Being Informed: The Complexities of Knowledge, Deception and Consent When Transmitting HIV
| Author | Lisa Cherkassky |
| DOI | 10.1350/jcla.2010.74.3.636 |
| Published date | 01 June 2010 |
| Date | 01 June 2010 |
| Subject Matter | Article |
Being Informed: The
Complexities of Knowledge,
Deception and Consent when
Transmitting HIV
Lisa Cherkassky*
Abstract The offence of inflicting grievous bodily harm under s. 20 of the
Offences Against the Person Act 1861 has been confirmed as the most
appropriate ground for convicting a reckless transmission of the HIV virus
through sexual intercourse.1An informed consent from the victim, along
with a reasonable belief in that consent from the defendant, will now
suffice as a defence to such a charge.2However, it remains unclear how
and when the victim must be informed of the relevant circumstances in
order to provide consent to infected intercourse, and it is also undecided
whether the defendant himself must divulge his HIV status in order to
claim an honest belief in the victim’s consent.3Additionally, the fine line
of consensual activity drawn in R v Brown4appears to have been eroded by
recent HIV transmission cases.5This article outlines the development in
relation to s. 20 to include HIV offences; it aims to untangle the recent
authorities on knowledge, deception and consent in relation to both
victims and perpetrators in reckless HIV transmission cases and suggests a
way forward for the law in the shape of a new offence.
Keywords Sexual offences; HIV transmission; Intention; Informed
consent; Recklessness
The issue of informed consent in relation to sexual offences has been
discussed at length recently, highlighting the ambiguous nature of s. 74
of the Sexual Offences Act 2003. A defendant’s deceptive state of mind
during the act of intercourse calls into question whether the victim’s
consent to sexual intercourse is properly informed. What if, on the
occasion that consent to intercourse is present from both parties, one
* Lecturer in Law, Bradford University School of Management; e-mail:
L.Cherkassky@Bradford.ac.uk.
1R vDica [2004] QB 1257 at 1273, per Judge LJ. Subjective recklessness is
necessary for a s. 20 conviction, requiring the defendant to see that he may inflict
some bodily harm on the victim: see R vCunningham [1957] 2 QB 396 and R v
Mowatt [1968] 1 QB 421, affirmed by Lord Ackner in R v Savage and Parmenter
[1992] 1 AC 699 at 721.
2R vKonzani [2005] 2 Cr App R 198 at 208–9, per Judge LJ.
3 These quandaries arose from the decisions in R v Dica [2004] QB 1257 and R v
Konzani [2005] 2 Cr App R 14, both holding that knowledge leading to an
informed consent can come from any source, but if it is not from the defendant,
he cannot have an honest belief in that consent. See R v Dica [2004] QB 1257 at
1265–6 and R vKonzani [2005] 2 Cr App R 198 at 208–9.
4 [1994] 1 AC 212.
5 Lord Lane CJ in Attorney-General’s Reference (No.6 of 1980) [1981] 2 All ER 1057 at
1060 stated that consent is irrelevant if actual bodily harm is intended and/or
caused. This distinction was brought into disrepute somewhat by the decision in
R v Dica [2004] QB 1257 allowing ‘victims’ to consent to a s. 20 offence.
242 The Journal of Criminal Law (2010) 74 JCL 242–258
doi:10.1350/jcla.2010.74.3.636
party harbours a different ‘intention’ or ‘need’ to the other party, who is
deceived on this matter?6Could this vitiate consent? The answer in
relation to rape appears to be ‘no’, but the element of deception and the
phrase ‘informed consent’ both combine to cause particular difficulties
in HIV transmission cases, where the word ‘informed’ can constitute
many different actions, and where ‘deception’ does lead to prosecution
(albeit for grievous bodily harm).
This article will focus mainly on deception, knowledge and informed
consent in relation to the transmission of the HIV under s. 20 of the
Offences Against the Person Act 1861, but a discussion outlining the
recent debates on informed consent in the field of sexual offences will be
addressed. The recent theory suggesting that a mistake as to fact can
vitiate consent holds an interesting connection to deceptive HIV cases.
When is consent ‘informed’ in sexual offences?
Removing the specific issue of HIV transmission from the equation for
the moment, consenting to sex is not as simple as it sounds. The offence
of rape in the UK places an emphasis on consent rather than force,
which, as Bohlander points out, leads to the impression that rape in the
UK does not require force or threats, leading to various other options
when vitiating consent.7Section 74 of the 2003 Act states as follows:
For the purposes of this Part, a person consents if he agrees by choice, and
has the freedom and capacity to make that choice.
It is difficult to decipher what exactly Parliament meant by this simple
definition. The words ‘choice’ and ‘freedom’ clearly relate to the use of
force, and ‘capacity’ is a reference to a person’s sound mind capable of
providing consent. Elliott and De Than argue that the real issue behind
s. 74 is whether a person has the freedom and capacity to agree, because
when a person is consenting to something, he is effectively agreeing to
it; whether or not he had a choice really does not matter.8However,
‘freedom’ in s. 74 can also refer to the more contentious issue of
deception: we are not entirely ‘free’ to accept a ‘thing’ until we know
every relevant detail about that thing. Jonathan Herring was the first to
canvas this idea in detail in relation to rape. He put forward the follow-
ing provision:
If at the time of the sexual activity a person:
(i) is mistaken as to a fact; and
6 The most obvious example would be one person believing the intercourse to be a
sign of love and commitment, whereas the other person views the act as a one-
night stand with no further obligations.
7 Such as what we see today: misrepresentations and non-disclosure of facts. See
M. Bohlander, ‘Mistaken Consent to Sex, Political Correctness and Correct Policy’
(2007) 71 JCL 412.
8 C. Elliott and C. De Than, ‘The Case for a Rational Reconstruction of Consent in
Criminal Law’ (2007) 70 MLR 225 at 238–9, and see generally I. Dennis, ‘The
Sexual Offences Act’ [2004] Crim LR 79.
Complexities of Knowledge, Deception and Consent when Transmitting HIV
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