Sexual intercourse for the purposes of a charge of rape

Current law in England and Wales on the subject of reckless transmission of HIV derives from the landmark cases of R v Dica1 and R v Konzani. 2 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: i) 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. ii) The victim has not given consent to run the risk of becoming HIV positive. These decisions were directly contrary to the decision in Clarence3, whereby it was decided that a harm could not be 'inflicted' in the course of consensual sexual intercourse.

4 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",5 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"6 and according to Judge LJ "interference of this kind with personal autonomy, and its level and extent, may only be made by Parliament" 7 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 ambiguity8. 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. 9 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. 10 As HIV may be transmitted during only one incident of low risk activity and not transmitted during a series of high risk activities. 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. 11

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"12. 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. 13 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 prosecution14. 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,15 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. 16 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.