Emily MacKinnon & Constance Crompton, “The Gender of Lying: Feminist Perspectives on the Non-Disclosure of HIV Status”

Working Abstract

Arguing from a feminist perspective, this article contends that non-disclosure of HIV status to one’s sexual partner should not vitiate consent to sexual activity. In R v Cuerrier, [1998] 2 SCR 371, the Supreme Court of Canada (SCC) held that non-disclosure of HIV seropositivity to a sexual partner constituted fraud that vitiated consent to the sexual contact when there was a significant risk of bodily harm. The application of Cuerrier in the past 13 years has highlighted the uncertainty created by this test, especially in the face of our increasing medical understanding of HIV transmission. Signalling a pervasive discomfort with Cuerrier, on 8 February 2012, the SCC was called on to reconsider Cuerrier in appeals from R v Mabior, 2010 MBCA 93, and R v DC, 2010 QCCA 2289.

Feminist perspectives were notably absent from the submissions of the parties and the many interveners before the SCC, and indeed, it is difficult to map out a single feminist position on the issue. On the one hand, the ground-breaking principle in R v Ewanchuk, [1999] 1 SCR 330, emphasizes the primacy of subjective consent. On the other hand, HIV discrimination and stigma disproportionately impacts disadvantaged groups including aboriginal and new immigrant women. Furthermore, women in relationships of unequal power, such as sex workers and battered spouses, may not be able to safely disclose their seropositivity.

In this article, we consider the gendered effect of lying, and how HIV status intersects with the power imbalance at the root of sexual assault. We discuss the tension between the need for women to protect both their medical information and their sexual integrity. Finally, we consider specific contexts in which non-disclosure arises, including bathhouses, marginalized ethnic communities, and prostitution, and the role of stigma in preventing disclosure.

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