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The Gift That Keeps on Giving: Legal Implications of ‘Bugchasing’

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About The Author

Liam Reynolds (Regular Contributor)

Liam is a second year Law student at the University of Manchester. He spent a brief time at the University of Cambridge studying social sciences before realising that anything suffixed with ‘ology’ was definitely not for him. Liam was honoured to receive three scholarships in the first year of his LLB and is looking forward to being published in the Manchester Review of Law, Crime and Ethics later this year.

Image © Sham Hardy on Flickr

Gift-giving is an integral part of human socialisation. We give gifts for birthdays, Christmas, anniversaries, but in some LGBT+ subcultures there is a more insidious form of ‘gifting’ taking place. While it does pain me to say it, this is a problem that has (at least publicly) been confined to homosexual men.

‘Bugchasing’ is the act of intentionally becoming infected with Human Immunodeficiency Virus (HIV):

A bug chaser is slang for someone who pursues sexual intercourse with people who are HIV-infected in order to eventually contract HIV. A gift giver is an HIV-positive person who wants to infect HIV-negative participants who willingly seek to become HIV-positive.

Prominent HIV blogger and activist Justin B. Terry-Smith

A 2003 documentary highlights the plight of two young ‘chasers’ and makes for interesting, if not tremendously sad, viewing. The prevalence of the practice is unclear, but it seems largely confined to gay men. Queer theorist Tim Dean notes in his research into the subject that ‘barebacking culture’ is a form of defiance, resisting heterosexual and mainstream homosexual norms of masculinity.

The virus itself is ‘no longer a death sentence’ but it is, unfortunately, incurable. The virus slowly weakens the immune system to the point that it can no longer fight off even minor illnesses like the common cold. Bug chasers fetishize the transmission of HIV as erotic. Through the eyes of a chaser the risk of contracting HIV is seen as the ultimate sexual thrill. An interview with a former chaser for a popular HIV publication compares the thrill to a game of Russian Roulette: the thrill comes from not knowing who will infect the chaser and the wait for a positive diagnosis. This seems staggering to most people, with one word jumping to our minds: Why? There is little research on the subject, and indeed any research on the reasons for bugchasing may be of more use to a sociologist than a lawyer. This article aims to examine some of the potential legal issues of the practice and argues that the law is right to take a harsh approach to the transmission of disease, even where both parties consent to it.

A Brief History of HIV

The 1980s is remembered for a range of different reasons, with clothes, music, and free-market economics close to the top of most people’s lists. There was also the ‘AIDS crisis’. New cases were appearing daily, and high-profile celebrities were dying of AIDS related illnesses. Fear inevitably took over. The hidden homosexual lives of celebrities like Rock Hudson and Freddie Mercury helped to cement the idea that HIV/AIDS was a ‘gay disease’ spread by promiscuous homosexual men.

In 1988 the passing of the Local Government Act prohibited the ‘promotion’ and ‘teaching’ of homosexuality as acceptable. Section 28 caused outrage in the LGBT community, but one of its key aims is often overlooked.

Section 28(2) stated:

Nothing in subsection (1) above shall be taken to prohibit the doing of anything for the purpose of treating or preventing the spread of disease.

Local authority bodies, such as schools and the NHS, were indeed allowed to talk about homosexuality – if only to inform people how it spreads disease. It was cemented in legislation that homosexuality, promiscuity, and the spread of disease were one and the same.

Time has moved on and thankfully section 28 has long since been repealed. The prevalence of (and ignorance to) HIV, however, is still going strong. The Terrence Higgins Trust reports that nearly one in five of HIV positive people do not know they have it, and over half of newly diagnosed cases in 2014 were from men who have sex with men (MSM).  

Figures from the capital are even more worrying. London is a global hub of the LGBT scene, with areas like Soho and Vauxhall attracting millions of people each year. But now one in eight men in London are living with HIV – more than three times the national average.

Bugchasing may only be a minor phenomenon (without any concrete research in the area it is difficult to know for sure), but combined with new trends such as Chemsex parties in the LGBT community, there is a serious risk of two things: the increased prevalence of this awful disease in our community, and the social stigma which comes with it.

The Law on Disease Transmission

Criminal cases involving the transmission of disease go back to the 1880s, with R v Clarence (1889) 22 QB 23 setting the scene. The defendant, Mr Clarence, was convicted of both ABH (s 47 OAPA 1861) and GBH (s 20 OAPA 1861) after knowingly transmitting gonorrhea to his wife. His conviction was quashed on appeal.

The decision was not unanimous, with Hawkins J stating:

I cannot, therefore, be a party to a judgment which in effect would proclaim to the world that by the law of England in this year 1888 a man may deliberately, knowingly, and maliciously perpetrate upon the body of his wife the abominable outrage charged against the prisoner, and yet not be punishable criminally for such atrocious barbarity.

No doubt this would be the logic of most people today. However, the law in this area received significant modernisation in the early twenty-first century. The cases of R v Dica [2004] 3 ALL ER 593 and R v Konzani [2005] EWCA Crim 706 concern two men who had knowledge of their HIV status and did not disclose it to their sexual partners. Clarence was already bad law at this point. The issue of martial status in Clarence aside, R v Brown [1994] 1 AC 212 (the facts of which any criminal law student will have burned into their memories) had established that an individual cannot consent to more than a mere battery. Consent is no defence to a charge of ABH or GBH.

Establishing that the victims in Dica and Konzani had consented was not an issue if the transmission of disease amounted to actual bodily harm or grievous bodily harm. Judge LJ considered Clarence and overruled it at paragraph 39 of Dica:

… Given the long-term nature of the relationships, if the defendant concealed the truth about his condition from them, 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 defendant with a defence to the charge under section 20.

Mr Dica was convicted under s 20 of recklessly inflicting GBH.

At paragraph 54 it was stated:

If the criminal law [is] to become involved at all, this should be confined to cases where the offender deliberately inflicted others with a serious disease.

The judges rightly considered that sexual relations are private acts which should be traversed and negotiated by the parties involved. It would be wrong for the criminal law to become too involved in such private relations.

But this does not exhaust the story for the purposes of this article. In a situation where bugchasing occurs it is clearly the case that there is ‘deliberate’ infliction of disease, but of course the whole point of bugchasing is that the victim (if they could be so called) has consented. Where does this leave us?

Bugchasing and Consent

It was made perfectly clear in Dica that there could be consent where a person knows of the risk that their partner may transmit disease and decides to run it. This seems entirely appropriate. We face all kinds of every day risks. We do not invoke the criminal law every time we take a risk and it goes against us.

So, the person who knows his or her partner may have HIV (for example, if they have expressed their concerns and are awaiting test results) and decides to have unprotected sex with them anyway will not be able to rely on the criminal law.

The situation becomes more complex where a person does know their partner has a sexually transmitted infection. Of course, the risk of transmitting HIV through sex is not 100%. Where the infected person is ‘undetectable’ (they have a severely reduced viral load in their bloodstream due to medication taken for the virus) the risk of transmission may fall to as low as 4%. This has not yet been considered in any court but it does pose an interesting question – where do we draw the line between a fleeting sexual risk and a serious criminal offence?

Paragraph 58 of the Dica judgement reads:

We repeat that the Crown did not allege, and we therefore are not considering the deliberate infection, or spreading of HIV with intent to cause grievous bodily harm. In such circumstances, the application of what we may describe as the principle in Brown [1994] means that the agreement of the participants would provide no defence to a charge under section 18 of the 1861 Act .

Bugchasing would therefore fall within section 18 and therefore constitute intentional GBH. The consent of a person to contract HIV from their partner is voided by the law and they become a victim of a serious criminal offence, despite their full consent and desire to become infected. This is even more significant when we consider that the maximum penalty under s 18 is life imprisonment.

In any case, the failure to be able to consent to transmission of disease does not vitiate consent to the sexual act itself. In R v Linekar [1994] EWCA Crim 2 a man promised to pay a prostitute in receipt for sex. He did not do so and she claimed that this invalidated her consent. The nature of the act, she argued, was intrinsically tied up with receiving money in return. This argument was not accepted, and it was held that no rape had occurred. Similarly, it seems unlikely that a ‘gifter’ would be charged with rape.  

If we want to safeguard a society which values human life and human dignity how can we condone intentionally spreading incurable diseases? Of course, the line has to be drawn somewhere, and I contend that the risk alone should not be criminalised, for the simple reason that risks are a part of everyday life. The intentional act, however, should face punishment as a deterrent to others. If I were to stab a person, which left them with permanent injuries and disabilities, I would face the full force of the criminal law. Why should we treat the intentional transmission of a life-threatening (although due to advances in medical science it may be more appropriate to call HIV life-altering) as any different? The only real distinction seems to be one of form and not of substance. There are also real concerns for the LGBT community at large. Were we not to punish bugchasing it seems entirely possible that we could see a reversion in public opinion, back to viewing gay men as sexual deviants. For a community that has come so far, and in a relatively short time, we cannot risk going back to a 1980s mentality associating gay men and sexual infections. 

Pornography and Bugchasing

Pornography is everywhere. It is a frequently debated topic, with both sides of the debate having strongly held beliefs on whether it should or should not be more firmly regulated. In light of what has been elucidated above it is worth considering the position of pornography and bugchasing. It is not inconceivable that there is pornography apparently depicting the intentional (and consensual) depiction of disease transmission somewhere. What position does this leave the viewers of such content in?

Were a criminal trial ever to be brought for such a situation it would likely be done under what the law calls ‘extreme pornography’. An ‘extreme image’ is defined in section 63(6)(b) Criminal Justice and Immigration Act 2008 as an image which ‘is grossly offensive, disgusting or otherwise of an obscene character.’

What might happen if a criminal case were to be brought against someone under the laws that regulate ‘extreme pornography’ in the context of bugchasing? If, for example, an online video was advertised as depicting ‘gifting’ taking place?

Bugchasing necessarily requires unprotected penetration, neither of which falls under ‘offensive, disgusting, or obscene’. In any case we cannot see the virus being passed from person to person, so it seems unlikely to be classed as extreme pornography in this way.

However, sub-section 7 explains in more detail what constitutes an ‘extreme image’:  

(7) An image falls within this subsection if it portrays, in an explicit and realistic way, any of the following—

(a) an act which threatens a person's life,

This complicates the matter. I doubt the draftsperson ever had the situation of pornography depicting bugchasing in their mind when drafting this legislation, but the criminal law is an exercise in making new situations fit within old laws.

Does the act itself threaten someone’s life? Obviously, sexual penetration does not threaten a person’s life. But if this is coupled with knowingly transmitting a potentially fatal disease, would that be enough? The problem of course is what ‘threatens’ a person’s life. HIV certainly does threaten a person’s life, but it can be years before it becomes symptomatic. Surely the law on extreme pornography which threatens life envisions something more immediate? And what if the advertisement of the video as depicting bugchasing were false? If we cannot see the transmission of HIV then we cannot be sure that is what we are really viewing – it may merely be advertised as such to appeal to someone who has that fetish. On the other hand, it may be argued that such images ‘speak for themselves’ in that the pain inflicted may not be immediately obvious but nonetheless exists. Possession of such pornography could lead to a successful conviction.

Until a case comes before the courts we can only speculate. The law is unclear, but I remain unconvinced that possessing pornography which alleges to depict transmission of disease would be capable of forming a criminal offence.

Conclusion

Bugchasing is a sexual fetish which is not well researched or understood. However, there are many testimonies which support its existence. But it certainly is a real phenomenon and one which may face the criminal courts in time.

Increased media coverage of both bugchasing and ‘chemsex’ as normal behaviour cannot be a good thing for a community which has worked so hard and faced so much oppression in fighting off stereotypes of gay men as promiscuous disease spreaders. Public opinion on the LGBT community has seen a seismic positive shift in recent years, but prejudices still remain and there is still work to be done. If a case involving bugchasing were to come before the courts a positive conviction may alleviate such public concerns.

HIV sufferers should never face stigma for their illness, but we cannot allow ourselves to get to a point where it is ‘the norm’ in the gay community and seen by the public as an intrinsic part of our identities. Gay activists have worked too hard for too long to be faced again with the stigma of the 1980s. 

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Tagged: Criminal Law

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