Copyright © 1996 David Ormerod and Michael Gunn.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
*Our thanks to Dr Keith Neal of the Department of Public Health and Epidemiology, and to Professor Herb Sewell and Dr William L Irving of the Department of Clinical Laboratory Sciences, University of Nottingham for their clarification on a number of issues relating to the medical aspects of the transmission of HIV. Thanks are also due to T K Baxter for her research assistance.
This article explores the issues arising when a person, knowing that he or she is anti-HIV positive, proceeds to engage in intimate sexual behaviour with another, and asks whether he or she is liable to criminal prosecution. It considers arguments for and against criminalisation. In the light of the Government's refusal to legislate in this area, the article considers the possible sanctions under existing criminal law, providing very detailed analysis of sections 23 and 24 of the Offences Against the Person Act 1861. It reviews and counters possible problems with the use of these sections and the defences available, especially consent, and concludes that they could be used successfully to prosecute this type of behaviour. Finally, consideration is given to proposed law reform and its effect on the criminality of the behaviour.
- 1. Introduction.
- 2. New Legislation?
- 3. Which Charges Have Been Considered.
- 4. Sections 23 and 24.
- (1)The actus reus of the offences
- (a) "Administering".
- (b) "A poison, destructive or other noxious thing".
- (c) Proving the administration even if the partner does not contract HIV.
- (d) Life endangerment for the offence under section 23.
- (2) The mens rea
- (a) The unaware defendant.
- (b) The aware defendant.
- (c) Mens rea as to life endangerment for section 23?
- (d) Intention to injure, aggrieve or annoy for section 24.
- (3) A defence: consent
- (a) The partner is not aware that the defendant is HIV positive.
- (b) The partner is aware that the defendant is HIV positive.
- 5. The Effect of Reform
- The Law Commission's Proposals in relation to injury.
- The Law Commission's Proposals in relation to consent.
One recent English case gave rise to considerable newspaper comment: the case of the now deceased Roy Cornes (Smith 1991; Bronnitt 1994; Alldridge 1993; Holland 1994; Harris 1993). Mr Cornes contracted HIV from an infected blood product which he received as part of the treatment of his haemophilia. He was aware of his HIV status from 1985, but claimed that he first learned of the risks involved two years later. It was alleged that Mr Cornes had infected a number of women in the Birmingham area. One of the women died at the age of twenty. A different woman went on to have his anti-HIV positive baby. There were calls for the man to be prosecuted, but the "Crown Prosecution Service and the West Midlands police...suggested they were powerless to act against the man...."(The Guardian June 23,1992).
The question as to whether cases such as this give rise to criminal charges is one which "academics have argued ad nauseam" (Brazier 1992). Nevertheless, it is our contention that insufficient consideration has been given to the possible criminal charges under sections 23 and 24 of the Offences Against the Person Act 1861.
We accept that there are real concerns when arguing about the criminalisation of sexual behaviour. Of necessity it interferes in what is usually a very private activity. In recognising these concerns, we seek to address only a limited issue, but one which might have wider implications. We will be considering a person's liability under the Offences Against the Person Act 1861 and an objection that might well be raised is that we are resorting to offences of violence to deal with a matter related to sexual activity. Indeed, one of the major objections which Lord Mustill had to the prosecution of people engaged in sado-masochistic behaviour was the inappropriate use of offences of violence to deal with what was essentially a private, sexual matter. This is echoed by the Law Commission in its 1995 Consultation Paper (Law Com CP No 139, p 145). We would argue that the type of case which we have in mind does not fall foul of such an objection, because of the consequences it produces and the frequency of those consequences, since the potential defendant typically wishes to infect as many people as possible. Of course, there might be liability for transmission of HIV or other diseases or viruses by other methods of transmission, most obviously by injection, falling within the same provisions which we consider and so, in fact, the topic is not necessarily limited to sexual activity.
However, we must accept that, for some, the fact that transmission occurs during sexual activity is sufficient to remove it from the attention of the criminal law. We are indeed concerned with what is apparently consensual sexual activity. Some would argue that the criminal law should have no role to play when individuals take risks about infection as a consequence of sexual activity. It is certainly difficult to believe that people are unaware of the risks of infection as a consequence of a sexual liaison, particularly casual sex and so it is possible to suggest that all involved should be regarded as taking the risk of the consequences that might develop. In so far as it goes, we do not necessarily have any difficulty with such an argument which presumes informed risk-taking. The scenario we have in mind is different. We envisage the case where one person is deliberately withholding information from the other with a desire to infect that other. We regard this as a very different case, deserving of criminal liability.
We accept that there is a real risk that our arguments for criminal liability might be used to pursue prosecutions in a discriminatory fashion. In particular, there is a risk that, proportionately, homosexual men (or women) would be prosecuted more frequently than some other categories of potential defendants. If that did happen, we take the view that such usage of the criminal law would be both unacceptable and contrary to the United Kingdom's international obligations (eg articles 8, 10 and 14 of the European Convention on Human Rights). It might be anticipated that the gay and lesbian community might fear prosecutions as a form of "gay bashing"; but we would categorically resist the use of our arguments to support such discrimination.
The situation we have in mind is one where the defendant, as we will call him or her for these purposes, may be liable under sections 23 or 24 when engaging in intimate sexual activity, which we shall call sexual intercourse, and knowing that he or she has HIV which may be passed to the partner. We do wish to make clear that the people involved in sexual intercourse may be any combination of female and male, (Mastro et al 1994) since in all intimate sexual contact the transmission of body fluids, that is semen and/or vaginal fluids, is possible, although the virus is less easily transmitted via the mouth (Kingsley et al 1987, at p 348). We will be concerned with administration offences, but it is important to note that it is misleading to consider whether one person (male) is the actor and the other is passive (female) (cf. Law Com CP No 139, para 6.20). Both parties, whatever gender, may be active, and either party may be administering bodily fluids to the other. In passing we should note that the sexual offences do indeed perpetuate the myth of the man as having sexual intercourse and the woman permitting it. An "active woman" would not thereby avoid conviction for a sexual offence, since her action would involve an indecent assault.
The defendant in this hypothetical situation is anti-HIV positive. Therefore, it is impossible to say that the virus will not be found in all blood, semen, or vaginal fluid samples. This does not mean that the partner will necessarily develop infection with HIV after sexual activity. Even if the partner does develop HIV infection, he or she may remain asymptomatic for many years, although the evidence suggests that most people who have the virus will eventually develop AIDS (Hessol et al 1988; Mayer 1990; Phillips et al 1994). AIDS is a fatal syndrome, in that the resultant lack of immunity will mean that some form of infection or disease will eventually lead to the death of a person with AIDS.
Little needs to be said to introduce HIV and AIDS: AIDS was first discovered in 1980 in five homosexual males in Los Angeles. (Mueller; McGuigan 1986; Burdt and Caldwell 1988). Human immunodeficiency virus (HIV) "is present in all of the bodily fluids of an infected person. However it is only present in large enough quantities to be infectious in blood, semen and vaginal fluids" (Terrence Higgins Trust 1990, at p 7). Some early research had indicated that the HIV "has been found in, but is not always present, in the blood, semen, vaginal secretions, saliva, breast milk, tears, urine, serum, cerebrospinal fluid and lung fluid of HIV infected persons" (Stauter 1989; Friedland & Klein 1987). It is still not known how many people who are HIV positive will go on to show symptoms of AIDS as currently defined (Terrence Higgins Trust 1990; Keenlyside and Adler 1993). "Antibodies generally become detectable between two and four months after exposure. About 95% of infected individuals will register antibody positive within six months of exposure to HIV. Antibody tests taken during the "window" period between exposure and seroconversion (the time when antibodies to HIV become detectable in the blood) may yield negative results, even though a person is actually infected"(Tierney 1992, at p 481). The degree to which this person can infect others during this period is unknown. Studies indicate that the median survival time for people with AIDS is 4 years after an AIDS diagnosis but that a few people have lived with AIDS for as long as 8 years.
Cases such as that involving Roy Cornes raise many difficult issues. As a result of this particular case two issues were publicly discussed: whether criminal charges could be brought and whether Parliament ought to create a specific offence to deal with wilful transmission. Before dealing with the central point of the article, it is necessary to consider the proposals for reform and the comments on the criminal charges currently available.
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In Australia, four States have passed legislation which criminalises the transmission of HIV: Queensland, (Queensland Health Act Amendment Act (No. 3), 1988, s.48.); New South Wales, (NSW Public Health (Proclaimed Diseases) Amendment Act 1985, s 3; The Crimes (Injuries) Amendment Act 1990 No. 101); South Australia, (S Austl Pub & Envt'l Health Act, 1987, s 37(1)); Victoria (Vict Health (General Amendment) Act 1988, s 120(1)). The position in New Zealand is less clear (Rickett 1990). Discussion of the problem in Scotland has centred on the dictum of Lord Emslie, Lord Justice-General, in the case of Khaliq v HM Advocate (1983) SCCR 483 at p 492, a case concerned with the sale of glue-sniffing kits:
"[t]here is ample authority for the view that the wilful and reckless administration of a dangerous substance to another causing injury or death is a crime at common law in Scotland" (Laurie 1991).
The specific calls for legislation in this country came from all quarters: Dr Patrick Dixon, medical director of ACET (AIDS Care, Education and Training) was reported in the Daily Express in June 1992 as saying "I also think it is likely that the Government will want to consider the proposals by the Law Commission to extend the Offences Against the Person Act to include intentional or reckless infliction of illness or disease" and indeed, Dr Brian Mawhinney, Health Minister, suggested in The Guardian (June 24, 1992) that the Government would be looking at ways of bringing in legislation aimed at making the deliberate spreading of HIV a specific offence. There were also calls for legislation from many MPs, especially those with constituencies in the Birmingham area, for example, Andrew Hargreave, a Birmingham MP, calling for action from the Government. It was reported in the Birmingham Evening Mail (June 16, 1992) that Mr Cornes himself believed that the deliberate transmission of HIV should be a criminal offence. Mr Allen, father of the woman who died as a result of her infection in the Birmingham case, called for an urgent change in the law.
Arguments against criminalisation were voiced with equal force. The main arguments against appear to be: that the legislation would be intrusive into an area of intimate and private behaviour; that the legislation would not act as a deterrent; that the legislation would be counter-productive in that it would discourage people from being tested; that the legislation may be used in a discriminatory manner - ie anti gay. Some of those who expressed concern included Andrew Puddephat, general secretary of Liberty, who stated that
"Laws based on individual cases are generally bad laws. You cannot fight the spread of HIV and AIDS through the law, you can only fight it through public education."(The Guardian, June 24,1992)
Equally clear were the opinions Of Professor Brazier who wrote of her concern as to the "message" which criminalisation would "send to the community" and Mr Partridge, Chief Executive of the Terrence Higgins Trust, stressed that "we don't need a change in the law. We need a change in behaviour" (Birmingham Post, June 27,1992). On the other hand, may it be by criminalising an activity that society aims to change behaviour? (Hart 1958). "Realistically, criminal law is likely to be of minimal significance in influencing conduct: other factors such as fear of infection, are likely to be of greater effect in influencing sexual practices" (Holland 1994, at p 287).
It was obvious that the chances of legislation finding its way onto the statute book were not great. Despite the public demand to make wilful transmission of the virus a criminal offence, it was felt that such a law would be almost unenforceable. This practical difficulty stems from the necessity for an aggrieved party to prove the transmission took place as a result of a particular sexual act with a particular individual. The Home Secretary is reported in the Daily Mail (June 24, 1992) as stating that he was "not instantly persuaded that the criminal law is the right way to help, and someone would have to come up with a very good case before [he] was persuaded that a new sex offence should be created." Predictably, the Government decided in June 1992 not to introduce laws to prosecute such offenders. Virginia Bottomley stated the main ground for this decision:
"We need to encourage those who are at risk to come forward, not drive them underground by a coercive approach." (Birmingham Evening Mail, June 26, 1992)
The Government's refusal to legislate in this area was criticised by several MPs: Clare Short thought that Virginia Bottomley was "negligent in not extending [the law] to include those infected with HIV in very exceptional cases where people are irresponsibly passing on the infection"(Birmingham Evening Mail, June 26, 1992); the Liberal Democrat's Health Spokeswoman, Liz Lyn said "Legislation might at least protect some people from being wilfully infected by a person carrying the HIV virus"(Birmingham Evening Mail, June 17, 1992).
It remains the case that no specific legislative provisions have been enacted in response to the problem under discussion.
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"It would be extremely difficult for the Crown Prosecution Service to bring a successful criminal action" and that "the case presented the prosecution with a moral, legal and philosophical nightmare"(Birmingham Post, June 22, 1992).
Those commentators who suggested that criminal charges might be brought in the circumstances have focused their attention on the offences of grievous bodily harm (Dyer 1992; Hall 1992; Holland 1994) and/or of homicide (Hill 1992; Child 1992). It is worth considering these charges briefly, beginning with murder. Since the partner will not die within a year and a day, no prosecution for murder or manslaughter is possible. Although there have been recent proposals for reform of this aspect of the offence, it is at present an insurmountable hurdle to a prosecution (Law Com CP No 136). Even if the substantive criminal law problems are surmounted, there are also problems with the law of evidence. Given that the argument "it was one of her other men" may be an argument in any case, the defending counsel may wish to question the victim as to his or her previous sexual experience. This could give rise to numerous difficulties for the rules of evidence. Even if he or she did die so suddenly, the prosecution would have to prove the causal connection between sexual intercourse, getting HIV, developing AIDS and then dying. This might not always be easy.
Attempted murder is a remote possibility, but necessitates not only that the person with HIV intends that the partner shall die, but also that the sexual act is an act more than merely preparatory to the death of the partner. Both might well be difficult to establish, perhaps the latter more than the former. Certainly a prosecution would face enormous obstacles (Bronitt 1994, at p 22). The mens rea which would have to be proved is that of intention (See Criminal Attempts Act 1981 s 1). This would be almost impossible to prove in all but the most clear-cut revenge-type cases where the defendant has transmission as his purpose or at least foresees that it is virtually certain that the disease will be transmitted. "Having sex is a highly indirect modus operandi for the person whose purpose is to kill"(Field and Sullivan 1987, at p 47). Punishing for an attempt, even if it were possible on the facts, would serve no purpose in deterrence terms since the majority of transmissions would be reckless rather than intentional.
Similarly the Offences Against the Person Act offences appear unsatisfactory in that no injury or, in the language of the 1861 Act, no "bodily harm" may occur at all or at least not for a considerable length of time. Prosecutions for offences involving the causing or inflicting of bodily harm become impossible or exceptionally difficult. Nevertheless, the New Zealand Court of Appeal in Mwai  3 NZLR 149 felt able to uphold a conviction for causing grievous bodily harm contrary to section 188(2) of the Crimes Act 1961 when Mwai had infected two women knowing that he was infected with the HIV virus. The court took the view both that HIV infection was "grievous bodily harm" and that the women's HIV status could be caused by Mwai even though it may not have been the only cause as it was a substantial cause. In A's case the only cause could have been sexual intercourse with Mwai. "It was the virus present in his semen that infected her" (Mwai, at p 155).
In the Canadian case of R v Mercer (1993) 84 CCC 3d 41, in the Newfoundland Court of Appeal, the accused pleaded guilty to two charges of criminal negligence for transmitting the human immunodeficiency virus and thereby causing bodily harm contrary to s 221 of the Criminal Code, and breach of an undertaking. Having been identified as a partner of a person who had tested HIV positive, the accused was contacted by the medical officer of health and advised that he should assume that he was a carrier of the virus and that he should not engage in unprotected sexual activity. The accused also supplied a blood sample which later confirmed that he was anti-HIV positive. The accused had established a relationship with a 16-year-old girl and he began to engage in unprotected sexual intercourse with her without advising her of his health condition and, in fact, he told the girl that there was no need for him to use a condom when she asked him whether he should. In a subsequent meeting with the medical officer of health, the accused was asked to identify any of his sexual partners but he failed to identify this girl. In the ensuing months, the accused continued to have unprotected sexual intercourse with the girl and she later was diagnosed as being [anti-]HIV positive. A different Canadian judge McDermid J, in deciding another Canadian HIV infection case, Ssenyonga (1993) 81 CCC 3d 257 took the more traditional view, remarking that "The law of assault is too blunt an instrument to excise AIDS from the body politic." Ssenyonga involved the transmission through sexual activity. One charge of common nuisance was rejected at the preliminary stage where the judge said "Certainly the complainants are members of the public but I cannot accept that they, from a legal perspective, represent the community as a whole. The offence of common nuisance is, in my view, not appropriate based on the evidence presented on this preliminary inquiry." In another Canadian case, Thornton (1993) 82 CCC 3d 530, the accused, who donated blood knowing that he was HIV infected, was convicted on a charge under s 180 [of the Canadian Criminal Code] "common nuisance endangering the life and health of the public". The New Zealand Court of Appeal in Mwai was also prepared to uphold a criminal nuisance conviction. No similar offence exists in English law.
In this country, the option of prosecution under sexual offence charges was also discussed. Professor Leigh was reported as stating "If a woman didn't know her lover had AIDS, it could remove her consent to sex" (The Sun, June 24, 1992). One practitioner who was quite adamant that charges might be brought was Michael Arnheim, barrister (The Guardian, June 24, 1992). He also relied upon sexual offences suggesting that the three possible charges could be assault, indecent assault, and the offence under Sexual Offences Act 1956 s 3 of procuring sexual intercourse by false pretences. The assault and indecent assault charges raise the difficult question of consent, which will be dealt with more fully below. It is submitted that the charge under section 3 is probably inappropriate. If the defendant has infection with HIV and fails to inform his partner, then he may have deceived her as to an element of the act which is fundamental in nature, but it is, arguably, not by that deception that he procures the intercourse.
By far the most detailed treatment of the possible charges is provided by Professor KJM Smith (Smith 1991). Professor Smith highlights the difficulties with many of the charges under the 1861 Act, though his consideration of the offence under section 23 of the 1861 Act is brief. He comments that "the willingness of some courts to construe the breadth of these administering offences in a liberal and flexible fashion suggests that their possible theoretical relevance to AIDS (and even venereal disease) cases may not be entirely fanciful, assuming the presence of the appropriate mens rea" (at p 316). He later goes on to state that "[e]ndangering life or injuring another by administering a noxious thing may well, as suggested, provide a prosecution vehicle, but the strained or awkward use entailed makes it an unrealistic proposition for any but the most desperate or vindictive of prosecutors" (at p 319).
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Of the offences which exist, the most suitable are those to be found in the Offences Against the Person Act 1861, ss 23 and 24 (In addition to ss 23 and 24, there are relevant offences in ss 22 and 29 of that Act and in the Sexual Offences Act 1956 s 4 but these are not pursued in detail here). Section 23 provides that:
"Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of an offence, and being convicted thereof shall be liable ... [to a term of imprisonment not exceeding ten years]...."
Section 24, is the less serious offence, and provides that a person who
"unlawfully and maliciously administers to or causes to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve or annoy, shall be guilty of an offence, and being convicted thereof shall be liable ... [to a term of imprisonment not exceeding five years]...."
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The term "administration" was defined by the Court of Appeal in R v Gillard 1988 87 Cr App R 189. The court, approving the approach of Mr Recorder Walsh QC in R v Dones  Crim LR 682, rejected the idea that its definition could be left to the jury as a matter of the ordinary English language, a decision warmly to be applauded. The case was concerned with an appeal against a conviction under section 24, but is relevant, on the definition of "administration", to both offences. The defendant sprayed the contents of a CS gas spray can at V. It was argued that the gas had not been administered because the defendant had not brought it into direct contact with V. McNeill J, giving the judgment of the court, referred to the Oxford English Dictionary in considering the meaning of "administration" and found that the definitions proffered were "too many and too diverse" to be of any assistance (Ibid). He was not persuaded that the two words appearing in section 24, "administer" and "take", were to be regarded as either synonymous or conjunctive. He thereby rejected the basis upon which Mr Recorder Walsh QC directed the jury in R v Dones which we consider below. McNeill J, stated (at p 194) that the proper construction was to include "conduct which not being the application of direct force to the victim nevertheless brings the noxious thing into contact with the body." The court also noted that, "there is no necessity when the word 'administer' is used to postulate any form of entry into the victim's body, whether through any orifice or absorption...." Bronitt comments that "in cases where a person transmits a disease through coughing, sneezing or sexual intercourse, it would be difficult to describe these modes of transmission as "administering" without distorting the ordinary and plain meaning of the words in the statute" (Bronnitt 1994, at p 25). With respect, unless the word were to be interpreted in the narrow manner discussed in the text above, it is difficult to see how the courts' interpretation of the word administering could fail to bring these activities within the section.
If this were the only decision on the meaning of administration, it would be relatively straightforward to state that the exchange of bodily fluids during sexual intercourse leading to the transmission of HIV would bring the virus into contact with the body of the partner and so there would be an administration of HIV. Further, even if the substance did have to enter the body in some way, this is true of the body fluids exchanged in the course of sexual intercourse.
Would Gillard be applied in this way in a trial of our defendant? Account must be taken of arguments which might be proffered to suggest that what we have described does not amount to an "administration". First, it might be suggested that "administration" demands the use of some form of instrument. There is nothing in existing case law which would support such a view. In R v Harley, (1830) 4 C & P 369 the earlier case of R v Cadman (1825) 1 Mood CC 114 was explained on the basis that the judges had "held that it was no administering unless the poison was taken into the stomach." The poison was secreted in some cakes which were left to be taken by the victim. Despite this point seeming to draw a similarity between the concepts of "administration" and "taking", it is submitted that the general approach is a correct one, the administration of a noxious substance does not demand the use of an instrument. Criminal lawyers of all generations would be undoubtedly surprised at any other conclusion.
Secondly, and more realistically, it might be argued that administration has some sort of quasi-medical connotation which would exclude the activity under consideration being administration but would include, for example, the use of hypodermic syringes and the offering of food laced with poison. The argument would have to be based upon the direction, which is reported more fully in the course of the judgment of the Court of Appeal in R v Gillard, of Mr Recorder Walsh QC in R v Dones where he ruled that administration had a quasi-medical sense. In that case the defendant had squirted a solution of 7.7% ammonia from a plastic lemon at a man involved in a fight and was, on this interpretation of administration, found not guilty of an offence contrary to section 24. It followed from the Recorder's conclusion that administration in section 24 (and therefore also section 23) did not cover such activity as throwing something over another, because administering and taking were to be considered as similar concepts. The basis for the conclusion arrived at by Mr Recorder Walsh has been swept away by the Court of Appeal in Gillard where, as indicated above, the court rejected the idea of the two terms being synonymous. However, does that still leave any value in the idea of the administration having to be in some sense, quasi-medical?
The approach of the Recorder appears not to have been wholly unacceptable to Professor JC Smith who, in his commentary, stated, "The opinion of the Recorder is very persuasive; but would not the football trainer who sprays a pain-killer on the injured player's leg properly be said to 'administer' it? The physical act is much the same as squirting the ammonia; but 'administer' is applied more naturally to an act done with a therapeutic purpose than to an assault." We would respectfully agree that the trainer administers the pain-killer, but could not agree that the concept of "administer" must have some "therapeutic" sense. Section 23 criminalises the application of poisons, destructive and noxious things. They were not being therapeutically applied, or if they were the administrator would clearly have a defence because the administration would not be unlawful. Requiring "administer" to have some "therapeutic" sense cannot, therefore, be of any assistance. This does not entirely rid us of the problem of "administer" having a "quasi-medical" sense which is not synonymous with a "therapeutic" sense. None of the older cases, R v Cadman (1825) 1 Mood CC 114; R v Harley (1830) 4 C & P 369; R v Walford (1899) 34 L Jo 116; R v Wilson (1856) 7 Cox CC 190; R v Dale (1852) 6 Cox CC 14, are of any assistance because they run the concepts of "administration" and "taking" together. More recently, in Flack v Baldry  1 WLR 393 the House of Lords held electricity to be a noxious thing in view of its stunning effect on its victims. If a requirement that "administration" had to have a "quasi-medical" sense were to be introduced, great care would have to be taken not to reduce the existing scope of the offences. For example, the administering of an electric shock to the victim could be an administration without being at all medical. The definition of "quasi-medical" may present as many problems as it solves. For example, "administer" in a quasi- medical sense cannot be limited to oral or intravenous administrations, since the transmission by an act such as shaking hands would then not be covered. Furthermore, a quasi-medical definition of "administration" does not necessarily limit significantly the meaning of administration if the definition of that phrase in the Medicines Act 1968 s 130(9) is considered:
"'administer' means administer to a human being or an animal, whether orally, by injection, or by introduction into the body in any other way, or by external application, whether by direct contact with the body or not; and any reference in this Act to administering a substance or article is a reference to administering it either in its existing state or after it has been dissolved or dispersed in, or diluted or mixed with, some other substance used as a vehicle."
This definition is clearly wide enough to include the act of sexual intercourse.
Is there a conceptual basis upon which the quasi-medical sense has an appeal? The transfer of body fluids would undoubtedly be an administration in some instances, for example a blood transfusion, and there would still be an administration if that blood were contaminated, it being therefore a noxious thing. Infecting a person with smallpox by shaking their hand, thereby transferring the infection, would be the administration of a noxious substance. However, it might be suggested that if the transfer is brought about by sexual intercourse, there would be no administration. It is submitted that such a distinction would not only be contrary to what appears to be a generally applicable definition propounded recently by the Court of Appeal in Gillard 1988 87 Cr App R 189 but also would be an unfortunate development inappropriately narrowing the scope of an offence which ought to be able to deal with the infection of other people with diseases and poisons.
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"Noxious" was defined by the Court of Appeal in R v Marcus  2 All ER 833. Tudor Evans J, giving the judgment of the court, stated that
"for the purposes of section 24 [and therefore also of section 23] the concept of noxious thing involves not only the quality or nature of the substance, but also the quantity administered or sought to be administered" (at p 837)
Tudor Evans J made quite clear that quantity was very important:
"we consider that the words 'a noxious thing' mean that the jury has to consider the very thing which on the facts is administered or sought to be administered both as to quality and as to quantity. The jury has to consider the evidence of what was administered or attempted to be administered both in quality and quantity and to decide as a question of fact and degree in all the circumstances whether that thing was noxious. A substance which may have been harmless in small quantities may yet be noxious in the quantity administered...."(at p 837)
The first problem to be faced in our hypothetical situation is: what is the thing which is to be alleged to be noxious? It is either the virus itself or the body fluids within which the virus is contained. The discussion of "administers" above can apply to either option. We presume that since the virus is inextricably linked with the body fluids that it is the latter, contaminated by the former, which should be alleged to have been administered. The medical evidence is highly technical, but supportive of our presumption:
"[R]eports confirm the earlier findings that HIV is present in the semen of infected males. Assayed by virus infectivity, 30%, 16% and 9% of semen samples were positive for HIV.... Assayed by PCR 87% and 4% of samples were virus positive....This wide range in semen virus detection undoubtedly reflects assay techniques as well as variations in patient population" (Kiessling 1992).
Other research has shown that "HIV nucleic acid can be detected... in either the cell-free seminal fluid or non-spermatozoal mononuclear cells of 87% of semen samples, but not in the DNA of spermatozoa from HIV-infected men" (Mermin 1991).
The more important matter is to consider whether the body fluids so contaminated are a noxious thing. The decision in Marcus might be interpreted to mean that it is always necessary to consider the quantity of the thing administered to another. This would present at least two problems where the substance is body fluids contaminated with HIV which is administered to the partner. First, it will never be possible to prove how much of the virus was administered because viruses which have been transmitted cannot be measured in that way. Secondly, it might be presumed that the only way the quantity can be established is by assessing whether the other person also becomes anti-HIV positive. If he or she catches HIV, sufficient quantity was administered and so it can be stated the defendant's body fluids contained enough HIV to amount to a noxious thing. This raises a related problem of causation which is that in some cases it will be difficult for the prosecution to prove that the victim became HIV positive as a result of having sex with the defendant and not as a result of some other cause. However, the press have reported that recent medical developments have enabled scientists to identify "to a high degree of probability, the particular person who transmitted the disease" (Bronitt 1994, at p 22).
It is submitted that there is an alternative and proper approach to the decision in Marcus. It applies properly to circumstances where the thing in question is only noxious in large quantities, and therefore the decision must be limited to that type of case. Where the thing is noxious whatever the quantity, quantity should be irrelevant and all that the prosecution should be required to prove is that the defendant did administer the virus to the other. The passage quoted may properly be interpreted to agree with this approach. The fact that a thing may not be noxious in small quantities does not, as a matter of law, mean that any substance in small quantities, however harmful that substance may be, is necessarily not noxious.
Further, the court in Marcus accepted that as noxious must be of less importance than a poison or a destructive thing, it has a relatively weak meaning, as indicated by the definitions to be found in the Shorter Oxford English Dictionary, which includes the word "unwholesome". Indeed the court thought that the presence of the snail in Mrs Donoghue's glass of ginger beer (Donoghue v Stevenson  AC 562) would mean that the actus reus of the offence in section 24 would have been satisfied. It must, therefore, follow that body fluids contaminated by HIV, and the virus itself, are both a "noxious thing." Bronitt states that this is a difficulty because of the lack of clear authority on whether a virus is a "destructive or noxious thing" (Bronnitt 1994, at p 25).
In the Canadian case Ssenyonga (1992) 73 CCC 3d 216 (Preliminary Hearing); (1993) 81 CCC 3d 257 (Trial) the accused was charged "that he did administer to a female person, namely each of the complainants, a noxious thing, to wit: bodily fluids containing the human immunodeficiency virus, with the intent to endanger life, contrary to s 245 of the Criminal Code." For the purpose of the preliminary inquiry, counsel for the accused admitted that the semen of the accused who is infected with HIV would be a noxious thing. The court stated that
"[t]he evidence I have heard is that each of the complainants had intercourse with the accused a number of times. On most occasions, he did not wear a condom. On many occasions he ejaculated inside their vaginas. The expert medical evidence was that unprotected heterosexual intercourse can result in the transmission of HIV, and that the accused was instructed to use a condom because he was [anti-]HIV positive."
It is worth noting also that the court in Ssenyonga found it unnecessary to decide the issue as to what constituted an administration stating:
" Even if I were satisfied, based on the facts, that consensual intercourse is 'administration of a noxious thing', I must also be satisfied that there is sufficient evidence to put before a jury that such "administration" was committed with intent to endanger life or cause bodily harm....In the case before me, there is, in my view, no evidence that the accused could have foreseen the certainty or substantial certainty of infecting the complainants with HIV by having unprotected sex with them. From the evidence I have heard, I cannot infer subjective intent."
Of course, if "destructive" means not only something actually destructive, but also something potentially destructive, HIV is a destructive thing.
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"experimental inseminations are elective procedures in healthy, HIV-negative women. Prospective volunteers and institutional review panels contemplating such experiments should be fully aware that they carry a risk of HIV transmission" (Edlin 1993).
A recent study concluded that "the likelihood of a female seroconverting [a term meaning to develop antibodies against HIV] as a result of a single act of unprotected heterosexual intercourse with an infected male is about 1 in 500" (McGuire 1991, at p 97), while other research has suggested that a seroconversion rate of 7.2% is more accurate (Semprini 1993). It is difficult to give a precise figure and medical researchers have accepted that transmission rates of anywhere between 7% and 68% have been recorded (Krieger 1991).
But, if HIV is found to be a poison or noxious thing, it does not have to be proved that the other partner became anti-HIV positive in order for the offence to be made out. If a person is anti-HIV positive all samples of blood, semen and vaginal fluid contain the virus. Therefore, it only has to be shown that the defendant, who at the time was anti-HIV positive, had sex with him or her. It follows as a matter of science that the virus must have been administered to the other. There is no need to prove that the partner became anti-HIV positive and there is no need to be concerned with whether the other partner had contacts of some form from which he or she could have caught the virus.
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It is submitted, therefore, that the actus reus of the offences in ss 23 and 24 are committed by a person who has infection with HIV having sex with another person.
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Several legislative responses to the AIDS transmission problem have required that the defendant "know he or she has tested positive for HIV" (Arkansas Code 5-14- 123(b) (Cook 1992, at p 524). In the Canadian case of Ssenyonga, the judge at the preliminary hearing, was certainly of the opinion that knowledge of the HIV status "is a crucial difference which may alter the nature of the sexual act of unprotected sex."
To be sure of a conviction the prosecutor would have to be certain of the defendant's HIV status. The defendant would have to submit to a HIV test. This involves further difficulties of an ethical nature (Somerville 1991; McGuire 1991). This has already been required in at least one US case (Herman 1990, at pp 364 and 370). In America, the Presidential Commission on the Human Immunodeficiency Virus, which was established by President Reagan in 1987 and reported in 1988, recommended that rapists be tested for HIV and that their victims be informed of the results. Furthermore, the results of such a test would have to be made available for use at the defendant's trial. In the US this has given rise to potential Constitutional difficulties with respect to the fourth and fifth amendments guarantees (Cook 1992, at p 524). Requiring the defendant to undergo a HIV test may also have repercussions for the presumption of innocence. If the defendant is known to be anti-HIV positive, he may face prejudice from the jury on that ground alone (McGuire 1991, at p 111).
There is an argument that the person who is aware that he or she is in a high-risk group may have sufficient mens rea for the offences even if he or she does not know that they have the disease (Taitz 1989, at p 219; Laurie 1991, at p 316; Field and Sullivan 1987, at p 52). Although technically possible, this would require proof that they foresaw the risk of administering the virus. This would improperly punish those who did not know that they were transmitting anything other than their normal bodily fluids.
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The concept of "malice" was authoritatively considered by the Court of Criminal Appeal in R v Cunningham  2 QB 396. In considering the offence contrary to section 23, Byrne J, giving the judgment of the court, said at p 399:
"... in any statutory definition of a crime 'malice' must be taken not in the old value sense of 'wickedness' in general, but as requiring either (i) an actual intention to do the particular kind of harm which in fact was done, or (ii) recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it). It is neither limited to, nor does it indeed require, any ill-will towards the person injured."
It is, therefore, the case that the defendant in our hypothetical situation must actually foresee something. In accordance with the traditional approach to English law, mens rea in the sense given would be required in relation to every element of the actus reus. Thus the defendant must foresee: (a) an administration; (b) that the substance is noxious; and (c) that HIV will be transmitted.
There is no difficulty in a jury finding that the defendant has the requisite malice in relation to all of these factors. The defendant will know that, in the ordinary course of things, unprotected sexual intercourse will involve the transmission of bodily fluids, that is the administration of something. He or she does not have to realise that it would legally be described as an administration. He or she will know of the noxiousness of the substance if aware of his or her own condition. Finally, it will not be difficult to show that the defendant foresaw the risk of the transmission of the virus, since, as has been indicated, it is necessarily the case that in all instances the virus is transmitted, although the other does not necessarily contract it. Even if a defendant claimed that, because not all partners would contract infection with HIV, he or she thought that the virus would not always be transmitted, it would be difficult for him or her to avoid the jury arriving at the conclusion that he or she foresaw the risk of transmission nevertheless.
In Ssenyonga the judge at the preliminary hearing was not prepared to find that the administration "was committed with intent to endanger life or cause bodily harm" as required by the relevant Canadian legislation. Whilst recognising that the
"actor's foresight of the certainty or moral certainty of the consequence resulting from his conduct compels a conclusion that he, none the less, acted so as to produce it, then he decided to bring it about (albeit regretfully), in order to achieve his ultimate purpose."
The judge concluded that:
"In the case before me, there is, in my view, no evidence that the accused could have foreseen the certainty or substantial certainty of infecting the complainants with HIV by having unprotected sex with them. From the evidence I have heard, I cannot infer subjective intent."
As the mens rea requirements are peculiar to the specific offences, the decision has no effect upon the position under sections 23 or 24.
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Even if a court decides that the defendant in our instance must foresee the endangerment of life in addition to the other elements of the mens rea, there is no reason why a jury could not find that the defendant also foresaw that life would be endangered. It is unlikely to be the case that a person infected with HIV could honestly and reliably claim that he or she did not realise that if a person has infection with HIV, that he or she will not at some stage get AIDS (it is just possible that advisers might hedge this point slightly, nevertheless he or she will realise at least that there is a significant risk of contracting AIDS), and therefore realise that he or she will die (it is unlikely to be the case that anybody with HIV will not realise that, if they contract AIDS, it will eventually cause their death). In any case, the general level of knowledge of all people is that HIV and AIDS are life threatening. Should HIV actually cause grievous bodily harm, it will be possible to convict him or her of the section 18 offence, but, as already indicated, it may well be extremely difficult to prove that this instance of contact with an HIV source was the cause of the victim having contracted that virus (See Tulley v Corrie (1867) 10 Cox CC 640 per Mellor J, at p 641).
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It is submitted that the mens rea of the offences may, therefore, be satisfied.
AIDS is fatal and incurable. Any offence which punishes its transmission ought to be able to reflect the gravity of harm caused in the severity of the sentence imposed (Field and Sullivan 1987 at p 50). The offence under section 23 is capable of satisfying this requirement with its maximum sentence of ten years, and the maximum five years under section 24 is a not inconsiderable period.
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If the defence of consent applies to this offence, it will deprive the administration of the necessary unlawfulness. For the defence of consent to achieve such a result it must be established that the victim actually did consent, and that the defendant had an honest belief in the consent of the victim. But, first, what is it to which the partner is supposed to be consenting? The offence is concerned with the administration of a noxious thing, therefore, the consent must be to that administration (Bronitt 1994, at p25; Alldridge 1993, at p 258). Broadly, there are two different aspects to this problem which must be considered. The first is the instance where the partner is not aware of the defendant's condition, but does consent to sexual intercourse. The second is where the partner is aware of the defendant's condition, but nevertheless still consents to have sexual intercourse.
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When the nature and quality test is examined in detail, the argument is shown to be unconvincing. The types of instances when the judges in Clarence thought that there would be no mistake were not only those like the instant case, but also where the woman thought, wrongly, that she was married to the man, or where the woman was seduced in the expectation of marriage, or where the woman was a prostitute and thought she had been paid (Stephen J, at p 43). When these examples are considered, it will be noted that there is a significant difference between the facts of the case and the examples provided. The examples are all concerned with the morality of the sexual relationship, indeed that is explicitly stated by Stephen J (Ibid, at p 44). In all the examples sexual intercourse took place, but the woman was mistaken as to some aspect which would, if true, have made the sexual intercourse more acceptable to her. But the facts of the instant case are not about morals or acceptability, they are about health. We assert, as did Field J in the minority in Clarence (at p 59) that sexual intercourse with a diseased man is an act different in nature and quality from sex with an undiseased man. Sex with a man, for example, to whom a woman believes she is married is no different an act in nature or quality from sex with a man to whom she actually is married (Papadimitropoulous (1957) 98 CLR 249). The judges in Clarence would not be able to offer a counter argument, because their point is taken also on the basis of assertion (See assertions by Wills J at p 27 and Stephen J at p 44). If our point of view is accepted, the partner who believes that he or she is having sexual intercourse with a healthy person does not provide consent which prevents the defendant who in fact is anti- HIV positive being guilty of an offence contrary to section 23. R v Bennett (1866) 4 F & F 1105 and R v Sinclair (1867) 13 Cox CC 28 would both support this approach, but they were decided before Clarence.
A difficulty with this argument is its failure in the Canadian case of Ssenyonga (1993) 81 CCC 3d 257 The following evidence in relation to the accused was not disputed: (a) He already knew he was infected with HIV; (b) He knew of the risk of transmitting the virus to the complainants through unprotected sexual intercourse, ie, sexual intercourse without the use of a condom; (c) None of the complainants knew he was anti-HIV positive; (d) None of the complainants would have consented to have sexual intercourse with him had they known he was anti-HIV positive. There was evidence that after having sexual intercourse with the accused, each of the complainants tested positive for HIV.
The prosecution argued that "the English case of Clarence should not be followed....[on the basis that] the failure of a person who knows he is infected with HIV to disclose that fact before engaging in sexual intercourse constitutes fraud as to the quality of the act of sexual intercourse that will vitiate the consent of the complainant."
McDermid J, ruled that "fraud sufficient to vitiate consent must relate to the nature and quality of the act. In this case, the complainants were under absolutely no misapprehension as to the nature of the consenting to participate in acts of sexual intercourse with the accused. Nothing he said or did induced them to believe otherwise. Accordingly, on this branch of the Crown's argument, there is no evidence of fraud"(Ibid).
A further means of distinguishing Clarence is to ask to what it is the partner is supposed to be consenting? He or she may be consenting to sexual intercourse (subject to what has just been said), but is not consenting to the administration of a noxious substance. Of course by consenting to sexual intercourse, he or she is consenting to the transmission of body fluids, but not body fluids contaminated with HIV, nor to the administration of the virus itself.
In any case, we should be very careful in according the decision in Clarence too much significance in this debate. It is important to look carefully at the other arguments used to substantiate the quashing of the husband's conviction. The charges in that case, as already indicated, were of offences contrary to section 47 and section 20 of the 1861 Act. It is quite clear that some of the judges thought that these charges were inappropriate to deal with the conduct in question (Wills J, at pp 30 and 35 and Manisty J, at p 55.). This point has no relevance to the possibility of an offence contrary to either section 23 or 24 of the same Act being committed, indeed we would agree that the wrong charges were brought against Clarence. Some of the judges took the view that the common law, for example adaptation of the offence of public nuisance, (Stephen J at p 39.) should not be left to deal with the activity in question, but that Parliamentary action was necessary, if at all, to criminalise the sort of behaviour in question (Wills J, at p 33, Stephen J, at p 46, Hawkins J, at p 53 and Pollock B., at p 64). A simple answer to this problem is that had the judges given sufficient thought to sections 23 and 24, they would have realised that Parliament had provided the answer. Some judges were also concerned that conviction of the defendant would lead to hundreds of convictions (Wills J, at p 32, Stephen J, at p 38 and Hawkins J, at p 54). This is an irrelevant argument if there is an offence covering the activity in question. If the activity is criminal, as we argue, there is nothing necessarily wrong in there being hundreds of convictions. If the activity is that frequent, it is right that there should be convictions of people taking such advantage of their sexual partners. The truth of the matter is that the judges do not appear to have realised that Parliament had chosen to make criminal the administration of poisons, destructive and other noxious things, so that the person passing on smallpox to a friend or a child would be guilty of a crime which did not require improper extension of the concept of assault. Had that been realised then those judges who were of the view that Clarence should have been guilty of an offence would have been able to point out that he was prosecuted for the wrong offence.
Finally, it might credibly be argued that Clarence is a decision now over one hundred years old which reflects somewhat outmoded attitudes to sexuality, most clearly in the acceptance of the majority of the judges of the marital rape exemption, and, therefore, the case deserves to be re-examined. We accept that longevity of a case is sometimes a reason in itself for refusing to overrule it and, indeed, it is not necessary for the success of our argument that Clarence be overruled, provided the basis upon which it may be distinguished is accepted.
The Law Commission has resiled from a proposal that all fraud should vitiate consent (Law Com CP No 139, paras 6.15-6.18 and see Ormerod 1994). The Law Commission now proposes that fraud as to the nature and quality of the act or identity of the actor will nullify consent (Law Com CP No 139, para 6.18). It is, however, concerned about one particular case, that of "the case where a person agrees to allow another to have sexual intercourse with him or her after that other person has untruthfully said that he has been tested with HIV or other sexually transmitted diseases and that the findings were negative" (Law Com CP No 139, para 6.19). A question then arises whether the failure to disclose HIV status goes to the nature and quality of the act, because, as the Law Commission asserts, it has a "morally different" character when compared with the prostitute who is lead to believe, mistakenly, that she or he will be paid or the woman who submits "to a vaginal inspection by an impostor doctor" (Law Com CP No 139, paras 6.19 & 6.17). The distinguishing factor, as we see it, is the health risk involved as a consequence of the fraud, which, we have argued, should be sufficient to vitiate the consent. This is the sufficient moral distinguishing factor, which, we believe, should be identified by the Law Commission (Law Com CP No 139, para 6.19). We would argue that this principle applies to both an articulated and an unconscious assumption (Law Com CP No 139, para 6.29).
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Where the victim has consented in fact, and the substance is not fatal, it remains to be considered whether that consent is legally valid. The courts do not permit people to consent to activity which is contrary to the public interest. The transmission of HIV is life endangering, though not necessarily fatal, because not everyone having sexual intercourse with someone who is anti-HIV positive catches the virus themselves. It would seem possible that the courts would, therefore, decide that a person cannot consent to the transmission of the virus. In Attorney General's Reference (No 6 of 1980)  QB 715, the Court of Appeal decided that "it is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason." The court made clear that this approach was not meant to impugn the legality of "properly conducted sports and games, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc." There is some good reason for such activity, despite the bodily harm which it causes or may cause.
This approach was expressly approved by the Court of Appeal and the House of Lords in R v Brown  1 AC 212. In this case the House of Lords, by a bare majority, upheld the convictions of offences contrary to sections 47 and 20 of the Offences Against the Person Act 1861 of 15 homosexual sado- masochists who performed various acts upon each other, including whippings, beatings and acts of genital torture. All the acts were done with the full informed consent of each of the adult males involved and none resulted in permanent injury or even required medical treatment. The majority explained that
"the authorities...do not establish that consent is a defence to a charge under the Act of 1861. They do establish that the courts have accepted that consent is a defence to the infliction of bodily harm in the course of some lawful activities. The question is whether the defence should be extended to the infliction of bodily harm in the course of sado-masochistic encounters"(per Lord Templeman at p 234).
One reason given by Lord Templeman for denying the defence in such cases was the "obvious dangers of serious personal injury and blood infection" (at p 236 emphasis added). His Lordship went on to point out that two members of the group had died of AIDS and a third had contracted HIV, although it was not necessarily as a result of the practices of this group.
It is submitted that the transmission of HIV is more dangerous than such sado- masochistic behaviour, furthermore there is no apparent good reason at all why people should be permitted to transmit the virus, indeed it is arguable that all reasonable efforts should be made to prevent transmission, and that, therefore, consent to transmission of the virus is not legally valid. It is submitted, therefore, that the defendant who administers to his consenting and fully informed victim HIV would commit the offence under section 23. We consider this point further after looking at the need of the defendant to believe in the other's consent.
Where a defendant does not have the actual consent of the victim, but has an honest but mistaken belief in his or her consent, the defendant will, generally, escape conviction. This is not so in cases where the consent, if it had been present, would have been contrary to the public interest and therefore not legally valid. Thus, belief in the partner's consent to having sex with a person who is anti-HIV positive and making a mistake about the legal position will not avail, because it would be a mistake of criminal law, which is not relevant.
If the argument above is correct, the courts could convict in cases when both parties are consenting and both fully informed of the medical condition of one or both. This may well seem to be an outrageous proposition, but it does appear to follow. However, the object of the argument propounded in this paper has been to deal with the person deliberately trying to infect partners with the virus, for whatever motive. We still hold to the view that such people should be prosecuted. Unless a distinction can be drawn between loving couples and other relationships in a `public interest' debate, the conclusion seems to be that it would also put loving couples at the potential risk of prosecution (see discussion of defence above). We would point out that no prosecution is possible without the problem being reported to the police and, if reported, it is not appropriate for the Crown Prosecution Service to go ahead with a prosecution where such a prosecution would be against the public interest. Whilst the public interest is firmly in favour of keeping the spread of HIV in check, there is, in an individual case, the countervailing public interest of not improperly interfering in the intimate relationships of people, one or both of whom have sadly contracted infection with HIV.
The prosecution in Ssenyonga argued that "There is no good reason on moral grounds for permitting a person to have sexual intercourse without disclosing his HIV positive status. If an infected person chooses to engage in sexual activity, which he is under no duty to do, the privacy interest of the infected person should yield to the physical safety and autonomy of the partner." This was rejected by the trial judge McDermid J who found that the limitations on consensual harm were to control the direct or indirect application of force and that "[t]he law of assault is too blunt an instrument to excise AIDS from the body politic."
Where specific legislation has been enacted, it usually provides that there shall be a defence where the infected person has informed the "victim" of his or her condition and that "victim" has consented to the act of intimacy which may result in the transmission of infection" (See eg the Illinois Public Act 86-0897 D; Deutschmann 1990). Interestingly, the Florida statute Control of Sexually Transmissible Diseases Act 1986, provides a defence where the victim "has been informed of the transmission of the sexually transmissible disease and has consented to the sexual intercourse" (Waters 1990, at p 35).
It has been suggested by Deutschmann (1990, at p 34), that it should be a defence to show that a condom or presumably a "femidom" (a female condom) or "dental dam" (a latex barrier originally developed for use in dental surgery which is placed over the vulva thus making oral sex safer) was used during the sexual act by which the virus was transmitted. There is, in this case, no need to speak of defences in the true sense of the word. It seems obvious that the defendant who has used a condom or other form of protection will lack the necessary mens rea for the offence under either section 23 or section 24. Medical research has confirmed that "[w]orldwide, the predominant mode of human immunodeficiency virus (HIV) transmission is heterosexual intercourse [and that c]onsistent use of condoms for heterosexual intercourse is highly effective in preventing the transmission of HIV" (De Vincenzi 1994). Anne Johnson has commented that the results of work done on condoms and protection from HIV are
"important in three ways. First, they demonstrate that even among repeatedly counselled European couples known to be exposed to HIV, nearly half continued to have unprotected intercourse. Second, the results show that among couples who used condoms inconsistently, there remained a considerable risk of infection....Third, the data provides evidence of the protective effect of condoms in people known to be exposed to HIV. There was no seroconversion among the 124 couples who used condoms consistently." (Johnson 1994)
Despite this, it is arguable that taking precautions per se ought not to be sufficient defence unless the defendant has also informed his sexual partner of his condition (Field and Sullivan 1987, at p 53). Condoms and femidoms can split. It is arguable that the defendant who knows of his HIV status and does not disclose it to his partner but takes the precaution of using a condom is still a conscious risk taker and will still have the mens rea as required by Cunningham. This is not a very strong argument. The converse of this is that it has been suggested that there is a strong case to be made for ... not allowing informed consent to be a defence in the absence of precautions(Field and Sullivan 1987).
It has been suggested that there should be a special defence available for married couples (Deutschmann 1990, at p 34). A special defence in such cases would be wholly inconsistent with the policy underlying the recent decision of the House of Lords R v R, in which the husband's immunity from prosecution for rape of his wife was abolished. One proposal contains a defence for married persons who have disclosed the risk of infection (Robinson 1985, at p 101). The Queensland statute provides a defence for the spouse or "connubial" who knew of the accused's infection and voluntarily took the risk of being infected (Queens. Health Act Amendment Act (No 2), No 103, 1984 Queensl Stat 1195, 3(h), (i) (1984)).
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(1) A person is guilty of an offence if, knowing that the other does not consent to what is done, he intentionally or recklessly administers to or causes to be taken by another a substance which he knows to be capable of interfering substantially with the other's bodily functions.
(2) For the purposes of this section a substance capable of inducing unconsciousness or sleep is capable of interfering substantially with bodily functions.
The Law Commission explained in the 1993 Report that there had been almost "no opposition to the retention of such an offence...[but that it] nevertheless reconsidered the question whether it is necessary given that, in many serious cases, an offence under clauses 2 to 4 of the Criminal Law Bill will also be committed."
The Law Commission went on to state that:
"On careful consideration, our view remains that the balance of the arguments is in favour of retaining the clause. The administration without consent of substances capable of interfering substantially with bodily functions is irresponsible and potentially highly dangerous conduct, serious enough in itself to warrant criminal sanctions, notwithstanding that in many cases a more serious offence will also often be committed." (Ibid)
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"Injury or injuries which -
(1) cause serious distress, and
(2) involve the loss of a bodily member or organ or permanent bodily injury or permanent functional impairment, or serious or permanent disfigurement, or severe and prolonged pain, or serious impairment of mental health, or prolonged unconsciousness;
and in determining whether an effect is permanent, no account should be taken of the fact that it may be remediable by surgery. (Law Com CP No 139, para 4.51)
Serious disabling injury must include HIV, which means that it is something, the risk of which, a person cannot consent. This is a consequence which would have serious and unfortunate consequences for those engaged in relationships where each knows of the other's status, but the law should have no involvement. However, the Law Commission's proposals go further, because intentionally or recklessly causing a serious disabling injury would be an offence (Law Commission, 1995, para 4.48).
The full implications of these proposals are beyond the scope of this paper. However, issues related to our discussion include the effect of fraud, which we deal with above. Further, the Law Commission proposes that the "victim" who has consented to a serious disabling injury, or the risk of it, would be dealt with according to the ordinary rules of accessorial liability. The Law Commission appears to mean that, although secondary parties cannot normally be guilty where they are victims, where a "victim" positively seeks the commission of the principal offence, they should face criminal liability (Law Com CP No 139, para 1.22). This has very wide consequences and potentially criminalises any partner who engages in sexual activity knowing of his or partner's HIV status. This is potentially alarming.
The Law Commission proposes that there be an offence of procuring consent by deception (Law Com CP No 139, para 6.81). This would be a welcome addition to the criminal calendar, since its objectives would be consistent with the argument which we have propounded. Further, the Law Commission contemplates the possibility of imposing an "express duty to communicate information" (Law Com CP No 139, para 6.84). Were such an offence to be created it would enable conviction for failure to provide information about HIV status which has, for example, lead to conviction for criminal nuisance in New Zealand (see Mwai  3 NZLR 149). The extent of a duty to disclose would apply only to the creation of injury.
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