Consent (criminal Law) - Consent Obtained By Deception - Sexual Transmission of Disease

Sexual Transmission of Disease

In 1998, the Home Office issued a consultation paper entitled Violence: Reforming the Offences Against the Person Act 1861 rejecting the Law Commission's recommendation that there should be offences for the intentional or reckless transmission of disease. The Government " particularly concerned that the law should not seem to discriminate against those who are HIV positive, have AIDS or viral Hepatitis or who carry any kind of disease".

It did, however, accept that society should have criminal sanctions for use against "evil acts", and that this might include people who transmitted diseases causing serious illness to others with intent to do them such harm, adding that "this aims to strike a sensible balance between allowing very serious intentional acts to be punished while not rendering individuals liable for prosecution of unintentional or reckless acts or for the transmission of minor disease" (see paras 3.13-318)

In 2000, the government repeated that view in a consultation relating to the law on manslaughter, "The Government remains wholly committed to this approach."

This has since been considered in R. v Dica, which deals with the transmission of HIV, holding that it was not necessary to prove that the transmission had involved an assault for the "inflicting" of the disease.

The judgment rejects the rule in Clarence as tainted by the then presumption of a wife's marital consent to sexual intercourse, although Clarence was still being applied after the criminalisation of rape within marriage. The more modern authorities involving the transmission of psychological conditions and in other sexual matters, reject the notion that consent can be a defence to anything more than a trivial injury.

Yet this is not without its difficulties. If it is proposed to criminalise the consensual taking of risks of infection by having unprotected sexual intercourse, enforcement is impractical. The community prefers that sexual relationships are a private matter between the individuals involved and if adults were suddenly to be liable to prosecution for taking known risks with their health, this would represent a significant interference with personal autonomy. Further, the law cannot expect people suddenly to become honest with each other and to counsel the use of condoms, and there may be negative consequences if HIV was to be disclosable, because those who ought to take medical advice and undergo tests, might be discouraged from doing so.

Consequently, the Appeal Court decided that had the women known of his infection, their consent to unprotected sexual intercourse would have been a valid defence. In this regard, they overturned the ruling of the original judge.

In R. v Konzani, the defence argued that by consenting to unprotected sexual intercourse with the defendant, the women were impliedly consenting to all the risks associated with sexual intercourse which included infection with HIV. In cross-examination two of the three women had explicitly acknowledged that, in general, unprotected sexual intercouse carried a risk of infection.

However the Appeal Court judges ruled that before the complainants' consent could provide the appellant with a defence, it had to be an informed and willing consent to the specific risk, here the risk of contracting HIV, rather than the general one of contracting something. The same court held that a person accused of recklessly transmitting an STI could only raise the defense of consent, including an honest belief in consent, in cases where that consent was a "willing" or "conscious" consent. In other words, the court distinguished between “willingly running the risk of transmission” and “willingly consenting to the risk of transmission.” This suggests that consent will only operate as a defense – in all but the most exceptional of cases – where there has already been prior disclosure of known HIV positive status. Judge LJ. summaries the situation at para 42: 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 HIV 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 HIV 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. Equally, her personal autonomy is not normally protected by allowing a defendant who knows that he is suffering from HIV which he deliberately conceals, to assert an honest belief in his partner's informed consent to the risk of the transmission of HIV. Silence in these circumstances is incongruous with honesty, or with a genuine belief that there is an informed consent. Accordingly, in such circumstances the issue either of informed consent, or honest belief in it will only rarely arise: in reality, in most cases, the contention would be wholly artificial. Baker (2009) in "Moral Limits of Consent" 12(1) New Criminal Law Review argues even if the consent in Konzani was genuine, that it like Brown was rightly decided, as Baker is of the view that a person cannot consent to irreparable harm of a grave kind without also degrading his or her humanity in the Kantian sense. Baker also argues that the Harm Principle provides an important constraint, as it prevents the consenter from being criminalized because it is only harm to others that is criminalisable under the Harm Principle—not harm to self. Therefore, it is only those who rely on consent to inflict grave harm on their fellows humans that are criminalized under Baker's proposals. However, Baker points out that R v. Brown is more borderline, as the harm in that case was reversible and is not too different to having unnecessary plastic surgery that is no longer benefiting the patient—that is numerous surgical procedures which are clearly having a disfiguring rather than beneficial cosmetic effect.