Should reckless transmission of HIV be decriminalized? And should an individuals failure to disclose HIV status be capable of vitiating apparent consent to sexual intercourse for the purposes of a charge of rape?

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To: The Parliamentary Committee

Date: January 14th, 2010

RE: Should reckless transmission of HIV be decriminalized? And should an individual’s failure to disclose HIV status be capable of vitiating apparent consent to sexual intercourse for the purposes of a charge of rape?

        The intent of this memorandum is to explain in part a) why the reckless transmission of HIV should not be decriminalized, but instead simply amended in some areas and in part b) why an individual’s failure to disclose HIV status cannot and should not be capable of vitiating an apparent consent to sexual intercourse for the purposes of a charge of rape.  

Part a)

Current law in England and Wales on the subject of reckless transmission of HIV derives from the landmark cases of R v Dica and R v Konzani.   In both Konzani and Dica the defendants were found guilty of Grievous bodily harm through reckless transmission of a sufficiently serious sexually transmitted disease (HIV), under S.20 of the Offences against the Person Act 1861. The combined effect of both cases now means that a person can be convicted of causing a person to be HIV positive through sexual relations, under S.20 of the OAPA 1861if:

  1. He/she is aware that there is a risk that by having sexual relations he or she might cause the other person to suffer some harm.
  2. The victim has not given consent to run the risk of becoming HIV positive.

These decisions were directly contrary to the decision in Clarence, whereby it was decided that a harm could not be ‘inflicted’ in the course of consensual sexual intercourse. However, even Lord Justice Judge in his judgment in Dica conceded that “in every case where these issues arise, the question whether the victim did or did not consent to the risk of a sexually transmitted disease is one of fact, and case specific”, illustrating the apparent grey areas regarding this topic and thus the need for judge discretion.

        Hence, In terms of legal issues regarding the decriminalization of reckless HIV transmission, the aspect of consent is seen to be one of the most contentious. In Dica, Judge LJ explains that the defence of consent is available as a matter of principle where a person has transmitted the virus recklessly, and where it is established that his partner had consented to that risk. As, according to the academic Dr. Matthew Weait, the criminalizing of taking such risks associated with consensual sexual intercourse would be “impracticable in enforcement terms and according to Judge LJ “interference of this kind with personal autonomy, and its level and extent, may only be made by Parliament”   as a matter of principle. It was deemed in both Dica and Konzani however, that the victims, despite consenting to the act of intercourse did not give an informed consent to the transmission of HIV as they were both ignorant of the fact.

This has raised a number of problematic issues regarding consent in light of the current law on HIV transmission. Firstly due to its ambiguity. In Dica, the degree of risk related to the defendant’s conduct was not implicitly addressed and from the case it can be assumed that the degree of risk is irrelevant. This may lead to future issues regarding a different case, for example what if the victim knew the defendant to be promiscuous and thus was aware that there was a higher risk of the defendant having the HIV virus. Could this effectively warrant as consent? Despite some ambiguity present, it does not mean, however, that there should be a de-criminalization of reckless HIV transmission, only the need for further judge discretion when new cases arise. This may also have been a blessing in disguise according to Dr. Matthew Weait, as a matter of public policy, a person may be putting themselves in as much risk of transmission if they base their decisions on the number of low risk activities the their partner has taken part in compared to people who knowingly consent to sex with a person who has engaged in a large number of high risk activities. As HIV may be transmitted during only one incident of low risk activity and not transmitted during a series of high risk activities.

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There are also a number of critics who state that the current law has cast too wide a net, in terms of criminal liability. They point towards the defendant’s lack of defence in Konzani, regarding his ‘honest belief’ that the women consented to HIV transmission (the court ruled that the honest belief must be concomitant with the consent which provides a defence). Nevertheless, the reasoning of the Court of Appeal on this aspect is correct as the defendant’s ‘belief’ was nothing more than an assertion that he expected the law to treat the victim’s agreement to unprotected intercourse as ...

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