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Criminalising the Transmission of STDs

About The Author

Jade Rigby (Writer)

Jade is a third year Law student at Newcastle University. She is currently completely an Erasmus year abroad at Universitat Pompeu Fabra in Barcelona, Spain, and will return to Newcastle in 2015. Jade is predominantly interested in commercial law, but also writes on criminal and private law topics.

Using the criminal law to punish those who spread sexually transmitted diseases has long been a controversial issue.  As the global HIV epidemic enters its fourth decade, this debate has rumbled on. There are a variety of problematic social and legal consequences which arise from criminalising the transmission of sexually transmitted diseases, but nevertheless the past decade has seen the enactment of such criminal legislation in a variety of jurisdictions. In light of these developments, this article will investigate the advantages and disadvantages of the current law in England and Wales in relation the transmission of HIV.

The Current Law

The law in England and Wales in relation to sexually transmitted diseases used to be governed by R v Clarence. In this case, the defendant had transmitted gonorrhoea to his wife. The majority held that consenting to sex equates to consenting to what may come from sex, and so found the defendant not guilty. However, the dissenting judgment in the case demonstrates tensions with this verdict; Hawkins J held that the “irrevocable privilege to have sexual intercourse with (one’s wife)… does not justify a husband in endangering his wife's health and causing her grievous bodily harm, by exercising his marital privilege when he is suffering from venereal disorder.” The dissent demonstrated concerns for an ‘informed consent’ doctrine in criminal law.

However, more recent developments in the Court of Appeal have overruled the majority decision in Clarence and given effect to Hawkins J’s dissent. In Dica and Konzani, the Court has held that defendants who know that they suffer from HIV and recklessly transmit HIV through sexual intercourse without disclosing their infected status to their sexual partner would be criminally liable under section 20 of the Offences Against the Person Act 1861. Judge LJ summarily stated in Dica, at paragraph 39:

[I]f the appellant concealed the truth about his condition from them [the victims], and therefore kept them in ignorance of it, there was no reason for them to think that they were running any risk of infection, and they were not consenting to it. On this basis, there would be no consent sufficient in law to provide the appellant with a defence to the charge under s.20.

Even so, the law has not been consistent in this area. In Adaye, a defendant who ignored a doctor’s recommendation for HIV testing was found guilty under section 20. Significantly, Adaye claimed that he did not conclusively know that he was HIV positive.

The Defendant Must Have Knowledge of His HIV Status

One of the most difficult aspects of the offence is to distinguish whether or not the defendant has knowledge of his status. As outlined above, Adaye directly conflicts with the principle set out in Dica and Konzani. Adaye did not know that he was HIV positive, although he was aware that a doctor thought he should seek medical testing. The concept of knowledge here is problematic; at what stage does a person ‘know’ of their HIV status? It would appear that the criminal law imposes liability as a regulatory mechanism; if the defendant knows that he may have HIV and fails to seek testing then the offence can be imposed. On the one hand, one could suggest that this approach attempts to encourage a health-conscious society. There would be a strong incentive to seek medical testing in order to confirm whether or not the defendant actually has a disease.

Samantha Ryan, (‘Reckless Transmission of HIV: Knowledge and Culpability’, (2006) Criminal Law Review 981-992), considers whether the expansion of the law in Adaye is justifiable. On the one hand, restricting the offence to actual knowledge may let blameworthy individuals escape criminal liability. Adaye, therefore, is a good demonstration of such an argument; the defendant had ignored medical advice concerning a serious condition, and had unprotected sexual intercourse with his victims. Such a degree of recklessness is arguably just as morally blameworthy as a person who has actual knowledge of their HIV positive status. However, for several significant reasons, Ryan concludes:

[T]he arguments against basing liability for transmission of HIV on a finding of wilful blindness greatly outweigh those in favour of doing so. While recognising the attractiveness of equal culpability arguments (especially in cases where an individual suspects very strongly that they have the HIV virus, has ready access to medical testing, and being fully aware of the risks, continues to have unprotected sexual intercourse with unsuspecting partners), the disadvantages associated with adopting such a policy, particularly the potential for discrimination and prejudice lead the author to conclude that only actual knowledge should be sufficient for criminal liability.

There are further serious problems with the approach to criminalising the transmission of HIV and other sexually transmitted diseases as seen in Adaye. One may consider that a defendant who has constructive knowledge of their disease is morally blameworthy, and that the imposition of criminal liability may lead to a greater awareness of medical testing in the wider community. The criminal law assumes that there is a general level of public knowledge and a general level of medical advice and treatment given to patients in relation to HIV; yet this position has received criticism. H L Dalton, (‘“Criminal Law” in AIDS Law Today: A New Guide for the Public’, Yale University Press, 1993), considers that, in the context of the severity of a section 20 conviction, the fact that “we cannot be confident that the accused even knew, for example, which sex acts are risky and which are relatively safe” is extremely worrying. This is a valid concern, considering that a HIV sufferer who is uninformed about the risks of unprotected sexual intercourse, and who does not understand how the disease is transmitted, may face up to five years imprisonment if found guilty of a section 20 offence. Nonetheless, at least in the UK, the accessibility to sexual health advice is much greater today than it was at the time Dalton’s concerns were expressed. 

Consent as a Defence

One may argue that that the current state of the law attempts to ensure a fair imposition of criminal liability by balancing the interests of both potential victims and HIV sufferers. As established in Konzani, per Judge LJ at paragraph 44, HIV sufferers have a defence if they have an honest belief that their partner had consented to sexual intercourse in full knowledge of the sufferer’s status:

By way of example, an individual with HIV may develop a sexual relationship with someone who knew him while he was in hospital, receiving treatment for the condition. If so, her informed consent, if it were indeed informed, would remain a defence, to be disproved by the prosecution, even if the defendant had not personally informed her of his condition. Even if she did not in fact consent, this example would illustrate the basis for an argument that he honestly believed in her informed consent. Alternatively, he may honestly believe that his new sexual partner was told of his condition by someone known to them both. Cases like these, not too remote to be fanciful, may arise.

Significantly, this reflects a respect for the principle of autonomy in the criminal law. For Matthew Weait, denying someone the right to consent to sexual intercourse with an infected person, and simultaneously denying an infected person this defence, would “amount to an infringement of autonomy that only Parliament should sanction.” Additionally, the aforementioned case law examples similarly demonstrate a strong argument in favour of autonomy; the court’s obiter dicta comments in their decision of Clarence were particularly concerned with the issue of consent to sex with an infected person, rather than consent to sex. Moreover, in Dica, Judge LJ, at paragraph 37, stated:

The question for decision is whether the victims' consent to sexual intercourse, which as a result of his alleged concealment was given in ignorance of the facts of the appellant's condition, necessarily amounted to consent to the risk of being infected by him. If that question must be answered "Yes", the concept of consent in relation to s.20 is devoid of real meaning.

Some critics argue that the defence of “full knowledge consent” does not go far enough. There is a fine distinction in the law concerning consent; a person may consent to running the risk of infection, but a person cannot consent to the infliction of the infection. In essence: there is a limit to what can legally be consented to. The difference between the two situations concerns recklessness and intention. If a defendant has disclosed their HIV status and their sexual partner consents to the risks, then the defendant has not been reckless. In that situation, the defendant does not fulfil the necessary state of mind to be convicted under S.20 OAPA 1861. However, if the defendant intends to inflict their sexual partner with HIV or another STD, then consent does not provide a defence.

It was held in R v Brown that consent could only be a defence to offences under s.20 OAPA 1861 in instances of some lawful activities. The majority in that case held that the defendants could not utilise consent as a defence to the sado-masochistic activities carried out on their victims. Lord Templeman, at page 235, stated:

The criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally. In any event the appellants in this case did not mutilate their own bodies. They inflicted bodily harm on willing victims.

His Lordship then went on to conclude, at page 237, that:

Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.

In light of this position, the criminal law does not wholly respect the principle of autonomy in relation to individuals who infect their willing partners. There are a number of different reasons why people would make the radical, and potentially fatal, decision to be infected with HIV. As Moskowitz and Roloff have shown, there is a sub-culture of “bug-chasers”: people who choose to be infected with sexually transmitted diseases. The taboo of having a sexually transmitted disease, or the risk of getting one, can be an attractive prospective for some people. Others may persuade their partners to infect them with a disease if they are in a committed relationship; once it is ‘over and done with’, both partners will have the same sexual health concerns and experiences. Although it is unlikely that a ‘bug-chaser’ would bring criminal proceedings against the person who has infected them, it is clear from R v Brown that a paternalistic approach to harm incurred through sexual activities is not beyond the scope of the criminal law.

Many HIV prevention campaigns stress that everyone is responsible for their own sexual health. Conversely, the Court of Appeal in Konzani expressly rejected the defendant’s argument that some responsibility should be placed at the door of individuals who run the risks associated with unprotected sex. This undermines the use of the criminal law as a regulatory mechanism, because it does not encourage total personal responsibility for sexual health. However, these legal developments do have some significant advantages for potential victims; the possibility of a criminal sanction being imposed will act as a deterrent to those who would otherwise willingly infect uninformed sexual partners.

Overriding Clarence was an important step forward in enabling the criminal law to punish someone causing serious harm to another for the reckless transmission of HIV or other STDs. Although Clarence concerned the transmission of gonorrhoea, which can be cured with medication, Dica and Konzani concerned HIV, which, although manageable with medication, cannot be cured and can be fatal. If one considers John Stuart Mill’s ‘harm principle’, wherein only behaviour which causes harm to others should be criminalised, then utilising the criminal law to prosecute people who spread such diseases is entirely justified.

Expansion to Other Diseases

Although this article has already considered some of the prominent arguments for and against criminalisation of the transmission of HIV, such as fostering a health-aware culture, the harm principle, and the problems of understanding how the disease can be transmitted, it is necessary to additionally consider the position of the criminal law to the reckless transmission other STDs.

There has been some expansion of the principles established in Dica, Konzani and Adaye. The case of David Golding caused outrage amongst STD prevention campaigns and support groups because the defendant was sentenced to 14 months in prison for recklessly transmitting genital herpes to his former partner. This expansion of the law to criminalise the transmission of the herpes virus was particularly controversial due to issues of causation; the virus itself can lay dormant in a person’s system for up to 10 years. Additionally, as it is a particularly widespread virus, with up to 70% of people carrying facial herpes, it is almost impossible for a prosecution to prove beyond all reasonable doubt that an individual infected another with a disease. This is further complicated by the fact that there is no legal difference between the facial and genital herpes viruses; would kissing someone, and hence transmitting facial herpes, amount to a criminal act? The principles set out in HIV cases are, therefore, inadequate to deal with instances of other sexually transmitted diseases. Significantly, Golding’s conviction was later quashed. The problem of adequately dealing with the reckless transmission of sexually transmitted diseases remains.

Lowbury and Kinghorn have argued that individuals, especially those who are suffering from particularly severe STDs, “risk being ostracised, with their families taunted and their employment and entire existence under threat.” The stigma of sexual health problems, therefore, has the potential to be life changing. Sufferers may feel that the social labels attached to HIV and other sexually transmitted diseases depicts them as a ‘bad’ person because they have engaged in unprotected sex. It may not be in the public interest to pursue a law that further stigmatises sexually transmitted diseases; indeed, the cumulative effect of criminal and social stigmas may discourage people from seeking medical testing and treatment. In other countries, this affect has been seen in particular communities that have a high risk of contracting severe sexually transmitted diseases, such as homosexuals. As Das and Horton have shown, “In many African and Caribbean countries, the former Soviet Union, and most of the Middle East, citizens face persecution for discussing safe sex behaviour, are unable to access harm reduction services, are unable to talk openly about their lives, and cannot get tested for HIV without the fear of being stigmatised.”

Clearly, one must take a pragmatic approach to criminalising sexually transmitted diseases; although it is clear that great harm can be caused, and that some individuals are blameworthy for their behaviour, sexual health is a sensitive and controversial issue. Without increased avenues for support and treatment, criminalisation will do little more than foster a stigmatic society for people who suffer from STDs. In order to address the HIV epidemic and the spread of other STDs, sexual health clinics should further their ability to be readily available to young people to provide advice on both treatment and prevention.

Further Reading 

S Bronnit, ‘Spreading Disease and the Criminal Law’ (1994) Criminal Law Review 540

The Avert Charity 

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Tagged: Criminal Law, Justice, Medical Law & Ethics

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