HIV transmission

Question 1

Clarence 1889

Answer 1

• Transmission of gonorrhea to partner
• QBD said this was not an offence and that it was fraught with consequence to impose liability
• Marriage = consent at this time
• Assault requires more than the passing of one thing to another

Question 2

Dica 2004

Answer 2

• Knew he was HIV positive and slept with 2 women
• It was decided that Clarence does not apply anymore
• Charged under S20
• V’s consent was irrelevant because of such serious harm
• His conviction was quashed because consetn should have been left to the jury and then there was a retrial and he was convicted

Question 3

R v Wilson 1984

Answer 3

• It is now possible to convict for S20 even in the absence of an assault

Question 4

Ireland and Burstow 1998

Answer 4

• Bodily harm now includes psychiatric harm and disease

Question 5

What are the exceptions to consenting to really serious harm?

Answer 5

• Boxing

- Medical procedures

Question 6

What are the problems with criminalizing HIV transmission?

Answer 6

• Some religions cannot use protection so it is unfair to them
• Minimal criminalization as this is people’s private lives
• State should not be so intrusive
• Criminal law must only be used for the most serious crimes
• The net for criminal law should not be over powering or inclusive
• Fair labelling
• Blameworthiness
• Unfair to gay people?

Question 7

Its a complete case of fact and who is it left too?

Answer 7

• The jury

Question 8

Konzani 2005

Answer 8

• HIV positive and had sex with 3 women
• Charged S20
• TJ told jury each woman must formerly and willingly consent
• Appeal dismissed as jury were directed appropriately

Question 9

Why must a woman give informed consent?

Answer 9

• It is in the public interest to stop the spread

- Should respect a persons autonomy which is not enhanced if the HIV is concealed

Question 10

Adaye 2004

Answer 10

• Aware that he may have HIV but did not know for sure
• Pleaded guilty of S20
• Jailed for 6 years

Question 11

should the law use the definition of consent in the sexual offences act 2003 S74?

Answer 11

• Arguments for

- Arguments against

Question 12

What is willful blindness?

Answer 12

• Where someone has good cause to believe they have HIV but chooses to ignore the fact

Question 13

If you could get convicted for knowing you had HIV but not for being unsure what would be the problem?

Answer 13

• No one would get tested at all which would not be in the public interest