To Be Ill or to Kill: The Criminality of Contagion

DOI10.1350/jcla.2013.77.3.840
Published date01 June 2013
Date01 June 2013
COMMENT
To Be Ill or to Kill: The Criminality of
Contagion
George R. Mawhinney*
Keywords Transmission; Illness; Criminal liability; STI; Bodily harm
Illness is by def‌inition detrimental. To what extent varies enormously
depending on the illness in question, the sufferer and today what
treatment is available. The purpose of this comment is to consider f‌irstly
illness as harm to the person, and then proceed to ask what criminal
liability might presently exist for transmission of illnesses. Liability for
transmission of STIs, most notably HIV—but recently for the f‌irst time
herpes—will provide the springboard for considering whether contagion
of other diseases and illnesses, from glandular fever to the common cold
may be criminal, and in what circumstances. It will argue that the
attention to STIs and even HIV alone is the only aspect of the current law
as prosecuted that risks discriminating, and that in today’s risk society
where harm prevention is top of the agenda, those contagious with
illness are under a responsibility to minimise the potential for infecting
others and consequent harm.
In R v Burstow1the House of Lords conf‌irmed that psychiatric harm
could constitute bodily harm for the purposes of the Offences Against
the Person Act 1861 (OAPA 1861), and grievous bodily harm if serious
enough. Moreover, the term ‘inf‌lict’ essentially meant cause with re-
gards to s. 20 of the same Act. As Simester and Sullivan recognise, ‘the
effect of Burstow is to enlarge signif‌icantly the kinds of setback to
personal well-being that fall within the section, and consequentially, the
kinds of conduct coming within the scope of the offence’.2If psychiatric
harm can constitute bodily harm, then the deleterious effect on the
health of a person’s body from a disease or illness falls well within
the notion of bodily harm. R v Dica3conf‌irmed this expectation by, for
the f‌irst time reported in an English court since the reign of Victoria,
holding a defendant criminally liable for transmitting an STI, namely the
HIV virus, under the OAPA 1861.
However, much criticism has been made of the conviction and
punishment of individuals who knew themselves to be infected with
HIV, who recklessly had unprotected sex with another person, thereby
transmitting the ultimately fatal condition. I will use an examination of
* Graduate Teaching Assistant, Faculty of Law, Oxford University; DPhil in Law
Candidate, Oriel College, Oxford; e-mail: george.mawhinney@oriel.ox.ac.uk. I
would like to thank my supervisor Professor Andrew Ashworth for his thoughts
and advice on an earlier draft. Any f‌laws are solely mine.
2 A. Simester, G. R. Sullivan, J. R. Spencer and G. Virgo, Simester and Sullivan’s
Criminal Law: Theory and Doctrine, 4th edn (Hart: Oxford, 2010) 439.
202 The Journal of Criminal Law (2013) 77 JCL 202–214
doi:10.1350/jcla.2013.77.3.840

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