Abstract
In the past 20 years, Canada has seen an increasing tendency to use the criminal law as a means of enforcing norms of safe sex and disclosure among the HIV-positive population – particularly the law of sexual assault. Although the structure of individual rights that underlies the law of sexual assault is conceptually distinct from norms produced through governmental power, this article shows that it is often difficult to draw clear distinctions between the two. An analysis that focuses strictly on individual rights is unsatisfactory because it fails to account for the social nature of our expectations of responsibility and trust. At the same time, when the individual right derives its content by absorbing a norm produced through governmental power, it fails to provide a principled discourse for future decision – making.
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