From these cases the status of the current law in this area can be summed up as: a s.20 offence may be committed where someone who knows they are carrying HIV or another sexually transmitted disease is reckless as to its transmission onto another sexual partner where the partner is not fully informed of the infection and thus does not consent to it. An offence under s.18, grievous bodily harm with intent, may be committed if the defendant intentionally transmits his disease without warning the victim beforehand.
With the dry law as it stands outlined, the theoretical arguments surrounding it may be detailed and analysed. Regarding the newer stance taken on ‘inflict’ (i.e. simply to ‘cause’ with no necessary force), there is not a great deal of controversy. Few could argue that in cases like R v Dica the defendant has, for all purposes, inflicted the harm onto his sexual partner. Far more contentious is whether or not the victim can be said to have consented to it, at least enough to constitute a defence for the defendant. This argument relates to the first assertion made in the title statement: that ‘one can easily agree that persons who know they are HIV positive should be punished for having unprotected intercourse with unsuspecting partners’. Clearly the majority of the judiciary (at least, those who have had a chance to give judgment on this matter) support this view – per Judge LJ in R v Dica: “unless you are prepared to take whatever risk of sexually transmitted infection there may be, it is unlikely that you would consent to a risk of major consequent illness if you were ignorant of it”. A major factor in the courts’ decision in R v Konzani was the protection of personal autonomy which is a consistently relevant principle in any criminal law involving sexual intercourse. However, there is disagreement with the judges in these cases. Andrew Ashworth proposes that by choosing to have unprotected sex with the defendant without inquiring as to his sexual health, the victim is exercising autonomy by taking the risk of contracting a disease. He implies that potential victims should be given less protection, effectively requiring the defendant to be expressly and deliberately deceitful before an offence may be committed. Ashworth goes on to accuse the courts of going to ‘paternalistic’ lengths by imposing a duty on defendants to disclose his condition to the victim. In my opinion, while Ashworth’s point of view provides an interesting counter-argument to what one would intuitively agree with, a person should not be excused for transmitting a serious illness no another, even if the act by which it was transmitted was consented to. Consider an analogous example: if someone offers to stamp your hand for whatever reason and you consent to it, but it turns out that the stamp imprint is razor sharp, or the supposed ‘ink’ is highly acidic, and as a result your hand is badly damaged, it would be a travesty if the perpetrator was allowed to go unpunished. For the simple reason that one would not consent to the act if they knew of the consequences, I believe that the law is correct to punish those who transmit sexual diseases through consensual intercourse to unknowing partners.
Regarding the second statement in the title, modern medical evidence would probably make it easy to show that the defendant was or still is suffering from the disease (as opposed to another sexual partner which the victim may have had). Recklessness as to its transmission would depend on the facts of each individual case but for the most part it is fairly clear: if the defendant had sex with the victim with the knowledge that he had the infectious disease then that is sufficient for the purposes of recklessness. It would not need to be in his mind at the time (which could be the case due to the dominant nature of sexual excitement and enthusiasm) as long as he was aware that he carried the disease. Matters can get more complicated, however, when the defendant does not know whether or not he carries a sexually transmissible disease or where the victim has had more than one sexual partner who carries the infection. The latter situation is, thankfully, quite rare and will not be considered further in this essay.
As the title statement correctly ventures, ‘it will be harder to prove recklessness where the carriers do not know that they are infected’. Of great importance here are the individual facts of the case, as it could come down to a matter of degree. A defendant who was a medical student exhibiting all the symptoms of a sexual disease, and suspected an infection, but did not go to a doctor to get it confirmed could be said to have been very reckless in having unprotected sex with a partner who did not know about the symptoms or the student’s suspicion. However, if someone who knew very little about medicine had a near-symptomless sexual disease and over whom the thought of being infected had only crossed his mind once or twice, then had sex and transmitted a disease without telling his partner of his very temporary concern, then it would be much more difficult to maintain that he had been reckless. What if this same person was normally a hypochondriac and assumed that he was being paranoid about the diminutive symptoms he did notice on occasion? The medical student and the hypochondriac are two extremes, and there will be many hard cases inbetween when a jury will have to make a decision based on the facts. There are many other considerations to be taken into account if this is to be criminalised. Policy reasons - do we want to force people to disclose personal information about themselves to sexual partners? One could argue that a sexual partner denotes an intimate relationship and such information should be disclosed. On the other hand it could be argued that it is one’s right to keep personal information to oneself. Many will feel deeply sensitive about any possible disease and not wish to share such concerns. It could be feasible to make people visit their doctor before proceeding with sexual intercourse. Along the same lines is the moral argument of whether or not people ought to inform others and whether they ought to visit a doctor. However, what if the test results were incorrect? Could a doctor be held liable?
This discussion very much ties in with the final aspect of the title statement: should there be new legislation to consolidate and clarify the law on the transmission of sexual diseases? As previously mentioned I agree on the point that it should be a punishable offence where the perpetrator was aware of his or her condition and failed to inform the victim, and to legislate based on the cases of R v Dica and R v Konzani would be no bad thing. The difficulty arises where the defendant was unsure. In order for new legislation to be clear and easily enforced, it would have to take a definite stance on the matter. Of course, this definite stance could just allow a jury to decide but that would leave the matter totally uncertain until new case law had been established.
In my opinion it seems perfectly acceptable to require those in sufficient doubt to either visit a doctor or run the risk of being reckless and thus guilty under s.20 if they infect a sexual partner. If the test results were wrong then it would simply have to be held as an unfortunate misadventure because we clearly cannot have doctors under fear of liability for incorrect test results, and the defendant can in no way be said to have been reckless because he thought he was clean. On a final note – my use of the word ‘sufficient’ doubt is unfortunately very ambiguous, but sometimes one must accept that certain points of law need to be dealt with on a case-by-case basis.
Word Count: 1,717 (without footnotes) 1,739 (with)
Bibliography
Judgments from:
R v Clarence (1888) 22 QBD 23
R v Dica 3 All ER 593, [2004]
R v Konzani (2005) EWCA Crim 706
Blackstone’s Statutes on Criminal Law by P.R. Glazebrook 16th Edition OUP
Principles of Criminal Law by Andrew Ashworth 5th Edition OUP
Textbook on Criminal Law by Michael Allen 7th Edition OUP
R v Dica 3 All ER 593, [2004] Per Judge LJ paragraph 59
A. Ashworth ‘Principles of Criminal Law’ 5th Ed. OUP
