Did the Individual Consent to the Risk of Harm? A Comparative Jurisdictional Analysis of Consent in Cases of Sexual Transmission/Exposure to HIV
| Published date | 01 February 2018 |
| Date | 01 February 2018 |
| DOI | http://doi.org/10.1177/0022018317753033 |
| Subject Matter | Articles |
Article
Did the Individual Consent to the
Risk of Harm? A Comparative
Jurisdictional Analysis of Consent
in Cases of Sexual Transmission/
Exposure to HIV
David Hughes
Senior Lecturer in Law, Teesside University, UK
Abstract
This article considers the necessary ingredients for an individual to consent to running the risk
of the HIV virus being transmitted through high-risk unprotected sexual intercourse. In order
to achieve this aim, an assessment of what should equate to a fully informed consent is eval-
uated. The article will provide a comparative jurisdictional analysis of the consent requirement
in three particularised jurisdictions: England, Canada and the USA. A comparison of relational
judicial precepts will follow the discussion of extant law in each country. It will be established
that few jurisdictions fully consider the requirements of a fully informed consent. The final part
of the article will suggest a bespoke new legislative framework that will account for the cir-
cumstances that are necessary for an individual to provide a fully informed consent to the risk
of acquiring the virus.
Keywords
HIV, criminal, consent, comparative law, England
Introduction
The criminalisation of the sexual transmission of HIV is still fertile ground for academic extirpation.
There have been many academic comments on the subject, but very little exploration of the parameters
of a fully informed consent.
1
The Law Commission has recently broached the sexual transmission of
disease, but little attention was paid to the awareness of the complainant when consenting to unprotected
Corresponding author:
David Hughes, Senior Lecturer in Law, Teesside University, UK.
E-mail: d.hughes@tees.ac.uk
1. For example see: Matthew Weait, ‘Criminal Law and the Sexual Transmission of HIV: RvDica’ (2005) 68 Modern Law
Review 121; Lisa Cherkassky, ‘Being Informed: The Complexities of Knowledge, Deception and Consent when Transmitting
The Journal of Criminal Law
2018, Vol. 82(1) 76–105
ªThe Author(s) 2018
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DOI: 10.1177/0022018317753033
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intercourse with an HIVþindividual.
2
It is evident that there is no true clarity on what ought to equate to
a fully informed consent, and this is in need of clarification.
In order to address this question, this article focuses upon the parameters of a fully informed consent
and surveys three particularised countries. The current conceptualisation of consent is deficient in the
majority of compared jurisdictions. Generally, the complainant is not afforded the opportunity to make
a fully informed decision, as the basic premise asserts that the defence is fully operational once a
complainant becomes ‘aware’ of the defendant’s sero-status.
3
The disclosing of one’s sero-status does
not signify that the complainant is attentive to the risk of the virus being transmitted, and this can be
consider deficient.
The first section of this article will pr ovide an effectiv e definition of co nsent, within the c ontext of
HIV transmission/exposure, where factual and normative consent are considered. It will be demon-
strated that both of these elements are necessary for there to be an informed consent. It is also essential
to outline the parameters of a fully informed consent to be able proceed to evaluating the effectiveness
or deficiency within the various legislative frameworks, and judicial precepts of the jurisdictions
within this analysis.
The second section will set out the applic able law in Englan d relational to con sent and the trans -
mission/exposure of HIV. The current position is that the consent of the complainant may be a defence
that can be put to the fact-finder for deliberation.
4
It will be demonstrated that the extant law does not
provide any guidance, and that there has been no real consideration of normative consent. The
subsequent part of the chapter considers the Canadian position where it will be demonstrated that
consent can be a defence in these cases.
5
However, the decisions that emanate from this jurisdiction
have not explored the parameters of an effective consent. The position, like England, is that there may
not be a fully informed consent on all occasions, and disclosure of one’s sero-status is deemed
sufficient for exculpation purposes.
TheAmericanpositiononconsentwillthenbeconsidered. This will highlight the divergent
approaches to consent within the HIV state-specific legislative frameworks. There are states that allow
consent,
6
those that require disclosure
7
and those where there is no expressly stipulated provision on
disclosure or consent.
8
It will be shown that the majority of states do not take into account that the
complainant ‘ought’ to be consenting to running the risk of infection. There are, however, states that
have enacted legislation to accommodate normative consent, and thereby allow a fully informed consent.
The penultimate part of this work will prov ide the comparative analysis, and this iden tifies the
similarities and differences within each designated jurisdiction. The comparison is divided into three
distinct approaches: basic disclosure, quasi-enhanced disclosure and enhanced disclosure. This termi-
nology has never been fully considered and provides the framework for the proposed legislation. It is
argued that in the majority of juris dictions only consider factu al consent and that there is no true
consideration of the significance of normative consent. Finally, the culmination of the chapter will
provide an optimal model for a statutory footing that facilitates consent as a defence. This relies upon
elements of Ohio’s statutory provision, ensuring that an effective consent will be attained on all
occasions. This bespoke legislative framework will provide clarity.
HIV’ (2010) 74 Journal of Criminal Law 242; Samantha Ryan, ‘Disclosure and HIV Transmission’ (2015) 79 Journal of
Criminal Law 395.
2. Law Commission, Reform of the Offences Against the Person (No. 361, 2015)
3. RvDica [2004] EWCA Crim 1103, 3 All ER 593; RvCuerrier [1998] 2 SCR 371; Ark Code Ann § 5-14-123 (2017); Cal
Health & Safety Code § 12029 (2016).
4. RvDica [2004] EWCA Crim 1103.
5. RvCuerrier, above n.3.
6. 720 Ill. Comp. Stat. § 5/12-5.01; Mo. Rev. Stat. § 191.677 (2016).
7. Ark. Code Ann. § 5-14-123 (2017); Cal. Health & Safety Code § 120291 (2017); Ohio Rev. Code Ann. § 2903.11(2016).
8. Wash. Rev. Code § 9A.36.011.
Hughes 77
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