Should consent be a defence to the transmission of the HIV virus?

How should I start my ramblings today? Well in case you don’t know, Rambler is a law student and it may be high time he rambled on his lawyerings! I will therefore ramble a bit about consent as a defence in criminal law. Particularly consent to sexual intercourse with a human immunodeficiency virus (HIV) positive person! Is it a crime to pass the virus to a sexual partner?

What is crime? In brief I would say a crime is a conduct forbidden by the state to which punishment has been attached. A common example would be killing a human being. The state would punish such a conduct. Parliament passes laws forbidding crimes and prescribes punishments. Although the state does everything in its effort to name and crimilise bad conduct, there still comes some developing bad conducts which government is yet to crimilise. This is where I like the role of judges and lawyers to pin down such conducts and crimilise them. Such conduct not yet crimilised by the state is left to the courts to crimilise.

It is important to realise that to every crime there are generally defences to crimes. To illustrate the point I will go back to my example above of killing a human being. Imagine a doctor is sued for a patient who died due to a wound sustained on an operation table during surgery. The doctor may have a defence of consent – the patient consented to the operation.

The defence of consent may also apply in the context of contact sports, such as football, rugby, hockey, etc., players will be taken to impliedly consent to conduct which they could reasonably be regarded as having accepted by taking part in that particular sport. Of course consent is no defence where the injury is sustained outside the rules of the game, e.g. during an “off the ball” incident.

Now lets come down to sexual intercourse. In sexual offences such as rape it is often argued that the claimant consented to sex. Indeed in some cases consent has been successfully pleaded. There has been cases where it has been heard that 'a drunken consent is still a consent'! In another case “vigorous” sexual activity which caused death of the victim, consent was accepted by the courts as a defence!

What about consent to having sex with an HIV positive person? Dica and Konzani are the two leading cases on HIV in the English legal system. Mohammed Dica while HIV positive had had unprotected sexual intercourse on a number of occasions with two complainants, who had been willing to engage in sexual intercourse but were unaware of his condition at the time. Feston Konzani, a 28-year-old asylum seeker from Malawi living in Middlesbrough, while been informed that he was HIV positive, had had sexual relationships with the three complainants. He had not told any of them that he was HIV positive, and he had repeatedly had unprotected sexual intercourse with them, knowing that, by doing so, he might pass the infection on to them. Dica and Konzani wanted to rely on consent. All the same the courts refused to accept their defence and were convicted of inflicting grievous bodily harm to their victims. Since Dica and Konzani there have been several cases in the United Kingdom involving allegations of reckless disease transmission during sexual activity which the courts have punished. However if there is evidence that the defendant in fact infected the complainant, and was aware of the risk of transmission, it may be possible to raise the defence of consent. How sad? No one should be allowed by law to such unjustified consent to grievously body harm on their person.

Rambler looks back home and thinks of all those people who are and have knowingly or recklessly caused death through passing the HIV virus during sexual activity but never got punished by the law. Where parliament is preoccupied with other issues and failed to legislate against consent as a defence to passing the HIV virus, may our courts intervene to punish such behaviour. May the long arm of the law stretch out to those who intentionally or reckless transmit sexual diseases. May the victims be able to access the rare commodity called justice.

Rambler still mourns her lovely sister and her almost one year old son who died of AIDs after getting married to a man who was HIV positive but never told her that he was once married to a partner who died of AIDs until when they were all terminally sick.

Oh yes, the ramblings of rambler continue to be erratic.