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Criminal Transmission of Disease

Kirsty Moreton

Criminal Transmission of Disease tends to focus on STIs

Karl Laird argues we generally focus on these because of issues proving disease causation, or intentionality in spreading. So thats acts rea and mens rea (the physical act and the mental state)

Theres also a breach of trust between the participants. And there are cultural things about the shame in disease transmission.

Historical

R v Clarence (1889)

Clarence had sex with his wife, when he knew that he had gonorrhoea, but didnt tell her.

No suggestion that he wanted her to get gonnorhoea, or that she would have consented if she knew.

Clarence was charged with inflifcting Grevious Bodily Harm, and Actual Bodily Harm under Offences against the Person Act (OAPA) 1861 <- Which is still the current law when it comes to these offences!

He was convicted for both, but then won an appeal and was acquitted. This because at the time they assumed women automatically consented to sex with husbands. So she couldn't refuse consent and he couldn't have assaulted. This changed back in the 1990s

Law Commission Report 2003

This was a Government Consultation Paper that concluded the OAPA had enough scope to bring transmission of disease within GBH

CPS Guidance on Criminal Transmission Of Disease

So there is certain things that the prosecutions service will look for:

  • that there was an allegation that it occured in consensual activity (as non consensual will then come up as a sexual offence)

The criminality lies in the mens rea, which can be difficult to prove.

Statute Law - OAPA 1861

Section 20 + 18 are about Grievous Bodily Harm. This is the most serious physical offence second only to homicide, can get a life imprisonment.

It can be between same sex or opposite sex parties.

It needs different evidence than other causes of GBH

So:

Section 20 is 'Inflicting Bodily Injury':

Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without a weapon or instrument….’

Maliciously could mean intention or recklessly. Doesn't have to mean malice.

What is grievous bodily harm? A jury will decide that! No set definnition.

Carries max sentence of 5 years

Section 18 is GBH with Intent

So this is the same as section 20, but it adds the fact that you should intend to do grievous bodily harm to any person. So being reckless isn't enough.

Carries max sentence of life.

Transmission as GBH

So Intentional Transmission under Section 18:

You need medical and factual evidence the person meant to transmit, and managed to transmit to the victim. The fact someone consented to sexual activity, even if they knew so and so was infectious isn't enough to defend section 18.

You can also have a charge of ATTEMPTED commiting

Most charges are going to be under Reckless Transmission, Section 20

Here you need some foresight that someone would contract, but did it anyway. As well as recognising there was a risk, there was also the reasonableness of that risk.

You cannot attempt to commit an offence under section 20. There has to be transmission to be charged.

Questions in Reckless Transmission?

  • Is level of risk of transmission relevant?
  • Does consent act as a defence?
  • What are impacts of safeguards that defendent could have put in place to minimise risk of transmission.?

Case Law

R v Dica [2004] 2 CR APP R 28

  • Dica knew in Dec 1995 that he was HIV +ve and started medication
  • Dica had a relationship with L from 1997
  • He insisted they shouldn't use protection
  • She was diagnosed with HIV
  • Dica had a relationship with D from 2001

  • She also was diagnosed with HIV

  • Dica was arrested in 2002

  • He claimed he told L and D

  • He was charged with reckless transmission

  • Recklessness was proved as he knew he was infected and refused protection, so that's the mental state confirmed

  • Dica claimed both women knew and consented. The women agreed they had consented, but argued they would not have if they knew he was positive.

  • Then the question is, when we consent to sex have we also consented to the risk of infection?

  • The court argued no. As this was a long term relationship the women had the right to asume there wasnt this risk of infection.

This raises its own questions and worries, what if the women had engaged in casual sex with Dica, should they have had a higher personal responsibility.

Can we really consent to harm?

If so, what level of harm can we consent to?

The law holds that ABH (Actual Bodily Harm) and above, we cannot consent to. There are some exceptions to this, allowing people to consent to surgery, extreme sports, and other activities

R v Donovan [1934] 2 KB 498

D caned a girl for sexual gratification and was charged with assualt. He cleaimed that she had consented.

The court found this was an assualt countrary to public morality, and that you could not consent.

AG's Ref (No 6 of 1980) [1981]

2 boys agreed to fight. One was injured. D was acquitted becuase the other consented. This was overturned by Attorney General, saying that consent to violence is not a defence

R V Adaye (2004)

D was warned in S Africa that he should take an HIV test, because of his various STIs. He ignored these recommendations

Came to UK and had sex with V and gave HIV.

He claimed he didn't know if he had HIV.

However was charged and pled guilty to section 20 offence. It seems if you know you MAY have an illness and refuse to be tested, then liability can still be imposed. You have "willful blindness"

Lynch J judgment:

You pleaded guilty on the basis you were reckless and did not intend to inflict this harm.... I cannot imagine a greater degree of GBH than infecting a person with a virus of this nature.

(So is this influenced by it's timings thoughts of how serious HIV)

Konzani - R V Konzani (2005)

Was told he was HIV +ve in 2000

He didn't tell any of the three sexual relationships that he had following this, that he was HIV +ve

He started a relationshup in 2001 with a 15yr old virgin who had regular unprotected sex with him

He had a relationship in 2002 with regular sex with a 27yr old (sometimes protected, sometimes not)

He had a relationshup in 2003 with the third

All three women became HIV +ve

He admitted he acted recklessly and had infected them, and was charged with section 20.

Each woman denied they'd consented to risk of HIV. He argued that in consenting to sex you were also consenting to risk of infection/HIV.

However, there's a difference between running a risk, and consenting to run it. Some women argued that they did not consider the risk. Some argued that he denied having any infection when they explicitly asked.

Judge LJ: ‘In the public interest, so far as is 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.’

A defence may be that the defendent honestly believed that the patient knew, or that they honestly believed that someone had told them.

The court is holding that the consent needs to be informed.

Sarah Jane Porter (2006)

Knew she was HIV positive and had sex with multiple partners, one was infected. She pleaded guilty to s20 GBH and sentenced to 32 months

This was criticised in some quarters, the National Aids Trust described it as treating "everyone with HIV as a potential criminal" (Deborah Jack)

R V Peace Marangwanda [2009] EWCA Crim 60

Sentenced to s20 GBH

  • Man with gonorrhoea was diagnosed and got treatment
  • Children of his partner were later diagnosed, and made allegations of sexual abuse
  • Was prosecuted with s9 Sexual Offences Act 2003
  • His defence was that he didn't have gonorrhoea at time and it was severe thrush
  • In the mean time he pled to s20 GBH (he argued he touched his hands and didn't wash properly)
  • He was found guilty. Sentenced to 2 years for each count. He was disqualified with working with kids for life and deported

He appealed saying that his transmission was not possible, and that even if they were, he was not acting recklessly.

The court of appeal still held him reckless, but that his sentece was excessive and was reduced to 12 months on each count concurrently

A dangerous Development

Is what Matthew Weait thought about it.

This s20 plea was put under a casual touching as the act.

'This is, it is suggested, deeply problematic, as are other aspects of the case. First, the Court seems to be suggesting that there is a duty to take the necessary protection against the transmission of disease. With respect, there exists no such legal duty anywhere in English law. A person is not reckless because he fails to take precautions against transmission; he is reckless if it is established that he was aware of the risk of transmission. This might seem a fine distinction , but it is an important one.’

'Another problematic aspect of the decision is that appears to be a bad compromise. The plea was entered and accepted in part, it seems, to prevent E (the child complainant) to have to give evidence at a retrial. It is for this reason that what would otherwise have been a case involving alleged sexual offences was transmuted into one concerning offences against the person. This was arguably artificial, and (as the discussion above about the Court of Appeal’s comments about the nature of PM’s duty shows) has resulted in – it is suggested – flawed reasoning.'

'Finally, although it wasn’t addressed in the Court of Appeal’s judgment, there remains the question of knowledge and scientific evidence of transmission' (So does this mean that he was convicted of something that wasn't really possible)

Golding (2014)

Golding infects Cara Scott with genital herpes. He denies this initially, but then later admits to her that he'd caught it.

He was charged with s20 GBH and was convicted.

Judge Michael Fowler:

‘Because it was in a relationship, it was particularly mean and an offence which amounted to a betrayal – a betrayal in a relationship in which you professed love’ ‘The injury you caused her by this infection is at least or more serious than an injury leaving a scar because it carries continued recurrence, extreme discomfort and consequences for relationships she will have in the future’.

Golding appealed on 2 grounds:

  • Should herpes count as "serious bodily harm?"
  • Can it be proved he was the cause

This appeal was dismissed. They felt it was enough to count as really serious bodily harm

Analysis

Should we count herpes here?

Well is it just cos the suffering is from the perception that they have been transformed into a 'sexual leper' (Killian Dunphy 2014)

Antonio (2017)

In this one the patient with HIV lied to one saying he didnt have HIV

Was sentenced to s20

Daryll Rowe - Section 18

Here you need evidence of intention to transmit

27yr old man who intentionally infected five men and attempting to infect another five

He had a campaign to infect as many men as possible

He knew he had HIV, didn't take ARTs.

Had sex with many men, afterwards mocking them and telling them he had HIV

He was arrested on 10 counts, in 2016, the police put out a public health warning

In evidence he'd sent abusive and mocking messages to victims

He was convicted with a life sentence, with a minimum of 12 years with his appeal rejected.

Criminalisation

Pros

Should the transmission be the criminal act? Or should the lie/deception be the criminal act (like Matthew Weait argues)

Should the transmission be a criminal act, to allow a form of societal censure?

Should it be criminal to allow public health protection, to minimise the spread of infection?

Ormerod and Gunn argue that criminalising an activity in a way that society aims to change behaviour.

Autonomy - peoples autonomy is undermined if people are permitted to conceal their status from partners

Vulnerability - criminalisation protects the vulnerable in trusting relationships.

Cons

Sexual Negotions are complex. There is a lack of realism in the law to expect people to be paragons all the time. It can set a precedent for all people living with HIV.

Judge LJ in Dica recognises it is impractical to enforce this.

This could be seen as discriminating against those who are HIV+, or have AIDS, or have viral Hepatitis

Lastly should HIV even be enough to be a criminally significant harm?

Maternal Foeatal Issues

Could there be s20 legal liability for HIV transmission between mother and child?

This has happened in Austria, Canada, and USA

There's legal protection for civil liability for harm in utero, but there can be criminal liability if child born alive.

Main Arguments

[Key Arguments- Matthew Weait(2019)]

(1)  an offence of reckless transmission encourages people to choose not to be tested, so as not to have the awareness of risk that might constitute recklessness;

(2)  it discourages openness with (and by) medical professionals, because they may have to give evidence against their patients;

(3)  it encourages people to think that disclosure of HIV status is always a duty, and that if a potential partner has not mentioned his or her status then he or she is not infected;

(4)  because of the difficulty of proving transmission, the existence of the offence leads to very wide-ranging and intrusive investigations affecting a great many people, out of all proportion to the small number who will be found deserving of prosecution; and

(5)  the whole topic of HIV/AIDS is affected by an atmosphere of fear (often irrationally so), and there is still an undesirable stigma against people.