The Cuerrier Decision

Jime Lemoire

2003, 11:30 minutes, colour, English


This video explores and questions the 1998 judgement in the case of R v Cuerrier: a precedent-setting case where the Supreme Court of Canada ruled for the first time that an HIV positive person may be guilty of "assault" under Canadian criminal law for failing to disclose their HIV positive status to a partner prior to engaging in otherwise consensual sex. This ruling represents the first time any country's highest court has addressed the issue of criminal sanctions for conduct that risks transmitting HIV. The intention of this video is to raise public awareness because, despite the severity of this decision and its implications on policing human bodies within Canada, the public remains largely unaware.
Several themes are contentiously weaved throughout the non-linear narrative of four people that are struggling with the meanings, and impact, of the decision on their lives and sexual behaviour.
In particular, this video challenges and addresses one of the central tenets underlying this decision: assumptions being made around the "duty to protect" sexual partners from imminent harm. The "duty to protect" principle reinforces an individuals faith and ability to trust that a partner is aware of their HIV status, a strategy that is not always correct and at best counter-productive to HIV prevention by placing the onus of responsibility outside an individual's choice regarding precautions during high risk activities.
Another central theme explored is how this decision discourages and negatively impacts voluntary HIV testing and counselling.
Emphasis is also placed on the detrimental effects resulting from helping professionals who engage in involuntary partner notification of HIV status, namely the risk of domestic violence. Although these professionals are often acting upon the "duty to protect third parties from imminent harm" precedent reinforced in this ruling, and previously accepted under American Civil Law, the efficacy of this approach is questioned.
While several issues are raised in this work, the perception of the body and rights of an HIV positive person embedded in the Cuerrier decision is problematized throughout all images and narratives.
Through the lives in the narrative, the confusion, stress and complexities of the above issues are embraced. Awareness and discussion drive this work, not answers.

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