English Appeal Court rules that HIV non-disclosure may be 'provocation' (amended)

Edwin J. Bernard
Published: 05 December 2007

Judges at London’s Court of Appeal have today ruled that non-disclosure of an individual’s HIV-positive status before having sex may be considered a relevant factor in sentencing. The ruling came during the appeal of a gay man who had been sentenced to life imprisonment for severely attacking an HIV-positive man for not disclosing his HIV status until after they had had casual, consensual sex.

According to a report in today’s Halifax Evening Courier, 26 year-old David Summers had previously admitted causing grievous bodily harm with intent at Bolton Crown Court and was sentenced to life imprisonment in July.

The men had met on Manchester’s gay scene and gone back to the unnamed HIV-positive man’s flat for sex. When, following sex, the man disclosed that he was HIV-positive – the report does not mention the important fact of whether or not condoms were used – Summers attacked the HIV-positive man, “leaving his victim unconscious in his blood-spattered flat before taking property and driving off in his car.”

The HIV-positive man, says the report, “suffered bleeding to his brain as a result of the beating and has been left with permanent disabilities.”

At today’s appeal, Summers’ barrister, James Ward, claimed that the HIV-positive man had "deceitfully exposed him to risk of infection with HIV... The victim knowingly concealed from him the fact that he had HIV and put this appellant at a direct risk from that disease. It was the deception that caused the appellant to react the way that he did. He said if he had known he was HIV-positive he wouldn't have had any sex with him at all."

The report says that Mr Ward argued that Summers, therefore, acted under extreme provocation.

Lord Justice Richards, sitting with Mr Justice Openshaw and Judge Martin Stephens QC, allowed the appeal and quashed Summers’ life sentence. Instead, they imposed an indeterminate sentence of imprisonment for public protection.

James Chalmers, Senior Lecturer at the University of Edinburgh School of Law, notes that Summers' appeal "seems to have succeeded only in a very technical sense. An indeterminate sentence for public protection is barely any different from a life sentence – the main difference is that it's available for a broader range of offences. Unless the court set a different minimum term for his sentence (which is not clear from that report), this is unlikely to make any difference to how long he spends in jail. Although his counsel argued that there was 'serious provocation', it's not clear from the report that the judges actually bought that argument."

During their decision, Lord Justice Richards noted, "The victim had put [Summers] at a direct and very serious risk of contracting a terminal illness. When he realised he had slept with a man who was HIV-positive he must have been shocked. But I cannot believe that any court would be properly discharging its public duty if it realistically could licence or permit an attack of this brutality.”

Nevertheless, he concluded: “We don't consider this offence so serious to warrant a life sentence."

Although this ruling was only about sentencing the decision sets a "worrying precedent", notes Daniel Monk, Senior Lecturer, School of Law, Birkbeck College, University of London, "Provocation can only be used as a defence to murder, where it can reduce the crime to manslaughter so in this case if the victim had died as a result of the attack the approach of the court suggests that Summers might have been able to argue that it was not murder.

In other words a ‘reasonable’ person might respond in that way."

"The case also supports the worrying trend of the courts seeing non-disclosure as an unexplainable, and always totally inexcusable act," he concludes.

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