The over-criminalization of persons with HIV

This article argues that the Court has over criminalized HIV nondisclosure through treating all cases where there is a realistic possibility of transmission as aggravated sexual assault regardless of whether transmission of the virus takes place. It argues that there is no other context in which a remote possibility of a harm, where that harm is not realized, constitutes our most serious form of sexual assault and suggests that this over-criminalization of HIV is a result of a pattern of exceptionalism in which persons with HIV are singled out for disadvantageous treatment because of the stigma that has built up around the condition. Finally, the article notes the lengths the Court went to acquit DC in R v DC and suggests this reflects the Court’s own discomfort with the Mabior test.