Informed Consent and the Transmission of Sexual Disease: Dadson Revivified
| Author | Alan Reed,Simon Cooper |
| DOI | 10.1350/jcla.2007.71.5.461 |
| Date | 01 October 2007 |
| Published date | 01 October 2007 |
| Subject Matter | Article |
Informed Consent and the
Transmission of Sexual Disease:
Dadson Revivified
Simon Cooper*and Alan Reed†
Abstract This article examines the impact of the decisions in R vDica
(2004) and R vKonzani (2005) on the extent of the defence of consent. As
well as analysing the impact of the decisions on the extent of the defence
where a defendant faces criminal liability for the transmission of sexual
disease, it also considers and examines the wider issue of whether the
presence or absence of consent forms part of the actus reus of the relevant
assault offence or whether it is a separate and independent element that
stands outside of the conduct component of the offence. It is argued that
recent developments have given insufficient consideration to accepted
doctrine and revived much criticised principles by focusing on unknown
circumstances of justification rather than the defendant’s state of knowl-
edge and mind.
Consent as a defence
The liability of a defendant for the transmission of sexual disease1has
attracted considerable attention as a result of Rv Dica2and Rv Konzani.3
These decisions have raised some interesting issues concerned with the
defence of consent.
First, in dealing with the specific issues that arise in the cases, the
Court of Appeal has also touched upon one of the cornerstones of
general criminal liability. It has always been a matter of some debate and
disagreement as to whether or not the presence or absence of consent
forms part of the actus reus of the relevant assault offence or whether it
is a separate and independent element that stands outside of the conduct
component of the offence. This may be a matter without any great
practical significance but it has nonetheless stimulated debate on an
interesting academic question of law and reflects some deeply em-
bedded philosophical differences. If ‘absence of consent’ is regarded as
an ingredient of the conduct element of the offence then, if the assault
is consented to, a vital element is missing and there is no legal wrong of
any kind. If, however, consent is seen as a defence falling outside of the
* Senior Lecturer in Law, Salford University; e-mail: S.Cooper@salford.ac.uk.
† Professor of Law, Sunderland University; e-mail: alan.reed@sunderland.ac.uk.
1 See generally S. Ryan, ‘Reckless Transmission of HIV: Knowledge and Culpability’
[2006] Crim LR 981; M. Davies, ‘R v Dica: Lessons in Practising Unsafe Sex’ (2004)
68 JCL 498; M. Weait, ‘Knowledge, Consent and the Transmission of HIV’ (2004)
154 NLJ 826; M. Weait, ‘Knowledge, Autonomy and Consent: R. v. Konzani’ [2005]
Crim LR 763.
2 [2004] EWCA Crim 1103, [2004] QB 1257.
3 [2005] EWCA Crim 706, [2005] 2 Cr App R 14.
461
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