The defendant appealed conviction for inflicting grievous bodily harm on three women, by having unprotected sexual intercourse knowing that he was HIV positive, but without telling the women. Each contracted HIV. The allegation was that he had behaved recklessly on the basis that knowing that he was suffering from the HIV virus, and its consequences, and knowing the risks of its transmission to a sexual partner, he concealed his condition from the complainants, leaving them ignorant of it.
Held: ‘The recognition in R v Dica of informed consent as a defence was based on but limited by potentially conflicting public policy considerations. In the public interest, so far as possible, the spread of catastrophic illness must be avoided or prevented. On the other hand, the public interest also requires that the principle of personal autonomy in the context of adult non-violent sexual relationships should be maintained. If an individual who knows that he is suffering from the HIV virus conceals this stark fact from his sexual partner, the principle of her personal autonomy is not enhanced if he is exculpated when he recklessly transmits the HIV virus to her through consensual sexual intercourse. On any view, the concealment of this fact from her almost inevitably means that she is deceived. Her consent is not properly informed, and she cannot give an informed consent to something of which she is ignorant. ‘ and ‘The defendant is not to be convicted of this offence unless it is proved that he was reckless. If so, the necessary mens rea will be established. Recklessness is a question of fact, to be proved by the prosecution. Equally the defendant is not to be convicted if there was, or may have been an informed consent by his sexual partner to the risk that he would transfer the HIV virus to her. ‘ Appeal dismissed.
Judges:
Lord Justice Judge Deputy Chief Justice Of England And Wales, Mr Justice Grigson And His Honour Judge Radford
Citations:
[2005] EWCA Crim 706
Links:
Statutes:
Offences Against the Person Act 1861 20
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Brown (Anthony); Regina v Lucas; etc HL 11-Mar-1993
The appellants had been convicted of assault, after having engaged in consensual acts of sado-masochism in which they inflicted varying degreees of physical self harm. They had pleaded guilty after a ruling that the prosecution had not needed to . .
Cited – Regina v K HL 25-Jul-2001
In a prosecution for an offence of indecent assault on a girl under 16 under the section, it was necessary for the prosecution to prove the absence of a positive belief in the defendant’s mind that the victim was 16 or over. The legislation history . .
Cited – Regina v Jones (Terence) CACD 1986
The trial judge declined to direct the jury that the defendants were entitled to be acquitted if the jury decided that they were indulging in ‘rough’ and undisciplined sport or play, not intending to cause harm, and genuinely believing that the . .
Cited – Regina v Aitken CACD 1993
The court considered the criminality of high-spirited, ‘horseplay’ which had resulted in serious injury. . .
Cited – Regina v Barnes CACD 21-Dec-2004
The defendant appealed against a conviction for inflicting grievous bodily harm, after causing a serious leg injury in a football match when tackling another player.
Held: There was surprisingly little authority on when it was appropriate to . .
Cited – Regina v Savage; Director of Public Prosecutions v Parmenter HL 7-Nov-1991
The first defendant had been convicted of wounding. She had intended to throw beer over her victim, but her glass slipped from her hand, and cut the victim. The second defendant threw his three year old child in the air and caught him, not realising . .
Cited – Regina v Cunningham CCA 1957
Specific Intention as to Damage Caused
(Court of Criminal Appeal) The defendant wrenched a gas meter from the wall to steal it. Gas escaped. He was charged with unlawfully and maliciously causing a noxious thing, namely coal gas, to be taken by the victim.
Held: Byrne J said: ‘We . .
Cited – Regina v Dica CACD 5-May-2004
Reckless HIV transmission – Grievous Bodily Harm
The defendant appealed against his conviction for inflicting grievous bodily harm. He had HIV/Aids, and was found to have transmitted the disease by intercourse when the victims were not informed of his condition. It was not suggested that any rape . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 29 June 2022; Ref: scu.223634