(2011) 57:4 The Criminal Law Quarterly 464-485.
The issue of criminalizing the failure to disclosure HIV has been hotly contested in Canada for the last fifteen years. I wrote this article to address what I have always viewed as an inadequate conceptual framework for analyzing it. The Supreme Court of Canada propelled us down this path when, in 1998, it adapted the test for commercial fraud to fraud with respect to sexual encounters. In this article, I explain why this fateful choice was misguided and, together with my co-author Dr. Michael Plaxton, set out an alternative approach rooted in what it is that makes sexual assault wrongful.