Laws of Eve | Is reckless sexual behaviour a crime?

One of the first issues to which law students are exposed during their course of study is the tussle between morality and the law and, by extension, the debate surrounding the regulation of personal relationships and, ultimately, the criminalisation of certain sexual acts between consenting adults.

In many instances, the case of R v Clarence (1898) is mentioned in that discussion, because it was held that, "a man who knew that he had gonorrhoea and foresaw that it was possible he could transmit the disease to his wife by having sexual intercourse with her, and yet proceeded to do so without informing her of his condition, could not be convicted of maliciously inflicting grievous bodily harm upon her".

WITHOUT INTENT

More modern English cases do not follow the decision in Clarence, and the case of R v Dica (2004) is one such example. The issue in that case was whether a person should be convicted of inflicting grievous bodily harm when, without the intent to infect his partner, but with knowledge that he is HIV-positive, he engages in sexual intercourse with that partner. The question is whether a person is mandated, by law, to expose his HIV status to his prospective sexual partner and, if he does not, does the reckless sexual transmission of HIV constitute a crime?

On May 10, 2017, the Australian High Court decided that it would no longer follow the decision in Clarence.

In the case of Michael Aubrey v The Queen, Aubrey engaged in unprotected anal sexual intercourse with the complainant between January and June 2004 in circumstances in which he knew that he had been diagnosed as being HIV-positive. He was charged with maliciously causing the complainant to contract a grievous bodily disease with the intent of causing the complainant to contract that grievous bodily disease and, in the alternative, maliciously inflicting grievous bodily harm upon the complainant. The prosecutors alleged that Aubrey inflicted grievous bodily harm upon the complainant in that "the complainant was infected with a grievous bodily disease (HIV) as the immediate consequence of the relevant act of intercourse".

Much debate surrounded the word "inflicted" and whether it meant that there had to be application of actual violence through a blow or a hit, but the court concluded that "the infliction of harm does not require a direct or indirect application of force and that grievous bodily harm may be inflicted by the transmission of a sexual disease". The court also concluded that harm may be inflicted even when there is no immediate consequence. In other words, the fact that the symptoms of HIV might not be immediately apparent did not mean that the injury had not been inflicted.

'MALICIOUSLY' INFLICTED

The question of whether it was proven that Aubrey "maliciously" inflicted grievous bodily harm was also discussed. At trial, Aubrey conceded that he had known that there was a real possibility that he could infect the complainant by having unprotected sexual intercourse with him; and the court found that his foresight of the possibility that the risk would materialise was sufficient proof that he acted maliciously.

In Dica, the Court of Appeal raised concerns about the wider implications of criminalising reckless HIV transmission. For example, will it mean that persons may choose to remain ignorant about their HIV status, since knowingly concealing that information is the basis of liability? I hope that will not be the result; and that responsible sexual behaviour will be the order of the day.

- Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.