Disclosure and HIV Transmission
| Date | 01 December 2015 |
| DOI | 10.1177/0022018315614444 |
| Published date | 01 December 2015 |
| Author | Samantha Ryan |
| Subject Matter | Articles |
The Journal of Criminal Law
2015, Vol. 79(6) 395–410
Disclosure and HIV
ª The Author(s) 2015
Reprints and permissions:
Transmission
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0022018315614444
clj.sagepub.com
Samantha Ryan
Newcastle Law School, Newcastle University, UK
Abstract
This paper examines the various approaches to disclosure of HIV infected status identified by
the Law Commission in its Scoping Consultation Paper on Reform of Offences against the
Person. It argues against the imposition of a general duty to disclose in all circumstances, and
further suggests that a requirement for disclosure cannot be justified when there is a low risk of
transmission. It suggests that the better approach to disclosure is to be found by combining the
remaining two Law Commission proposals. This would mean that whether a person was
justified in exposing another to the risk of HIV infection without disclosing their HIV positive
status would be a matter for the jury and a key factor relevant to the jury’s consideration in this
regard would be the level of risk of transmission involved.
Keywords
HIV transmission, disclosure, duty, criminal liability, significant risk, justifiable non-disclosure
Introduction: Background and the Scoping Paper
The issue of bringing disease transmission, whether through sexual intercourse or otherwise, within the
scope of non-fatal offences against the person had previously been considered by the Law Commission
in its 1993 report, Legislating the Criminal Code: Offences against the Person and General Principles.1
In that report the Law Commission concluded that disease transmission was simply another way of caus-
ing injury and should be included within the remit of offences against the person.2 The Law Commis-
sion’s proposals referred to intentionally causing serious injury, recklessly causing serious injury or
intentionally or recklessly causing injury, with the transmission of disease potentially falling within all
three offences. The Home Office in its Consultation Paper Violence: Reforming the Offences against the
Person Act, 1861, suggested this was an inappropriate extension of the law and proposed that only
1. Law Com. No. 218.
2. Ibid. at paras 5.15, 5.17.
Corresponding author:
Samantha Ryan, Newcastle Law School, Newcastle University, 21–24 Windsor Terrace, NE1 7RU, UK.
E-mail: Samantha.Ryan@newcastle.ac.uk
396
The Journal of Criminal Law 79(6)
intentional transmission of disease should be criminalised.3 The draft Bill accompanying the Home
Office Consultation Paper accordingly provided that ‘injury’ did not include anything caused by disease,
except for the purposes of the offence of intentionally causing serious injury.4
However, two cases, Dica5 and Konzani,6 moved the law far beyond this position in relation to
criminal liability for the transmission of HIV (and it would seem other serious sexually transmitted
infections).7 It is now possible for the reckless sexual transmission of HIV to be prosecuted under s.
20 of the Offences Against the Person Act, 1861. It is in this new legal order that the Law Commis-
sion, in its Scoping Consultation Paper, Reform of Offences Against the Person, had to reconsider the
application of the law governing offences against the person to the transmission of disease and in
particular to the transmission of HIV and other sexual infections through consensual sexual inter-
course.8 The Law Commission considered adopting the scheme in the Draft Bill as originally pro-
posed. This would effectively reverse the decision in Dica and would accord with a sizeable body
of opinion which believes criminalisation is only ever justified in the case of intentional transmis-
sion.9 The Law Commission rejected this option on the grounds that it would leave an undesirable
gap in the law.10 A second, and it would seem preferred, possibility that was put forward was to mod-
ify the Draft Bill to reflect the current law so that transmission of disease would be an offence
whether caused intentionally or recklessly.11 The Law Commission recognised that such an approach
raises many concerns: it may discourage testing, discourage openness with doctors, encourage people
to assume their sexual partner is not infected in the absence of disclosure, lead to intrusive investi-
gations regarding past sexual history and reinforce stigma.12 Ultimately the Law Commission con-
tended that excluding disease from the definition of injury was not the answer to these concerns
and suggested that if it was deemed appropriate to exclude the transmission of disease by consensual
sexual intercourse then this could be done by way of a specific exemption.13
Having set the terrain for the inclusion of disease transmission within the offences against the person,
the Law Commission came to the issue of disclosure. It recognised that in order to properly address the
issue of liability for disease transmission, particularly in the context of sexual transmission of disease, a
clear position regarding disclosure is required. The Law Commission identified three possible
approaches to disclosure: (1) D should be bound to disclose facts indicating a risk of infection only if
the risk is significant; (2) D should be bound to disclose facts indicating a risk of infection in all circum-
stances; or (3) whether D was justified in exposing V to that risk without disclosure should be a question
for the jury.14 Before considering these approaches to disclosure, it is worth setting out the current posi-
tion in English law regarding disclosure and criminal liability for HIV transmission.
3. Home Office CP (1998) at paras 3.16, 3.18 and 3.19.
4. Draft Bill (1998) Clause 15.
5. [2004] QB 1257.
6. [2005] 2 Cr App R 14.
7. See Golding [2014] EWCA Crim 889 a case involving the transmission of genital herpes.
8. Law Commission, Reform of Offences against the Person: A Scoping Consultation Paper No 217 (2014) (hereinafter the
‘Scoping Paper’).
9. See generally M. Weait, Intimacy and Responsibility: The Criminalisation of HIV transmission (Routledge-Cavendish:
Abingdon, 2007); R. Elliot, Criminal Law, Public Health and HIV Transmission: A Policy Options Paper, June 2002 from
the Joint United Nations Programme on HIV/AIDS; UNAIDS, UNAIDS Policy Brief: Criminalisation of HIV transmission
(UNAIDS: Geneva, 2008); C. Dodd et al., ‘Grievous Harm? Use of the Offences Against the Person Act 1861 for Sexual
Transmission of HIV’. Briefing Paper. Sigma Research 2005.
10. Above n. 8 at para. 6.68.
11. Ibid. at para. 6.69 and 6.70. This is seen as ‘the safer course’.
12. Ibid. at para. 6.78.
13. Ibid. at para. 6.79.
14. Ibid. at para. 6.98.
Ryan
397
Current Law on HIV Transmission and Disclosure
In the case law to date there has been no substantive analysis or argument regarding whether there should
be a legally recognised duty of disclosure. Instead, disclosure has been discussed somewhat obliquely; in
the context of whether consent can afford a defence to a charge of reckless transmission, and how non-
disclosure relates to a defendant’s ability to claim an honest belief in consent. Although never explicitly
stated in either Dica or Konzani, it seems clear that there is, as yet, no recognised legal duty to disclose
one’s HIV status to one’s sexual partner in England and Wales. Yet it is submitted that the law has come
very close to imposing such an obligation by allowing for consent or an honest belief in consent to oper-
ate as a defence in cases of non-disclosure in very limited circumstances. In Dica the defendant, knowing
that he was HIV positive, had unprotected sex with two women, both of whom subsequently contracted
the infection. Having ruled out the possibility of a rape charge, the ultimate issue for decision was
whether it was possible for the complainants’ consent to the risk of infection to provide a defence to the
s. 20 charge of maliciously inflicting grievous bodily harm.15 The court, per Judge LJ, accepted that
whilst consent could not operate as a defence to the deliberate infliction of HIV, consent could operate
as a defence where the complainants were willing to run the risk of infection.16 It was recognised that the
taking of risks, whether related to disease transmission or unintended pregnancy, had always been a fea-
ture of consensual adult sexual relations and that neither society nor the law had sought to intervene and
criminalise such behaviour in the past.17 This level and degree of interference with personal autonomy, if
it was to occur, was ultimately a matter for Parliament and not the courts.18
Having decided that consent could provide a defence, the court had to then consider whether there
could be consent to the risk of disease transmission in circumstances where the defendant had not dis-
closed his infection to his sexual partner. Judge LJ stated that if the defendant concealed the truth about
his condition and kept his partners in ignorance of it, there was no reason for his sexual partners to think
they were running a risk of infection and they were therefore not consenting to that risk.19 This seems to
suggest that disclosure of HIV status must be made before consent can provide a defence. However, by
recognising that ‘the ultimate question is not knowledge, but consent’, the court appeared to accept that
in certain circumstances the defence of consent might apply, notwithstanding the accused’s failure to
disclose his condition.20 Such an approach seems highly sensible. It is possible for individuals to be
aware of the risk of HIV transmission without...
To continue reading
Request your trial