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Recklessly infecting becomes a crime

Last October, Mohammed Dica was convicted of ‘recklessly inflicting grievous bodily harm’ on two women whom he had infected with HIV. Charged under section 20 of the Offences Against the Person Act 1861, he was sentenced to eight years’ imprisonment.

Newspaper headlines trumpeted Mr Dica’s status as a refugee in Britain, but the case also attracted the concern of AIDS activists. They feared a flood of prosecutions driving people at risk of infection underground and increasing the spread of HIV. An appeal by Mr Dica was recently upheld. However, the Court of Appeal’s reasoning still supports the intervention of criminal law in this area of public health.

The conviction was overturned because the trial judge had refused to admit evidence that the women knew of Mr Dica’s HIV status. The judge invoked the principle that consent is no defence to the violent infliction of serious personal harm. However, the Court of Appeal held that this principle, laid down in a case involving sado-masochists, had no application to the risk of infection with STIs. The most severe aspect of the original decision was thus eliminated.

So Mr Dica will be excused if the women consented. But how can this be proved? Will consent to the sexual intercourse itself be sufficient?

Yes, according to the Victorian case of Clarence, where it was irrelevant that a woman’s husband had not informed her that he was carrying gonorrhoea. No, according to the Court of Appeal in Dica.

Public policy no longer favours the subordination of women in this way. The element of ‘recklessness’ that is required by section 20 would be present if someone specifically fails to inform sexual partners that they are infected with HIV. Indeed, they may also be guilty if they have good reason to believe they are infected – even though an HIV test has not yet been taken.

Admittedly, the appeal court suggested the accused might be absolved of their duty to disclose where a condom is used.

As a result of Dica, the law has entered the bedroom, reallocating the balance of rights and responsibilities between sexual partners. Public health specialists had favoured legal non-intervention as regards HIV/ AIDS – adequately warned about the dangers of unprotected sex, individuals would take responsibility for avoiding infection themselves. Those who failed to do so could expect no legal redress.

Whatever the merits of this strategy in public health terms, it produced an anomalous suspension of the general principles of criminal law. Collective concerns about the spread of HIV triumphed over individual rights. No longer: with Dica the courts have rejected the underlying assumption that we are all equally capable of protecting ourselves regardless of fraud or other pressures. The infected person’s responsibility to avoid the risk of infection may now be outweighed by their partner’s duty not to cause them harm without their knowledge.