R v Cuerrier
R v Cuerrier was a 1998 decision by the Supreme Court of Canada, which ruled that knowingly exposing a sexual partner to HIV constitutes a prosecutable crime (aggravated assault) under Canadian law. Background The case involved Henry Cuerrier, a man from British Columbia who tested positive for HIV in 1992. He subsequently had sexual relationships with two women, in which he neither disclosed his HIV status nor used condoms to protect his partners. Both women later learned of Cuerrier's HIV status, and Cuerrier was subsequently charged with aggravated assault even though both women subsequently tested HIV-negative. Under Canadian law, a charge of aggravated assault requires proof that the defendant's actions endangered the life of the complainant, and that the force must have been intentionally applied. Cuerrier, whose case was based on the fact that both women had consented to have unprotected sex with him, was acquitted in the initial court hearing. On appeal to the British Columbia Court of Appeal, the first court's ruling was upheld. Reasons of the court The Supreme Court ruled that Cuerrier's failure to disclose his HIV status constituted fraud. The women's consent to unprotected sexual activity, therefore, was not validly given as it was obtained through fraudulent means. The court did, however, rule that an HIV-positive person who practices safer sex does not necessarily have a legal responsibility to disclose his or her status. The judges were unanimous in ruling that failure to disclose HIV status constituted fraud, although they differed on how to implement the ruling in law. The majority decision, authored by Justice Peter Cory, set out three criteria which should be proven in a prosecution on these grounds: the accused committed an act that a reasonable person would see as dishonest, there was a harm, or a risk of harm, to the complainant as a result of that dishonesty, and the complainant would not have consented but for the dishonesty by the accused. In a minority opinion, Justice Beverley McLachlin favoured the specific addition of a clause regarding "deceit about sexually transmitted disease that induces consent" in the legal definition of fraud. In another minority opinion, Justice Claire L'Heureux-Dubé argued that the first, and third criteria set out by Cory should suffice for a conviction; she did not favour a burden of proof whether there was an actual risk of harm. Implications Groups, including the Canadian HIV/AIDS Legal Network, intervened in the case. The group raised a number of potential implications of the decision, including: the prospect that criminalizing a failure to disclose one's HIV status will deter sexually active persons from getting tested for HIV in the first place, the potential of a negative impact on doctor-patient relationships if the courts open the door to a doctor being subpoenaed to testify as to the defendant's HIV status, lulling sexually active persons into a "false sense of security" that they need not practice safer sex since criminal law, rather than their own sexual behaviour, protects them from HIV risk. The court also