Submitted By: Chloe Hanna
Question: Declan and Rachael are a couple who are part of a swingers group in Liverpool. This group involves couples meeting up in a house and exchanging partners for the night in order to have sexual intercourse. The group has a number of rules which members are supposed to adhere to including that all sexual acts must be consensual and safe. Members of the group are also advised to have regular tests for sexually transmitted infections. On one evening, Rachael and Declan swap partners with a couple whose names are Emma and Robert. Declan and Emma go into a bedroom together. They quickly have consensual unprotected sexual intercourse without talking to one another. Rachael and Robert go to another bedroom. They talk for a while first. Robert asks Rachael if she would like him to wear a condom. Rachael says there is no need to do so as she has ‘taken precautions against pregnancy and infection’. Robert and Rachael proceed to have unprotected sexual intercourse. A few months later, Rachael and Declan go for their regular sexually transmitted infection tests. They both test positive for Hepatitis B. Rachael and Declan report Emma and Robert to the police for infecting them. When questioned by the police, Emma states that whilst she knew that Robert was infected following test results he had received, she did not realise that she was infected with Hepatitis B. Meanwhile, Robert states that he had offered to wear a condom with Rachael, but that she had told him she had already taken precautions against infection. He assumed that she meant she had been immunised against Hepatitis B. When questioned, Rachael states that she meant that she was taking medication to prevent infection with HIV. Sometime later Rachael becomes ill with chronic Hepatitis B which requires her to be on treatment for the remainder of her life.
Discuss the criminal liability of Emma and Robert AND critically examine the law to which you refer.
(a) Discuss Criminal Liability
Emma and Robert have seemingly infected Rachael and Declan with the Hepatitis B Virus (‘HBV’); thus, they are potentially liable under the Offences Against the Person Act 1861 (‘OAPA’). Since there is no specific offence of transmission of disease, the courts have interpreted disease as a ‘biological harm’ which can be an infliction of grievous bodily harm (‘GBH’) (R v Dica 2004). There is no evidence that either Emma or Robert have the Mens Rea of intent, therefore intentional infliction of GBH (OAPA Section 18) will not be considered; however, they may be liable for reckless infliction of GBH under Section 20.
HBV is highly infectious and may be transmitted in various ways; such as sharing a toothbrush or razor, or getting a tattoo or piercing (NHS Website). Before a prosecution is brought, there must be sufficient evidence that Emma infected Declan and Robert infected Rachael (CPS Guidance on Intentional or Reckless Sexual Transmission of Infection). The facts suggest multiple partners but do not specify Rachael and Declan’s sexual history in the months between the encounter and their diagnosis. Proceeding with the assumption that the prosecution have sufficient evidence, the Actus Reus and Mens Rea elements of the offence should be considered.
To be liable for a Section 20 offence, the defendant will have unlawfully and maliciously inflicted GBH. To amount to GBH there must be a ‘really serious harm’ (DPP v Smith 1961). The majority of case law has focused on the transmission of HIV, and it is generally accepted that it amounts to GBH. However, there is debate as to whether the law extends to other sexually transmitted diseases (‘STDs’).
In the decision of R v Golding (2014) the Court of Appeal recognised that genital herpes could amount to GBH, theoretically extending the law to other STDs like HBV (Evans 2016; Weait 2005). Prior to this, there is only one known conviction for HBV transmission, secured by a guilty verdict (Mohanty 2009). As Golding reiterated, the question of ‘really serious harm’ is ultimately for the jury; hence, there is no comprehensive list of ‘serious’ diseases. The finding of serious harm in Golding was attributed to the claimant’s lack of prior sexual history, her very painful symptoms and the fact it was incurable. Although similarities can be drawn to Declan’s case in that HBV is incurable, without further information on sexual history or symptoms it is difficult to speculate how a jury would conclude.
If the jury finds this case amounts to really serious harm, they must then be certain that Emma acted maliciously. Malicious means subjective recklessness (R v Cunningham 1957), with the addition of foresight of some harm (R v Mowatt 1968). To establish recklessness the defendant must be aware of their status and that they are infectious to others, with understanding of how the infection spreads (Law Commission, Reforming Offences Against the Person 2015). Emma contends that she did not know she was infected. Following the decision of R v Adaye (2004), Emma’s knowledge may be inferred because she was aware of the diagnosis of Robert, whom she has had sexual intercourse with (CPS Guidance). It may be concluded that she has deliberately closed her mind by not undergoing a test herself and therefore still has the relevant Mens Rea (Law Commission 2015).
Emma bears the evidentiary burden to raise evidence in her defence. Although the sexual intercourse was consensual, the general position is that consent is not a defence for the more serious non-fatal offences (R v Donovan 1934). As outlined in Dica and reiterated by Lord Judge CJ in R v Konzani (2005), informed consent can provide a defence for Section 20; however, since there was no conversation between Emma and Declan it would be extremely difficult for the defence counsel to formulate an argument on that defence.
On the facts Rachael has suffered chronic Hepatitis B, which requires lifelong treatment to prevent serious complications such as liver damage. It is therefore very likely that the jury will find her infection was ‘really serious harm’. Robert also knew of his diagnosis. Although proving that a defendant had understanding of how the infection spreads can be difficult in practice, Robert’s offer to wear a condom and his understanding of the HBV vaccine may in itself suggest that he is aware of how HBV is transmitted (R v Brown 1994; Weait 2005) and that he may be infectious to Rachael. Finally, it is irrelevant whether Robert foreseen that Rachael would contract a chronic condition of HBV, the foresight that she could contract even a minor case is sufficient to meet the threshold of recklessness (R v Savage 1991).
Robert may argue that he had honest belief that Rachael consented to the risk of contracting HBV. Although informed consent does not always mean the defendant must disclose their condition (CPS Guidance), it was held in Konzani that concealment of condition does not correspond with honest belief in consent, because the complainant cannot predict deception. Rachael made Robert aware she was taking preventative measures against unintended pregnancy and against HIV, but this does not suggest she was willingly consenting to the particular risk of infection of HBV (Konzani). On the very specific facts of this case (Dica, Judge LJ), it could be further argued Rachael had greater right to believe she would be informed of specific infections because of the requirement for members of the club to undergo regular testing.
There are a lot of ambiguous facts to be applied to what is often an even more ambiguous area of law. On the facts at hand, it seems likely that Robert will be convicted, but Emma, despite her inferred knowledge of her status, may escape liability because of Declan’s lesser symptoms. If either are convicted under Section 20 for the reckless transmission of disease, they could receive a maximum sentence of 5 years imprisonment.
(b) Examine the Law
As can be seen by the above problem scenario the application of the law regulating transmission of disease can be ambiguous, hence why it is highly controversial and frequently debated. Although a paternalistic approach to harm incurred through sex is not beyond the scope of the criminal law (Rigby 2014), punishment in this area is marked by unfairness through selective enforcement, stigmatisation and an overzealous focus on HIV transmission. For some critics (e.g. Weait), the removal of this area of law is the only sensible conclusion.
Frustration towards the spread of disease has turned people to the ‘draconian instrument’ of the criminal law (Brown et al 2009), which has proven inadequate to deal with such a sensitive and complex topic. When considering the harm principle (Mill), utilising the criminal law to prosecute the spread of diseases can be justified; but one cannot ignore the fact that the people who take risks associated with sex are engaging in normal behaviour and are not ‘evil-doers’ (Weait 2007). As such, there has been an ultimate failure to draw a line between culpability for spreading diseases and acceptable assumptions of risk. The UK is not alone in its failure to address the issue of disease transmission, many jurisdictions similarly criminalise only if it falls within the definition of an existing offence (Webber 2012).
The current law is imprecise, and possibly overly broad (Lowbury and Kinghorn 2006), with the ability to use the law in an arbitrary and capricious manner to extend or limit to any disease. Early examples of criminalisation include leprosy (Tayman 2006) but recently this extension does not materialise in practice. Instead, there is an unexplained contradiction made between STDs and non-STDs, and even between the different STDs (Golding). Currently, the question of what diseases are prosecutable is not answered.
The law appears limited to STDs, but it is unclear whether it even extends far beyond HIV. Laird (2016) argues that it is not justifiable to limit criminalisation to sexual circumstances simply because of the associated feelings of moral disgust. Further, he finds the argument that evidential difficulty of proving causation is fickle, when, as demonstrated by the above problem question, similar issues can arise in cases involving STDs. Recently the question of criminalising the spread of coronavirus has been raised. It is known that one woman was sentenced for a coronavirus related assault (CPS 2020); but when reviewing previous highly infectious diseases such as Polio and influenza, which only seen an advance in measures such as social distancing, vaccinations and isolation (Clarkson 2010), it would be difficult to see how coronavirus differs. Which begs the question why should STDs be an exception when a public health approach can be made there too?
Without expressly limiting to STDs or extending to all diseases, the law is clearly problematic (Pickering and Francis 2012). The implied limitation has stigmatised STDs (Lowbury and Kinghorn), discouraged testing, (Pickering and Francis) and led to confusion. Thus, the common law approach has become stagnant (Laird) and it is clear an introduction of precise legislation is required. Although the singling out of STDs is not a favourable approach (Brown et al 2009), if it is to continue, placing statutory footing will ensure the required clarity of the law (Weait 2005), providing at least one solution to a host of problems.