Should reckless transmission of HIV be decriminalized?

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. 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)17 may not be convicted. Also, in relation to the guideline that 'B does not consent to the penetration'18, 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 B19 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. 20 In the case of R v Jheeta,21 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)22 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.