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Criminalising HIV Infection
   Last updated: 25.08.04
What the first-ever criminal conviction for transmitting HIV in England & Wales mean to people living with HIV, by James Chalmers
On October 14th 2003, Mohammed Dica was convicted of two counts of "unlawfully and maliciously inflicting grievous bodily harm" on two women for infecting them with HIV. This represents the first conviction for the sexual transmission of disease in England & Wales for well over a century - and the first ever for the transmission of HIV. It is not, however, the first such conviction in the United Kingdom - that took place in Scotland (where a different system of criminal law applies) in February 2001, when Stephen Kelly was convicted of having "recklessly injured" his former partner by infecting her with HIV.

Why did this happen?
For some time, it was thought that there could be no criminal offence under English law in circumstances such as those in the Dica case. This view goes back to a court decision known as R v Clarence, decided in 1888.1

In that case, Clarence knew that he was infected with gonorrhoea. He did not inform his wife of this fact, and she became infected as a result of sexual intercourse with him. Initially, he was convicted of the offence of "unlawfully and maliciously inflicting grievous bodily harm" - an offence under section 20 of the Offences Against the Person Act 1861 - the same offence of which Mohammed Dica was convicted. His conviction was, however, quashed on appeal. The appeal court took the view that a person could not be said to "inflict" grievous bodily harm unless they had attacked the victim in some way, for example by striking a blow or using a knife.

For some time, it was thought that the decision in Clarence would make it impossible to convict anyone of a criminal offence for passing on a sexually transmitted infection (STI) by consensual sexual intercourse. However, subsequent decisions of the courts suggested that the interpretation given to the word "inflict" in Clarence was too narrow. In particular, the House of Lords held in 1998 that a man who had caused psychological illness to a woman by "stalking" her over a period of time could be guilty of this offence, despite never actually having attacked her.2

It was recognised that this called the decision in Clarence into doubt,3 but the Dica case appears to represent the first successful attempt to bring a prosecution in such circumstances.

The sentence imposed
On November 3rd 2003, Dica was sentenced to a total of eight years’ imprisonment (three and a half years in respect of one of the convictions, and four and a half in respect of the other). The maximum penalty which can be imposed for this offence is five years (there is no minimum penalty).

The sentence is broadly consistent with the approach which has been adopted in other jurisdictions – Stephen Kelly was sentenced to five years’ imprisonment, while the Canadian courts have imposed a sentence of as high as eleven years in a case where two women were infected with HIV as a result of conduct similar to Dica’s.4

Dica will become eligible to apply for parole after he has served four years’ imprisonment (half of the sentence imposed). He will also be eligible to apply for early release on compassionate grounds if his health deteriorates seriously while he is still in prison.

What happens next?
According to media reports, Dica's lawyers have indicated that they intend to appeal against his conviction and sentence. Given that the courts have never expressly overruled the decision in Clarence, it is important for the law to be clarified by the Court of Appeal, and the case could well end up in the House of Lords. If the case goes that far, it could take some time - perhaps a couple of years - before a final decision is reached. Given earlier court decisions on the meaning of "inflicting grievous bodily harm", it is unlikely - although not impossible - that the courts will hold that the transmission of HIV in this way cannot be a criminal offence. A decision of an appeal court should, however, help to clarify the law. At present, the legal position is far from clear. The Court of Appeal may, however, consider a reduction in the sentence imposed, particularly as the sentence on one charge is very close to the maximum permitted by law.

What follows is an attempt to provide guidance on the consequences of the case, although it is impossible to be precise until a higher court clarifies the issues.

Is the decision retrospective?
Yes. Unlike an Act of Parliament, which normally only applies to conduct taking place in the future, a court decision applies to conduct which has taken place before that decision as well. It is, therefore, theoretically possible that prosecutions could be brought for cases of transmission prior to this decision. However, it is unlikely that any prosecutions will be brought for cases that occurred a considerable time ago, and any attempt to bring such a case might well fall foul of the right to "trial within a reasonable time" under the European Convention on Human Rights.

Is the government likely to intervene?
Successive governments, both Conservative and Labour, have shown no inclination to legislate to make the transmission of HIV a criminal offence. In 1992, there was public controversy after a man was accused of deliberately infecting four women with HIV. The matter was repeatedly raised in Parliament, and the government repeatedly indicated that it had no intention of acting, citing "difficulties both of principle and of practice in bringing this type of behaviour within the scope of the criminal law."5

In 1998, the Home Office did publish a consultation paper, suggesting that legislation might be brought forward criminalising the deliberate transmission of serious disease. However, no such legislation has been introduced.6

Ironically, the government's failure to act in this area may have resulted in the courts "creating" an offence that is potentially far wider than anything for which the government might have been prepared to legislate. The government is likely, however, to leave these issues in the hands of the courts. There would be little political mileage in any other course of action.

The current government is, however, considering longer-term proposals for wide-ranging reform of the criminal law - in particular, bringing major criminal offences together in a single "criminal code". The criminalisation of HIV transmission might be addressed as part of this process, but any such reform is likely to be years away yet.

Will there be a flood of prosecutions?
It is very unlikely indeed that the Dica case will result in a significant number of prosecutions for transmitting HIV. In Scotland, there do not appear to have been any further prosecutions since Stephen Kelly's conviction in February 2001. The experience of other jurisdictions that have criminalised the transmission of HIV in certain circumstances suggests that prosecutions are likely only to be brought in exceptional cases.

In that respect, it is significant that both Kelly and Dica were accused of having actively discouraged their sexual partners from using condoms. Additionally, the charge against Kelly expressly alleged that he had claimed to his partner that he was not HIV-positive. It is unlikely that the Crown Prosecution Service will be as keen to bring a prosecution where the allegation is simply one of a failure to disclose one's HIV status, without the HIV-positive partner having actively encouraged the other party to engage in unprotected and unsafe intercourse.

Furthermore, prosecutions are unlikely to be brought unless there is more than one complainer - otherwise, the evidence of one alleged victim is unlikely to be sufficient for proof beyond reasonable doubt.

Is the offence limited to HIV?
The offence recognised by the court in the Dica case is not limited to cases involving HIV, but could extend to any STI that might be regarded as "grievous bodily harm".

There are, in fact, UN guidelines on the criminalisation of HIV transmission that explicitly recommend that such criminal offences should not be limited to HIV, because it would be wrong to "single out" the virus in this fashion.7

Indeed, there was an attempt early in 2002 to prosecute a man for transmitting viral herpes to his partner, although there were no newspaper reports of the case after an early procedural hearing and it is not clear what happened to the case thereafter.8

The "state of mind" required for the offence
To be guilty of any serious criminal offence, a person must have acted with a culpable state of mind - which lawyers refer to as mens rea. The mens rea required for the offence of inflicting grievous bodily harm is intention or recklessness. In other words, for a conviction, it would be necessary to show that the defendant intended to infect the other party with HIV, or that they were reckless as to this possibility - that is, that the defendant was aware of the risk of infection.

It is theoretically possible, therefore, that a person could be guilty of this offence even if they had not received a positive result from an HIV test. It would, however, be necessary to show that they were aware of a significant risk that they might be HIV-positive. For example, if they had previously been regularly engaged in unprotected intercourse with a person or persons whom they knew to be HIV-positive. While a prosecution in such a case would be unlikely, it should be made clear that avoiding taking an HIV test does not provide immunity from criminal prosecution. This is the case in both Scotland and England & Wales and suggestions to the contrary9 are simply wrong10.

What is the effect of consent?
What if a person consents to unprotected sexual intercourse knowing that the other party is HIV-positive? Can an offence be committed in these circumstances, or does the consent of that person operate as a defence? Unless and until such a case comes before the courts, it is impossible to give a firm answer to this question. Some ATU readers may be familiar with R v Brown11 - the so-called "Spanner" case - where a group of men who engaged in consensual sadomasochistic activities were charged with assault. The House of Lords - by a majority of 3 to 2 - held that the fact that the activities were consensual was no defence, because of their "harmful" nature. The case later went to the European Court of Human Rights (ECHR), which held unanimously that the convictions had not been a breach of the ECHR.12

It is sometimes assumed that, because of Brown, the English courts would be obliged to hold that consent could not be a defence to a charge of inflicting grievous bodily harm by transmitting HIV.13 However, the Canadian courts have rejected this argument, pointing out that, first, consent to a risk of injury is not the same as consent to injury and secondly, consensual sexual intercourse is seen as serving a "positive social purpose", unlike sadomasochistic acts.14

It is likely that this approach would be followed in the English courts, although at least one US court has reached a different conclusion.15

Again, however, a prosecution in such a case is probably highly unlikely. The issue only arose in the Canadian courts because of an unsuccessful attempt to argue that, where a person unknowingly consented to a risk of HIV infection - because of their partner's failure to disclose their HIV status - their consent to sexual intercourse was thereby rendered invalid.

Tacit consent
What about cases where a person knows themselves to be HIV-positive, but their sexual partner consents to unprotected sexual intercourse without the issue of HIV (or other STIs) ever being raised? My view is that, under the law as it stands, there would be criminal liability in such a case if HIV were to be transmitted as a result. This is because it is difficult to argue that the HIV-negative party genuinely "consented" to the risk of transmission, given that they were not specifically aware of the risk.

However, it might be argued that there is a genuine consent to a risk of HIV transmission in some circumstance, perhaps between gay men who engage in unprotected anal intercourse without specifically discussing HIV infection - in backrooms, saunas or sex clubs, for example - because of the higher risk involved in such cases and the - arguably - greater awareness of such risks.

As indicated earlier, I doubt that a prosecution would be brought unless it could be shown that the accused person had lied to their sexual partner about their HIV status - as in the Kelly case - or had actively sought to dissuade their partner from using condoms, as was alleged in the Dica case. That does not, however, mean that a prosecution is ruled out as a matter of law.

Is the offence limited to cases where the transmission of HIV or an STI has actually resulted in infection?
If an HIV-positive person has unprotected sexual intercourse without disclosing their serostatus, but the other party does not become infected, then a prosecution would be unlikely. It is possible that there could be a prosecution for an attempt to inflict grievous bodily harm in such a case, but the prosecutor would have to show that the defendant actually intended to transmit the disease. It would not be enough to show that the positive person was simply reckless as to the possibility of the disease being transmitted.

What if condoms are used?
What if a person who is HIV-positive does not disclose this fact to their sexual partner(s), but uses condoms? Would a criminal offence still be committed if HIV were transmitted despite the use of condoms? The answer is probably that no offence has been committed, because that person could not be said to be acting "recklessly". In this context, the Canadian Supreme Court has suggested that the "careful use of condoms might be found to so reduce the risk of harm" that criminal liability would not result.16

Similar considerations would apply where the parties have engaged in sexual conduct but have refrained from "high-risk" sexual activities such as unprotected anal or vaginal intercourse. The courts might have more difficulty with unprotected oral sex, which cannot be considered “high-risk”, but does present a more than negligible risk. One Canadian court has taken the view that unprotected oral sex is insufficiently risky to be caught by the criminal law.17

Again, my view is that any future prosecutions will be confined to what might be considered "extreme" cases. It is, therefore, unlikely that any prosecution would be brought in such a case. The prosecution in the Canadian case mentioned above took place on the basis of an allegation of unprotected anal intercourse, and the question regarding oral sex only arose because the defendant denied that allegation but accepted that unprotected oral sex had taken place.

Non-sexual transmission
The discussion above has focused on the sexual transmission of disease. Transmission by other routes is possible, however – most obviously by the sharing of drug-injecting equipment – and the criminal law would apply equally to such a case. I suspect, however – although this may be an overly cynical view – that the prosecution authorities are likely to be less interested in such cases. A person who has become infected with HIV through intravenous drug use is unlikely to arouse sympathy to the same degree as the complainants in the Dica case.

Medical confidentiality
As a final point, it should be noted that although doctor-patient communications are generally regarded as confidential, a doctor is not entitled to refuse to give evidence of such matters in court. This is a long-established rule of law in both Scotland and England & Wales, and the court in the Stephen Kelly case rejected an objection to the leading of evidence along these lines.

Conclusion
It is impossible to state the current law with precision. From an academic perspective, this illustrates the difficulty of criminal law reform being undertaken by the courts rather than by Parliament.

From a practical point of view, however, the difficulties are more serious. If Dica's appeal against conviction is not pursued - and at the time of writing, this remains a possibility - the law may be left unclear for some considerable time. Even if it is pursued, the decision of the higher court - or courts - is unlikely to result in absolute certainty on the questions that have been highlighted above.

The most important point is, I think, that prosecutions for this offence are likely to be very rare indeed. The public prosecution authorities are likely, at least at present, only to be interested in cases where a person is accused of having actively deceived multiple victims. Private prosecution is, however, still an option in England & Wales, although unusual. Nevertheless, criminal liability remains a possibility in cases falling short of this.

The best legal advice that can be given at the current time is that HIV-positive individuals who are concerned about the risk of criminal liability should either disclose their serostatus to their sexual partners prior to sex, or insist on the use of condoms, or preferably do both. Effectively, the decision in the Dica case suggests that there is a legal duty on persons who are HIV-positive to disclose their HIV status before engaging in high-risk sexual activities.


Editor’s note: James Chalmers lectures in law at the University of Aberdeen. His articles on the criminalisation of HIV transmission have appeared in the Journal of Medical Ethics, the Juridical Review and Sexually Transmitted Infections.

References
1. R v Clarence (1888) 22 QBD 23.
2. R v Ireland; R v Burstow [1998] AC 147.
3. See, e.g., Strickland C. Why Parliament should create HIV specific offences. Web J Cur Leg Iss 7, 2001.
4. R v Mercer (1993) 84 CCC (3d) 41
5. Hansard HC 9th July 1992 vol. 211 col. 277w; Hansard HC 15th December 1992 vol. 216 col. 102w
6. Violence: reforming the Offences Against the Person Act 1861. London: The Stationery Office, 1998: para 3.18.
7. Handbook for legislators on HIV/AIDS and human rights. Geneva: UNAIDS, 1999:51.
8. R v Sullivan, Horseferry Rd. Magistrates' court, 11 Jan. 2002, unreported.
9. Criminalisation of HIV transmission: implications for public health in Scotland. BMJ 323:1174-7, 2001.
10. See Chalmers J.The criminalisation of HIV transmission.J Med Ethics 28:160-163, 2002.
11. R v Brown [1994] 1 AC 212.
12. Laskey, Jaggard and Brown v UK (1997) 24 EHRR 39
13. See, e.g., Bennett R et al. Ignorance is bliss? HIV and moral duties and legal duties to forewarn. J Med Ethics 26:9-15, 2000.
14. R v Cuerrier (1996) 141 DLR (4th) 503.
15. US v Bygrave 46 MJ 491 (1997)
16. R v Cuerrier [1998] 2 SCR 371, per Cory J. at para 129.
17. R v Edwards 2001 NSSC 80