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Abstract: 

Under U.S. law, knowingly transmitting HIV to a sexual partner is treated under murder/manslaughter statutes, in some circumstances likening the disease to a weapon. Canada has taken another approach. The Supreme Court of Canada, in R v. Cuerrier,1998 Can. Sup. Ct. LEXIS 43 (Supreme Court of Canada, Mar. 27, 1998; Sept. 3, 1998), that court’s first case dealing with the criminal prosecution of an HIV-positive person for engaging in sexual activity without disclosing his status, ruled that when sexual activity poses a “significant risk of serious bodily harm,” the carrier has a duty to disclose his or her status to the partner, and failure to adhere to this duty constitutes a “fraud” which renders a sexual partner’s consent to the activity legally invalid, thereby making the otherwise consensual sex an “assault” under Canadian criminal law.

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