Study area
Hannah Roberts discusses R v Clarence (1888) 22 QBD 23, the case that is the starting point for any examination of assault via the infliction of a sexually transmitted disease.
Simon James was convicted of section 20 assault under the Offences against the Person Act (OAPA) 1861 at Bristol Crown Court in December 2015. While this is not, in itself, particularly noteworthy or of interest, the means by which he assaulted his two victims was: as a result of consensual sexual intercourse with James, the women were infected with HIV.
James had initially failed to inform the women of his HIV-positive status. When he told them subsequently, he refused to wear condoms, using a variety of excuses, including that he had a latex allergy, they did not fit, and he did not find them comfortable. Each time, he reassured his then partner that it was safe to have unprotected sex with him, claiming that the medication he was on would prevent him from infecting them. Crucially, though, James was not taking his prescribed antiretroviral drugs, and also missed hospital appointments throughout the period when he was in the relationships. Following his conviction, he was jailed for five years, the maximum sentence available for this crime.
knowing whether … the person with whom you are consenting to have unprotected … intercourse has an STD would appear to be of crucial importance
James’s case was not the first of its kind: as well as a small number of defendants who have been convicted following an initial not guilty plea (including R v Dica [2004] EWCA Crim 1103 and R v Konzani [2005] EWCA Crim 706), other defendants, such as Alan Mason, in September 2014, and Mweetwa Muleya, in June 2015, have pleaded guilty.
The crime with which these offenders have been convicted is defined in OAPA s20, as arising where a person ‘shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either without any weapon or instrument’ . This, therefore, is the less serious of the two grievous bodily harm (GBH) offences, with GBH having been defined by the courts as involving ‘serious harm’ (R v Saunders [1985] Crim LR 230). The section 20 offence can be established with a mens rea of either intention or recklessness regarding causing some harm (unlike its section 18 counterpart, which also requires proof of an intention to cause GBH).
The starting point for any examination of assault via the infliction of a sexually transmitted disease (STD) is, of course, R v Clarence, where the defendant had infected his wife with gonorrhea. The defendant was convicted under OAPA s47 (assault involving actual bodily harm) and OAPA s20 assault. However, Clarence’s conviction was quashed on appeal, with the judges collectively focusing in on two key stumbling blocks:
So how, over the past 100-odd years, have the courts reversed these initial findings?
In Clarence, Stephen J explained the term ‘inflict’ , noting its derivation from the Latin ‘infligo’ meaning ‘to strike’ . Accordingly, then, he believed that ‘inflict’ in this context must indicate ‘the direct causing of some grievous injury to the body itself with a weapon … or without a weapon, as by a blow with a fist, or by pushing a person down’ (para 41). In other words, it required what most ordinary people would consider to be an actual assault. Comparing the act of infecting a person with a disease with the act of poisoning a person, he concluded that such infection could not constitute a section 20 assault, not least because poisoning is covered by a separate offence under the OAPA and – if it were also to be covered within section 20 – this separate crime would be superfluous.
Subsequent cases have altered this position significantly. In R v Wilson; R v Jenkins [1984] AC 242, the House of Lords followed the Australian decision in Salisbury [1976] VR 452. So, as well as including direct and violent assaults, ‘inflict’ could also arise by ‘doing something, intentionally, which, though it is not in itself a direct application of force to the body of the victim, does directly result in force being applied violently to the body of the victim, so that he suffers grievous bodily harm’ (para 260).
Following further clarification in cases such as R v Chan Fook [1994] 2 All ER 552, with Hobhouse LJ stating that ‘an injury can be caused to someone by injuring their health; an assault may have the consequence of infecting the victim with a disease or causing the victim to become ill (para 557)’, and R v Ireland; R v Burstow [1998] AC 147, with Lord Steyn confirming that the words ‘inflict’ and ‘cause’ could effectively be considered to mean the same thing, these decisions allowed the Court of Appeal in Dica above to confirm that ‘even when no physical violence has been applied, directly or indirectly to the victim’s body, an offence under s20 may be committed’ (para 30).
Dica was a similar case to that of Simon James; the case was noted as being the first successful prosecution for inflicting GBH via infection with an STD. At trial, Dica alleged that the two infected women with whom he had had unprotected intercourse had known of his condition; however, the verdict suggests that the jury was unconvinced on this point. His conviction was upheld on appeal: the ‘infliction’ of an STD via an apparently consensual act of sexual intercourse falls within OAPA s20.
Establishing facts to support a finding of section 20 assault is not enough to secure a conviction in these circumstances, however, as all of the offences under examination arose from consensual acts of sexual intercourse. This provides the defendant with an opportunity of raising the defence of consent, ie, the victim’s agreement to the intercourse alleviated the defendant of all criminal responsibility, thus making the ‘assault’ lawful rather than unlawful.
One aspect of this defence, though, is that the courts consider that there is a certain level of harm which cannot legally be consented to. The leading case here is R v Brown and others [1994] AC 212, involving sado-masochistic activities between male homosexuals. Despite the parties’ apparent consent, the law lords held that the assaults under OAPA s47 and s20 (and, therefore, by implication section 18 too) could not be consented to unless the activities are otherwise lawful (for example, surgery or regulated sport): to allow people to consent to the intentional infliction of serious harm is not in the public interest.
The second requirement for the defence is that the consent given must be ‘real’ , meaning that the victim is not only mentally capable of giving their consent (ie, an adult rather than a child, for example), but is also in full knowledge of all pertinent facts, with no fraud having been exercised in order to obtain their agreement. Notably, for our focus cases, knowing whether or not the person with whom you are consenting to have unprotected sexual intercourse has an STD would appear to be of crucial importance.
This point was first considered in Clarence above, but the appeal court felt that there was no significant difference between consenting to sexual intercourse with a man who is ‘bodily sound and [a] man afflicted with a contagious disease’ . This was a contentious finding, and influenced heavily by morals and concerns of the time; for example, a wife was still very much seen as her husband’s property, and there are also frequent references to possible infection with the smallpox virus throughout the judgments. Subsequent cases have tidied up this area of law, though, with Dica above confirming that ‘to the extent that Clarence suggested that consensual sexual intercourse of itself was to be regarded as consent to the risk of consequent disease … it is no longer authoritative’ (para 59).
Konzani above is another case with similar facts to Dica. The defendant was found guilty of OAPA s20 assault in relation to three women, who had contracted HIV from him. Reflecting on the decision in Dica, the appeal court judges stated that only informed consent from the victim would provide a valid defence in such circumstances, and this meant actual knowledge that the defendant was HIV positive: consent to the general, potential risks of disease, etc inherent in any unprotected sexual encounter would not suffice . In the absence of such consent, Konzani was convicted.
The law in this area is, thus, much clearer and fairer than it was following Clarence. What will be more interesting is to see whether a case ever gets to court where the victim knowingly consented: ie, will the ruling in Brown and others above apply and prevent the defence from being raised?