HIV, Trust and the Criminal Law
| Date | 01 August 2011 |
| DOI | 10.1350/jcla.2011.75.4.718 |
| Published date | 01 August 2011 |
| Subject Matter | Article |
HIV, Trust and the Criminal
Law
James Slater*
Abstract This article explores the legitimacy of criminalising non-
disclosure of HIV-positive status to sexual partners. Its principal aim is to
propose a new offence that criminalises such non-disclosure when it
constitutes a breach of trust. In defending the proposed offence, the article
argues that the criminal law has a legitimate function in penalising breach
of trust when the breach causes both personal and social harm. The article
also explores whether the existing offences of s. 20 of the Offences Against
the Person Act 1861 and rape (s. 1 of the Sexual Offences Act 2003) are
suited to criminalising non-disclosure, and concludes that they are not.
The article additionally considers the arguments against the criminalisa-
tion of non-disclosure advanced by various commentators and argues that
its proposed offence avoids the concerns expressed. The article concludes
that the proposed offence is both a morally justified and practically real-
istic way of criminalising non-disclosure of HIV-positive status.
Keywords HIV; Disclosure; Criminalisation; Trust
This article explores the legitimacy of criminalising non-disclosure of
HIV-positive status to sexual partners. Its principal aim is to propose a
new offence that criminalises such non-disclosure when it constitutes a
breach of trust. In order to justify the creation of such an offence, this
article will do three things: first, it will show how non-disclosure cannot
be legitimately criminalised within the context of existing offences;
secondly, it will set out a theoretical approach to criminalisation that
justifies the proposed offence of non-disclosure; thirdly, it will address
the practical and moral concerns raised by the criminalisation of non-
disclosure, and will show how the proposed offence overcomes those
concerns.
The criminal law has addressed the issue of non-disclosure of HIV-
positive status to sexual partners in two contexts: rape (s. 1 of the Sexual
Offences Act 2003) and s. 20 of the Offences Against the Person Act
1861 (s. 20). As a result, a significant aspect of the debate on non-
disclosure has been concerned with the feasibility and desirability of
integrating such behaviour into the structure of these offences.1Current
* BA(Hons) Sussex, LLM (Harvard), PhD (Birmingham), Senior Lecturer in Law,
University of Buckingham; e-mail: james.slater@buckingham.ac.uk.
I am indebted to Marc Stauch, Professor Susan Edwards and Rebecca Williams
for their comments on earlier drafts of this article. The usual caveats apply.
1 See, e.g., P. Alldridge, ‘Sex, Lies and the Criminal Law’ (1993) 44 Northern Ireland
Legal Quarterly 250; S. H. Bronitt, ‘Spreading Disease and the Criminal Law’ [1994]
Crim LR 21; D. Ormerod, ‘Criminalising HIV Transmission—Still No Effective
Solutions’ (2001) 30(2) Common Law World Review 135; D. Warburton, ‘A Critical
Review of English Law in Respect of Criminalising Blameworthy Behaviour by
HIV+ Individuals’ (2004) 68 JCL 55; M. Weait, ‘Criminal Law and the Sexual
Transmission of HIV: Rv Dica’ (2005) 68 MLR 121; A. Pedain, ‘HIV and Responsible
Sexual Behaviour’ (2005) 64 CLJ 540; S. Ryan, ‘Reckless Transmission of HIV:
Knowledge and Culpability’ [2006] Crim LR 981; S. Ryan, ‘Risk-Taking,
309The Journal of Criminal Law (2011) 75 JCL 309–335
doi:10.1350/jcla.2011.75.4.718
law has rejected criminalisation in the context of rape but has incorpor-
ated it under s. 20. I will argue below that the offence of rape is indeed
not suited to criminalising non-disclosure. I will begin, however, with an
explanation of why the criminal law has fallen into error in imposing
such liability under s. 20. It should be noted that the rejection of the
criminalisation of non-disclosure within existing offences paves the way
for my proposal for a bespoke offence.
The current law: liability under s. 20
The Court of Appeal held in R v Konzanithat a defendant is guilty of s. 20
if she infects the complainant with HIV whilst aware of the risk of so
doing, and the complainant is ignorant of the defendant’s HIV-positive
status.2The court considered infection with the HIV virus as grievous
bodily harm. As to whether the complainant consents to the risk of
infection, a consent that would prevent liability, the court held that even
though the complainant may consent to the general risk of contracting
a venereal disease when engaging in unprotected sexual intercourse,
she does not consent to the specificrisk of contracting HIV that is present
when the defendant is HIV positive.
Liability under s. 20 is problematic for a number of moral, practical
and conceptual reasons. Some of these apply to all attempts to crim-
inalise behaviour associated with non-disclosure of HIV status, and will
be addressed below during the analysis of the merits of my proposed
offence. My aim at this point is to outline three problems pertaining
exclusively to s. 20, specifically its actus reus, that I believe are fatal to its
use as a way of criminalising the failure to disclose HIV-positive status.
The first two problems flow from the fact that s. 20 is a choate crime.
The first of these problems is practical in nature, concerning the need
under s. 20 to prove that the defendant infected the complainant. The
problem here is that the state of science means ascertaining the proven-
ance of infection is ambiguous, thereby making the discharge of the
burden of proof frequently impossible.3The second problem flowing
from the choate nature of s. 20 is strategic: the requirement for infection
sits poorly with what should be the objective of the criminal law where
Recklessness and HIV Transmission: Accommodating the Reality of Sexual
Transmission of HIV Within a Justifiable Approach to Criminal Liability’ (2007) 28
Liverpool Law Review 215; L. Cherkassky, ‘Being Informed: The Complexities of
Knowledge, Deception and Consent when Transmitting HIV’ (2010) 74 JCL 242.
2Rv Konzani [2005] EWCA Crim 706, [2005] 2 Cr App R 14.
3 See, e.g., D. Pillay, A. Rambaut, A. M. Geretti and A. J. L. Brown, ‘HIV
Phylogenetics’ (2007) British Medical Journal 460. See also M. Weait, Intimacy and
Responsibility: The Criminalisation of HIV Transmission (Routledge-Cavendish: Oxford,
2007) at 100–7. In R v Dica [2004] EWCA Crim 1103, [2004] QB 1257 (who was
eventually convicted of s. 20 on retrial) and Rv Konzani [2005] EWCA Crim 706,
[2005] 2 Cr App R 14, the problem of provenance was overcome because the
defendants never disputed the fact that they were the cause of the infection. And it
is clear that the burden is not insurmountable since there may be circumstantial
evidence, e.g. the victim’s sexual history, that proves the accused is the source of
the victim’s infection: see Warburton’s discussion of the Scottish case of Stephen
Kelly, unreported (Warburton, above n. 1 at 68–9). But even this case may have
posed difficulties: see V. Tadros, ‘Recklessness, Consent and the Transmission of
HIV’ (2001) 5 Edinburgh Law Review 371.
The Journal of Criminal Law
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