Criminal responsibility for the non-disclosure of HIV-positive status before sexual activity

In 2012 the New Zealand Court of Appeal, in a radical change in direction, held that the non-disclosure of HIV-positive status prior to unprotected sexual relations could amount to fraud vitiating consent, so that the offence of sexual violation is committed. The court applied R v Cuerrier [1998] 2 SCR 371, a controversial Canadian decision, which held that for the offence to be established the Crown has to establish that the dishonesty had the effect of exposing the person consenting to "a significant risk of serious bodily harm". In 2012 in R v Mabior [2012] SCC 47 the Supreme Court of Canada reviewed the correctness of its own decision in Cuerrier. The court considered first whether, in holding that non-disclosure of HIV can make sexual intercourse non-consensual and lead to conviction for the serious offence of aggravated sexual assault, Cuerrier overextends the criminal law. Secondly, the court considered issues left open in Cuerrier: whether condom use and/or a low viral load in the partner with HIV prevents failure to disclose HIV status before intercourse from posing "a significant risk of serious harm". This column analyses these two recent high-level decisions.