Sherry-Ann McGregor, Contributor

Mcgregor

In most cases where persons become infected with sexually transmitted infections (STIs), neither party may have had prior knowledge that one was infected. However, there are some situations where one party has unprotected sexual intercourse knowing he/she has been diagnosed with an STI and deliberately hides it. Is this a criminal offence? Can the offending party be liable to conviction for inflicting grievous bodily harm?

One of the most significant English cases in which this question arose, dates back to the late 19th century - R v Clarence. Clarence knew that he was suffering from gonorrhea, but had sexual intercourse with his wife without telling her. She became infected, and he was charged for causing grievous bodily harm and assault occasioning actual bodily harm.

Consensual intercourse

While not suggesting that Clarence intended to infect his wife, the prosecution contended that if the wife knew of the risk of infection she would not have had consensual sexual intercourse.

He was convicted on both counts, but his conviction was overturned on appeal. The court ruled that Clarence had not committed an offence against his wife.

The judges who decided to quash the conviction were swayed by the fact that, at that time, a husband could not be indicted for rape of his wife because she irrevocably consented to sexual intercourse with him. For this reason, there was no assault. They also said that for grievous harm to be inflicted, the violent action must create an immediate result (such as a blow which causes a cut). So, the delay between the act of intercourse and the onset of the infection meant that no grievous bodily harm was inflicted.

The judgment in Clarence is no longer good law, because a man may be convicted of raping his wife. Therefore, it can no longer be said that a woman impliedly consents to the risk of infection by consenting to unprotected sexual intercourse. In fact, the English Court of Appeal decision in the case of R v Dica makes this clear.

Charged

In that case, Dica knew that he was HIV-positive. He had consensual unprotected sexual intercourse with two women, both of whom became infected with the disease. He was charged and tried on two counts of inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act. The allegation was that Dica was reckless as whether the complainants might become infected with the disease and that had they known of his condition they would not have consented to sexual intercourse.

Although Dica's conviction was overturned by the court of Appeal and a re-trial was ordered, the court's ruling that a person who knew that he or she was suffering from a serious sexual disease recklessly transmitted it to another through consensual sexual intercourse he or she could be guilty of inflicting grievous bodily harm.

Sherry-Ann McGregor is a partner and mediator in the law firm of Nunes, Scholefield, DeLeon & Co. Send feedback and comments to lawsofeve@yahoo.com.