Editorial: The Transmission of HIV and the Criminal Law

Editorial by Matthew Groves in Criminal Law Journal (Australia)
(2007) 31 Crim LJ 137

There has recently been considerable publicity about the criminal law and the transmission of human immunodeficiency virus (HIV). In South Australia, the two issues came together in an appeal concerning so-called “AIDS-denialists”. In Victoria, the possible use of the criminal law in a case involving criminal conduct and the transmission of HIV generated widespread publicity about the alleged failure of administrative arrangements to manage the behaviour of people who are HIV positive and are suspected of engaging in inappropriate behaviour. The common theme in each instance was the continued difficulty that the law has in grappling with HIV-related issues. Another common point arising from each controversy is that legal responses to HIV, at least in the criminal arena, remain vexed about issues of knowledge and consent. Even the most recent of cases shows that these age-old issues are not capable of easy resolution of exact legal principle.

Criminal cases about the transmission of HIV almost always involve sexual conduct. In most of these cases, a key dispute of fact is usually whether the alleged victims knew the accused was HIV positive. Many also raise the question of whether the accused knew if he (as it usually is a male) was HIV positive. The spectre of the Clarence1 case has long hung over such cases. That notorious case involved a husband who knew that he was suffering from gonorrhoea, but nonetheless had sex with his unsuspecting wife and passed the disease to her. Clarence was charged with inflicting grievous bodily harm and assault occasioning actual bodily harm.2 His appeal against conviction succeeded in part because the consent of Mrs Clarence to have sex with her husband was held not to be vitiated by her husband’s failure to disclose his illness. The case became more controversial over time by reason of its reliance on the artificial proposition that a married woman was, by virtue of her status as a wife, deemed to have consented to have sex with her husband. But considerable difficulty also flowed from
the suggestion of Stephen J that fraud would not vitiate consent unless it went to either the nature of the act or the identity of the other person. The main problem with that approach was that it greatly narrowed the circumstances in which fraud would stymie consent.

The High Court essentially adopted a similar view Papadimitropoulos v The Queen3 when it held that an accused who had taken a woman through a sham marriage was not guilty of rape when the two subsequently had sex (on what the woman mistakenly thought was their wedding night) because the woman knew of, and consented to, both the nature of the act and the identity of the accused. The court explained that “once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape”.4
The reasoning adopted by Stephen J in Clarence was not decisively accepted in England until
over a century later,5 but the decision had been steadily narrowed in the meantime.

Papadimitropoulos was similarly chipped away by the introduction of many lesser sexual offences under which similar fraud could have been prosecuted.6 The reasoning in these decisions has assumed renewed importance with the rise of HIV-related prosecutions because most of these cases involve allegations of fraud that are not unlike those in Clarence and Papadimitropoulos. The experience of other jurisdictions suggests that further difficulties arise from the circumstances of many HIV-related cases.

The leading New Zealand case of R v Mwai7 clearly invoked the spectre of Clarence. The defendant who was HIV positive had unprotected sex with five women without disclosing his HIV status. Two of the women became HIV positive. On appeal it was argued that the defendant could not control the virus and, therefore, had not failed to discharge any legal duty to which he might be subject. On appeal, attention focused on the likelihood that one of the defendant’s partners would contract HIV.

More particularly, it was argued that the many biological factors that could influence whether any particular sexual encounter might lead to the transmission of HIV were such that the required causal connection between the sexual act and HIV infection could not be established to the standard required in criminal cases. This argument was essentially accepted in a string of Victorian cases,8 but was flatly rejected by the Court of Appeal of New Zealand.9

Surprisingly little attention was given to the failure of the defendant to disclose his HIV status but the Court of Appeal did accept that disclosure could have made an important difference. The issue arose in the context of the extent of the defendant’s possible duty, as a person who had a dangerous thing under his control or charge,10 and the nature of the duty to take precautions against and to use reasonable care to avoid resulting dangers. The court accepted that:

It is certainly arguable that there would be no duty if the partner consented to run the risk. Seen in thisway, the duty to use a condom would arise only if there were a failure to disclose.11

Although the Court of Appeal accepted that this point was made irrelevant by the defendant’s failure to disclose his HIV status, it was clearly prepared to entertain the possibility that an informed partner might be able to consent to unprotected sex with a HIV positive person. The logically related proposition that a duty to use condoms might only fall upon a HIV positive person if he or she disclosed his HIV status assumes that the person knows of his or her own HIV status. A key problem with that approach is that proof on the part of a defendant of his or her HIV status might be difficult.

Another problem is that, if a duty to engage in protected sex might only arise if there is knowledge and disclosure of HIV status, no such duty arises in other instances. That possibility does not sit well with the great emphasis that health authorities have tried to place on the need to engage in safe sex practices in all instances.

In the leading Canadian case of R v Cuerrier,12 the accused, who was HIV positive, was charged with assault after he had unprotected sex with two women without disclosing his HIV status to either of them. The case turned on s 265(3)(c) of the Canadian Criminal Code, which provides that consent to the use of force is not obtained if the victim submits or does not resist by reason of fraud. All members of the Supreme Court held that Cuerrier’s failure to disclose his HIV status could constitute fraud within the meaning of this provision and could, therefore, vitiate consent.13 The case did not provide an entirely satisfactory precedent because the various judges issued three different theories on the requirements necessary to prove fraud in this sense.

Cory, Major, Bastarache and Binnie JJ held that a complainant’s consent to sexual activity could be vitiated by fraud if an accused failed to disclose his or her HIV status dishonestly, and this dishonesty had the effect of exposing the complainant to a significant risk of bodily harm. This latter requirement was clearly met by the risk of engaging in unprotected sex, while the proper use of condoms could reduce harm sufficiently so that there was no “significant risk of bodily harm”.

According to this view, unprotected sex could give rise to criminal liability, but protected sex
probably would not. The remaining judges added a requirement that the prosecution establish that an accused either knew, or ought to have known, that his or her fraud actually induced the complainant’s consent to have unprotected sex. McLachlin and Gonthier JJ essentially argued that Clarence should be cast aside, so that deception or dishonesty about one’s HIV status or another sexually transmitted infection could constitute fraud, which would vitiate any apparent consent to sex. L’Heureux-Dubé J cast a wider net, holding that fraud occurred when the dishonest act induced the other person to consent to the conduct, irrespective of the danger or risk of the act. On this view, any form of fraud would effectively vitiate consent.

R v Dica14 was another case involving a HIV positive man who had unprotected sex with several women without informing them of his HIV status. He was charged with the same offence used in Clarence and was convicted after the trial judge ruled that it was open to the jury to find the defendant guilty, partly on the basis that the knowledge or ignorance of the women of his health status was irrelevant because they did not have the capacity to consent to the serious harm of HIV infection.

After this ruling, the defendant chose not to give evidence. On appeal, the defendant argued that, had the trial ruling not been made, he would have testified that the women knew of his condition but consented to have unprotected sex with him.

The Court of Appeal overruled Clarence, holding that a victim’s consent to sex was not
necessarily consent to the possible consequential risk of contracting HIV, but it did concede that consent could provide a defence to the charge of inflicting grievous bodily harm. The issue of consent was, therefore, wrongly withdrawn from the jury and Dica’s conviction was overturned. This approach suggests that a person who is aware that he or she is HIV positive and recklessly transmits HIV to another person may be guilty of an offence, but the issue will depend largely on the facts of each case.

The Court of Appeal accepted that consent could not extend to conduct which amounted to a
deliberate intention to transmit HIV,15 though it is clear that proof of intentional conduct would also depend greatly on the facts of each case.16

The Court of Appeal also engaged in a curious attempt to explain the possible consequence of its acceptance of the role of consent. It reasoned that the criminalisation of risk-taking was fraught with difficulty and that “interference of this kind with personal autonomy, and its level and extent, may only be made by Parliament”.17 The Court of Appeal also observed:

The problems of criminalising the consensual taking of risks like these include the sheer
impracticability of enforcement and the haphazard nature of its impact. The process would undermine the general understanding of the community that sexual relationships are pre-eminently private and essentially personal to the individuals involved in them. And if adults were to be liable to prosecution for the consequences of taking known risks with their health, it would seem odd that this should be confined to risks taken in the context of sexual intercourse, while they are nevertheless permitted to take the risks inherent in so many other aspects of everyday life.18

While the reasoning of the Court of Appeal provoked strong opinions on the extent to which
people can and should be able to give consent to the risk of HIV infection,19 there is a clear consensus that this issue does not lend itself to a simple solution. Most of the cases to date have involved an accused who knew of his or her HIV status and nonetheless engaged in unprotected sex. All of these cases assumed that a HIV person knew the risks associated with unprotected sex but the Supreme Court of South Australia was recently faced with a novel situation in which that key assumption was challenged.

In R v Parenzee,20 the defendant appealed three convictions of conduct endangering life. The
defendant was HIV positive and had unprotected sex with three women. The prosecution focused on the defendant’s knowledge of his condition and led evidence that he knew of his HIV status and had been advised of the risks associated with unprotected sex. That evidence provided a strong foundation for a prosecution argument that the defendant knew his actions were likely to endanger the lives of his partners and that he was recklessly indifferent to this danger. The defendant’s appeal sought to completely undercut the basis of the prosecution by essentially denying the existence and effect of HIV. It was argued that existence of HIV had not been clearly proven, that the tests used to diagnose HIV infection were unreliable, and that there was no clear evidence that HIV killed CD4 cells (these are key cells associated with a healthy immune system). It was also argued that, even if HIV existed, there was no clear proof that it was sexually transmitted. An alternative to this latter argument was that, even if did HIV exist, the risk of transmission by sexual activity was extremely low. Although
these arguments were ostensibly raised as potentially relevant to sentencing, the applicant also sought an extension of time for permission to appeal. That permission was refused and the detailed consideration undertaken by Sulan J would no doubt greatly influence any future attempt to deny the existence of HIV or its connection to acquired immune deficiency syndrome (AIDS).

After a careful review of the evidence provided by expert witnesses called by the prosecution and defence, Sulan J rejected the “AIDS denialism” theory offered by the defence because the two witnesses who sought to give evidence in support of the theory were not qualified to give evidence in the fields of their claimed expertise. He also held that, even if the witnesses were regarded as suitably qualified to be experts, the basic assumptions that they sought to challenge were supported by such an overwhelming body of scientific evidence that no jury would fail to conclude that the HIV virus exists, that it is the cause of AIDS and that HIV was sexually transmissible.21

The conclusions of Sulan J fill in an important gap in the wider puzzle of HIV and criminal
liability. Relatively little attention has been paid to the issue of the knowledge of a HIV positive person about the likelihood of transmission or infection. It has usually been assumed that an accused must surely have known the key points found by Sulan J but, in the absence of clear findings to this effect, it would be possible for an accused person to deny the existence of either HIV or AIDS, or the possibility of the sexual transmission of HIV. This possibility would have pre-empted the arguments about knowledge or consent because it simply would have denied the existence of danger about HIV or AIDS. Parenzee essentially forced prosecutors to go “back to basics” and seek judicial confirmation of some fundamental points about HIV. If this ruling is adopted in other jurisdictions, and there seems little reason to doubt the very careful reasoning of Sulan J, it is now virtually impossible for an accused to deny the fundamental parameters of the medical evidence about HIV and AIDS. It is to be
hoped that these propositions will not be re-argued. While a few more “monkey trials” might provide a novel spectacle and grist for the academic mill, they would simply muddy an already obscure area.

Despite the detailed decision delivered by Sulan J in Parenzee, it was not entirely clear to whom the issues decided were relevant, ie did they affect the state of mind of the defendant or his partners? The points decided about the existence and potential danger of HIV and AIDS are clearly relevant to the offences of both endangerment and the actual infliction of harm. They are also relevant to the mental element of both defendants in HIV transmission cases and the partners of any such people who might be argued to have consented to the risk of unprotected sex. For the latter group, it seems increasingly difficult to maintain the possibility foreshadowed in Dica, namely that people may essentially provide informed consent to even the most serious possible harm because the common law has always shied away from the over regulation of personal sexual behaviour. One might suggest that the modern evolution of the laws of sexual offences, especially the reform of rape laws, represents a long journey away from that timidity.

Matthew Groves is a senior lecturer in law at Monash University, Melbourne.

1 R v Clarence (1889) LR 22 QBD 23.
2 Respectively under ss 20 and 47 of the Offences Against the Person Act 1861 (UK) (24 & 25 Vict c 100).
3 Papadimitropoulos v The Queen (1957) 98 CLR 249.
4 Papadimitropoulos v The Queen (1957) 98 CLR 249 at 261.
5 R v Linekar [1995] QB 250.
6 See, eg Crimes Act 1900 (NSW), s 61R(2)(a)(ii); Crimes Act 1958 (Vic), s 57; Criminal Code (WA), s 192.
7 R v Mwai [1995] 3 NZLR 149.
8 See the cases noted in B; D (1997) 21 CrimLJ 40; Mutemeri v Cheesman [1998] 4 VR 484; (1998) 100 A Crim R 397.
9 R v Mwai [1995] 3 NZLR 149 at 155-156.
10 Under s 156 of the Crimes Act 1961 (NZ).
11 R v Mwai [1995] 3 NZLR 149 at 156.
12 R v Cuerrier [1998] 2 SCR 371.
13 One assumption of the case was that this provision extended to sex because of the force involved, or rather that sex would normally constitute an assault in the absence of consent.
14 R v Dica [2004] QB 1257.
15 R v Dica [2004] QB 1257 at 1273. It is also worth noting that the Home Office had previously recommended that criminal liability should only attach to the intentional transmission of HIV: United Kingdom Home Office, Violence: Reforming the Offences Against the Person Act 1861 (1998).
16 The same applies to an offence under s 19A of the Crimes Act 1958 (Vic) which creates an offence of intentionally infecting another person with a serious disease.
17 R v Dica [2004] QB 1257 at 1271.
18 R v Dica [2004] QB 1257 at 1271.
19 See, eg Ryan S, “Reckless Transmission of HIV: Knowledge and Culpability” [2006] Criminal Law Review 981; Weait M,
“Criminal Law and the Sexual Transmission of HIV: R v Dica” (2005) 68 Modern Law Review 121.
20 R v Parenzee [2007] SASC 143.
21 Sulan J also rejected related arguments that the tests for the detection of HIV were not scientifically reliable or credible.