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 consent to the risk of infection.
Also, despite Judge LJ’s claims in Konzani that “the principle of her [the victims] personal autonomy is not enhanced if he [the defendant] is exculpated when he recklessly transmits the HIV virus to her through consensual sexual intercourse”. Antje Pedain argues that the current law regarding consent effectively gives too much responsibility for making autonomous choices towards the victim. As she reasons, Konzani effectively did away with the need to ask whether ‘anything the defendant said, did, failed to say or failed to do amounted to ‘‘concealment’’.
In Dica, it can also be said that the topic of knowledge, specifically the victim’s knowledge on the HIV status of Mohammed Dica and Dica’s knowledge regarding his condition was not sufficiently considered by the Court of Appeal. Current statute law on the subject has also been criticized. The OAPA 1861 has been described as severely outdated, archaic and inconsistent by many commentators. The maximum sentence regarding the s. 20 offence of grievous bodily harm is 5 years which is equal to that of s. 47 assault occasioning actual bodily harm, despite GBH requiring a more serious actus reus and mens rea. Critics, who propose the criminalization of the reckless transmission of HI, point towards the s.74 of the Sexual Offences Act 2003 as a fitting punishment. There is also the lack of the correspondence principle regarding s.20 of the OAPA, meaning that there isn’t a need to intend or foresee GBH to be convicted. This has led to many other commentators to declare it unfair.
Taking into account these criticisms, amendments and improvements should be made regarding the current law. It should not, however be fully decriminalized. Proponents for its decriminalization, argue as a matter of policy that its criminalization has and will lead to large numbers of people who refuse to be tested for fear of prosecution.While legislation may have to be amended regarding the extent of medical confidentiality, so healthcare professionals can trace those who may have had contact with the virus, which may be an intrusion on privacy. Nonetheless the matter of reckless HIV transmission is first and foremost a matter of healthcare, the full decriminalization of reckless HIV transmission would inevitably result in higher NHS costs as well as higher deaths. Largely due to the fact that its criminalization effectively acts as a deterrent for would be criminals. Not to mention that as an issue of public policy, it may result in a more laissez faire attitude towards the serious topic of sex and HIV.
For solutions and amendments towards the current law it is advisable to consider laws in other countries regarding reckless HIV transmission. A recent case in Germany, involving a German pop star who was deemed guilty of recklessly transmitting HIV, has led to her being charged of GBH resulting in a suspended sentence of 2 years as well as being remanded in custody for a period of 10 days due to fear that she may repeat the crime. If this detention were to be applied to the UK it may discourage further reckless behaviour (it may, however, not comply with some aspects of current EU Law). There is also the possibility of moving the charge from Grievous Bodily Harm to Rape due to the outdated nature of the OAPA 1861, this will further be discussed in part b) of this memorandum. In terms of knowledge and consent it is advisable to require judges to seek out the victim’s prior knowledge regarding her consent to sexual intercourse. This was not taken into account in Dica and may go a long way in providing the judge a better understanding of the case. A hypothetical situation would be if a victim found a hospital note which explicitly states her partner as having the HIV virus, despite her/his partner’s deception. Using current law derived from Dica it may or may not count as consent and if it did not count as consent (as the onus is on the Defendant to disclose the information) then it would be equivalent to saying that the victim bears no responsibility for her actions and health. This leads onto the subject of autonomy and the responsibility for decisions. If one were to apply the amendment regarding the need to consider the knowledge that the victim had as well as the defendant had, it would result in a much fairer distribution of responsibility regarding autonomous choices.
Part b)
The apparent problems associated with the OAPA 1861, has led to a number of commentators calling for a charge of rape should an individual fail to disclose his/her HIV status, as they feel that an individuals. In order to address this issue, it is first necessary to understand the conditions in which a person may be prosecuted of rape in current English Law. According to the s.1 of the Sexual Offences Act 2003, Rape occurs when:
- A person intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
- B does not consent to the penetration.
- A does not reasonably believe that B consents.
It is also important to note that if a charge of rape were to become possible in the scenario. The crime of failing to disclose HIV status would effectively become a Sexual offence as opposed to a Non-Sexual offence.
One of the main problems of this proposition is the fact that the charge of rape only applies to men. Due to the fact that the defendant must penetrate the vagina, anus, or mouth of the victim with his penis. Thus it can be said that a charge of Rape regarding the reckless transmission of HIV, may not only be one-sided but damaging for the idea of public policy as women who recklessly transmit HIV (such as in the case of R v Sarah Jane Porter) may not be convicted. Also, in relation to the guideline that ‘B does not consent to the penetration’, in Dica and Konzani it was held that consent to sexual intercourse and thus penetration was present, what was not present was consent regarding the reckless transmission of HIV. This means a charge of rape cannot currently occur and for good reason. It effectively is a very harsh sentence in relation to Grievous Bodily Harm for a defendant who may not fully understand his condition.
The ratios of other cases can also be applied to the cases of Dica and Konzani in order to deduce whether an individual’s failure to disclose HIV status should be capable of vitiating an apparent consent to sexual intercourse for the purposes of a charge of rape. For example, the judgment and ruling from the case of R v B is synonymous to the cases of Dica and Konzani, due to their near identical facts. In R v B, Lord Justice Latham ruled that despite the transmission of the disease was not consented to (it was not informed consent); the act of sexual intercourse was (as per Dica and Konzani). Therefore Latham LJ concluded that no charge of rape would incur. In the case of R v Jheeta, however, deception did amount to a charge of rape in relation to s.76 (2) (s) of the Sexual Offences Act 2003. This case however, despite on the surface appearing similar to both Konzani and Dica, can be distinguished from both on the basis of fact. The defendant deceived the complainant in relation to the nature or purpose of the intercourse. While in Dica and Konzani, it was not their purpose to deliberately infect the victims. Thus a clear distinction can be made from these cases, regarding what effectively constitutes as rape and what does not.
Nevertheless, there are a number of positives regarding the notion that failing to disclose HIV status should vitiate an apparent consent to sexual intercourse for the purposes of a charge of rape. An example being is that it make act as a deterrent to future would be criminals. Also the much harsher charge of rape may benefit public policy, as the person will be in custody for a much longer period (more than likely over the 5 years that is the maximum for GBH) as well as being put on the sex offenders list allowing the authorities to keep tabs on his sexual activity.
Though, In conclusion it can be said that an individual’s failure to disclose HIV status does not and should not vitiate an apparent consent to sexual intercourse. Firstly due to the charge of rape’s one-sided nature regarding men. Secondly the defendant’s as well as the victims knowledge regarding his condition needs to also be taken into account, if he was wrongly informed regarding the facts of HIV a charge of rape is overly harsh. And if the victim knew of his/her condition despite the defendant not telling him/her explicitly and still decided to have sexual intercourse the victim’s consent regarding sexual intercourse must be taken into account. Lastly Jheeta effectively distinguishes the law derived from Konzani and Dica as unavailable for the charge of rape regarding s.76.
Bibliography
Statutes
- Offences Against the Person Act 1861
- Sexual Offences Act 2003
Books
-
Herring, J., Criminal Law Text, Cases and Materials. 4th ed. (Oxford U.P., New York, 2010).
-
Weait, M., Intimacy and Responsibility the criminalization of HIV transmission. (Routledge-Cavendish, Oxford, 2007).
Cases
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R v B [2006]
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R v Clarence (1888) 22 QBD 23
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R v Dica [2004] QB 1257 (CA)
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R v Jheeta [2007] EWCA Crim 1699.
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R v Konzani [2005] EWCA Crim 70
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R v Sarah Jane Porter [2006]
Journals
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Pedain, A. ‘HIV and responsible Sexual behaviour’ (2005) 64(3) Cambridge Law Journal, 540-543.
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Ramage, S. ‘The criminal offence of causing infection of HIV virus’. (2008) Criminal Lawyer, 1-8.
-
Weait, M. ‘Criminal Law and the Sexual Transmission of HIV’ (2005c) 68(1) Modern Law Review, 121-134.
Websites
- Antigua Opinion articles, ‘Should HIV Transmission be criminalized’,
<>.
- BBC World news, ‘Suspended sentence for German HIV singer Nadja Benaissa’,
< >.
R v Dica [2004] QB 1257 (CA)
R v Konzani [2005] EWCA Crim 70
R v Clarence (1888) 22 QBD 23
Herring, J., Criminal Law Text, Cases and Materials. 4th ed. (Oxford U.P., New York, 2010) p.357.
R v Dica, Op cit., para 59.
Weait, M. ‘Criminal Law and the Sexual Transmission of HIV’ (2005c) 68(1) Modern Law Review, 121-134, p. 124.
R v Dica, Op cit., para 52.
Weait, M., Intimacy and Responsibility the criminalization of HIV transmission. (Routledge-Cavendish, Oxford, 2007) p.124.
Herring, J., Op cit., p. 363.
Weait, M., ‘Criminal Law and the Sexual Transmission of HIV’. Op cit., p. 128.
Pedain, A. ‘HIV and responsible Sexual behaviour’ (2005) 64(3) Cambridge Law Journal, 540-543, p. 542.
R v Konzani, Op cit., para 42.
Herring, J., Op cit., p. 387.
Antigua Opinion articles, ‘Should HIV Transmission be criminalized’,
<> [accessed January 12th 2011].
BBC World news, ‘Suspended sentence for German HIV singer Nadja Benaissa’,
< > [accessed January 12th 2011]
Weait, M., ‘Criminal Law and the Sexual Transmission of HIV’. Op cit., p. 128.
R v Sarah Jane Porter [2006]
S.74 Sexual Offences Act 2003
Ramage, S. ‘The criminal offence of causing infection of HIV virus’. (2008) Criminal Lawyer, 1-8, p. 6.
R v Jheeta [2007] EWCA Crim 1699