Friday, October 5, 2012

Sexual consent vitiated only where misrepresentation leads to a significant risk of serious bodily

R. v. Mabior, 2012 SCC 47 has upheld the test for when consent to sexual activity is vitiated. The Court holds:

This Court, in Cuerrier, established that failure to disclose that one has HIV may constitute fraud vitiating consent to sexual relations under s. 265(3)(c) Cr. C. Because HIV poses a risk of serious bodily harm, the operative offence is one of aggravated sexual assault (s. 273 Cr. C.). To obtain a conviction under ss. 265(3)(c) and 273, the Crown must show, beyond a reasonable doubt, that the complainant's consent to sexual intercourse was vitiated by the accused's fraud as to his HIV status. The test boils down to two elements: (1) a dishonest act (either falsehoods or failure to disclose HIV status); and (2) deprivation(denying the complainant knowledge which would have caused him or her to refuse sexual relations that exposed him or her to a significant risk of serious bodily harm). Failure to disclose may amount to fraud where the complainant would not have consented had he or she known the accused was HIV‑positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm.


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Perhaps it is wiser to assume that any potential partner has HIV and take appropriate precautions.

Relying on the law to protect you in this case is dangerous.

This isn't like riding a bus where passengers can assume the driver isn't stoned or drunk.

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