Biological GBH: A Duty to Disclose?

The law is a force dictated by social persuasion: a change in society calls for the law to catch up accordingly. With advancements in medicine and an increased awareness of the risks surrounding sexual health, the Law Commission has been prompted to release a consultation paper considering the need to include transmission of infection under the category of non-fatal offences against the person; historically, there has been little case law establishing criminal liability as to the reckless, if not intentional, infliction of damage to another’s sexual health. Previously individuals were considered either reckless for having slept with an infected individual or perhaps even impliedly consenting to the risk of infection by engaging in the act at all. Thankfully there has been a dramatic shift in the way we view our sexual health, our society takes responsibility not only for our own individual status, but seeks to punish those who offend against us when they fail to manage theirs to a criminal degree.

Much like the fellow offences contained within the Offences Against the Persons Act 1861 (OAPA), liability can be found where one has acted either to intentionally infect or been reckless as to infection. Common law precedent can be seen in cases such as Dica and Konzani – the latter of which dealt with an instance of recklessly transmitting HIV under s.20 of the OAPA – more commonly known these days as ‘biological GBH’. Interestingly, the case also raised issues regarding the law’s perspective on consent – another legal issue that is inherent where offences are of a sexual nature – the case of Konzani is authority that where the victim is unaware of the infected party’s status their consent to the intercourse cannot impliedly be a consent to the risk of infection. That is not to say that the chance of infection negates consent as to the nature of the act itself; initially, prosecutors tried to argue that transmission of infection transforms otherwise consensual actions into a sexual offence of rape by deception. Alternatively where the victim is mindful of the infected party’s status, their consent is informed as to the risk of contracting the infection themselves and so, unless they were deceived – such as where an individual lies about the nature of their infection (deceit as to receiving treatment etc.) – consent may be raised as a defence to the transmission.

The case law is also illuminating as to the scope to extend the categories within biological GBH to include ‘serious’ infections: within the last couple of years, the Court of Appeal upheld a convictions for transmission of transmitted diseases other than HIV. In R v Golding, the defendant was convicted for the transmission of incurable genital herpes virus. Importantly, he suffered recurring complications with the virus himself, for which he had been referred to a specialist, and so we see that successful convictions rely on the seriousness of the infection, the knowledge of the defendant as well as that of the consenting victim.

Incredibly, despite the supporting case law and LC reports, there is still no steadfast approach from the courts regarding ‘duty to disclose’. It must be noted, however, that despite the judicial commentary and case law precedents, the opinion of the courts is that determination of the need to disclose one’s sexual health status should be on a case-by-case analysis and subject to the Jury’s opinion. It is possible that the shyness seen towards a duty to disclose is founded on the view that it is a rather draconian approach to impose such an obligation on society. Furthermore, for public policy reasons, it would be better to simply promote safer sex practices rather than last resort prosecutions.

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