to the Parallel Duty: Situations of Power Imbalance

There is an exception to the “buyer beware” principle that bears on applications of the duty to enquire in situations of an omitted disclosure – namely, the unconscionability doctrine in contract law providing that agreements may not bind two parties between whom a gross inequality of power exists. My advocacy of a less paternalistic tone in judgments, lobbying for some recognition of joint obligations in the criminal law, cannot fail to appreciate situations in which it may be difficult, and even dangerous to broach discussions about sexual health before engaging in unprotected intercourse.

Circumstances may be most dire for individuals in abusive relationships, concerned that some semblance of resistance to their partner’s advances – whether in the form of an outright enquiry as to the results of HIV testing, an expressed fear of contracting diseases generally, or quiet efforts to situate a latex barrier – will prompt an aggressive response. In situations of considerable power imbalance, where the risks of physical violence subvert intentions and will, it would be extremely insensitive to impose legal expectations of autonomy upon both partners.

Persons in such circumstances are exceedingly vulnerable, often constrained in efforts to control their sexual practice by a variety of compounding factors. For instance, they may fail to grasp the severity of health consequences stemming from unprotected intercourse, be uninformed about or unable to procure safer sex products, and/or be doubly or triply displaced by virtue of their race, class, gender, disability, sexual orientation, or other condition.

Already, research suggests that 88% of sexual assaults go unreported in Canada. To add the additional burden of a reverse onus upon the heads of potential complainants, requiring some proof of having made an informed enquiry prior to engaging in sex acts with their sero-positive partner, could have the adverse effect of deterring them from reporting sexual crimes.

Reflecting this important concern, there may be public outcry if the imposition of a duty to enquire was not excepted for individuals in abusive relationships or those otherwise lacking the capacity to discharge it. Given that any future judicial action with respect to disclosure obligations is likely to fall in step with popular opinion, for a parallel duty to be palatable – indeed, for it to be ethical – such an exception must be carved out.

The Scope of the Parallel Duty and its Potential Effects on Charges and Sentencing

Indeed, appreciative of relationships in which an inequality of bargaining power exists, the scope of the duty to enquire may be best framed in inverse terms to the unilateral duty. Cory J. describes the latter as “increas[ing] with the risks attendant upon the act of intercourse,” or, put another way, “the greater the risk of deprivation the higher the duty of disclosure.” It follows that the parallel duty would decrease in extent with the risks attendant upon broaching sexual health issues prior to intercourse. This framework accommodates all situations – where the (often gendered) power dynamics within sexual relationships disable individual autonomy, parallel obligations are lessened, and where these power dynamics do not exist, obligations are expanded.

Recalling that omitted disclosure carries a lesser degree of moral blameworthiness than an express misrepresentation, the application of the duty to enquire in situations of an omission could take a number of forms. In my view, the most appealing form of the parallel duty would be to preclude serostatus non-disclosure in the event of a non-enquiry as sufficient to constitute fraud, vitiating consent in all forms of assault charges. Doing so would be to recognize, as McLachlin J. does in Cuerrier, that non-enquiring partners (again barring some exceptions), by failing to act defensively to protect themselves from infection implicitly consent to potential transmission.

Under this scheme, disabling assault charges would only have the effect of restricting prosecutions, not inhibiting them, as the Crown remains enabled to pursue non-disclosure under criminal negligence, common nuisance, and murder provisions. Given that the latter is yet quite rare, with Johnson Aziga being the first case in Canada, these restrictions would result in more lenient sentencing for future offenders, as convictions for criminal negligence and common nuisance often mandate less serious penalties than offences of assault, which corresponds to the lower social stigma attached to omissions than to express falsehoods.

The Duty to Enquire as a Duty of Care

The duty to enquire does not operate independently of the duty to disclose, but necessarily flows from non-disclosure – it reflects a duty of care to oneself, if I may, which arises in inherently risky situations. It may be said to resemble one’s civil duty to wear a seatbelt while driving, “not only on long trips, but also on short ones. Not only in the town, but also in the country. Not only when there is fog, but also when it is clear. Not only on motorways, but also on side roads.” All drivers assume risks upon getting behind the wheel, as all partners assume risks upon having unprotected intercourse – not only in straight contexts, but also in gay contexts, and not only in fluid-bonded relationships, but in fleeting encounters as well. We owe it to ourselves to make informed enquiries, and a parallel duty would do well to affirm that.