OAPA: Essay and reform

Saturday, 29 April 2023

00:52
 Debate been centred on areas where new specific offences against the
person could/should be created.
 Proposal for new offence targeting reckless sexual transmission of HIV;
as reluctance on part of prosecutors to charge non fatal offences in such
case.

Issue of criminlisation of transmission of HIV ; Great debates; Jonathan

Herring
 If D charged in connection w/V virus, would be under S.20 of the
Offences Against the Person Act 1861. Prosecution would have to show
that V suffered GBH, that D caused V to suffer GBH, that D has relevant
M (under S.20 must show D was reckless; foresaw that he might cause
some risk to V, not necessarily to show that he foresaw he would cause
GBH, just some harm). D will have defence to a charge of s.20 if can
show V consented to run the risk of being infected through sexual
activity, his consent must be informed consent.

 Argument in favour of criminalization of transmission of HIV:

 Yes- the D has engaged in an act he knows to be potentially
harmful and has indeed harmed the other person.

 Arguments against:
 Autonomy:
 R v Konzani COA referred this argument of personal
autonomy
 On threat of criminal punishment, law enables people to
decide whether or not they want to run risk of getting virus,
protect autonomy by stating no criminal offence where
informed consent; but punishment if there isn't consent.
 But who's autonomy in question?; one view role of consent
to protect autonomy of victim to decide with whom to have
sex, but on other hand to protect autonomy of D. Matthew
Weait says law protecting autonomy of D, as law allows
such defence as long as D had consent of V.
 Courts not addressed where D mistakenly believes there is
consent as a defence, but generally where consent is a
defence, belief in consent Is also a defence.
  The court in R v Dica said there would be practical problems
if this was criminalised, as people are allowed to take risks
inherent in other aspects of daily life e.g a mother was a
contagious illness who kisses her child goodnight.
 The law generally does allow people to engage in activities
to endanger themseleves.
 Inconsistency:
 If we apply this logic, person who is going to work with flu
should be liable for s20 or s47 offence.
 Idea if would seem unfair for law and prosecution
authorities not to treat all those who pass on infectious
diseases to others in the same way
 Could be prejudice against those who are HIV positive;
punishing one disease from others.
 Uncertainty:
-In current law; where it's impossible to give statement of the law e.g
what if D who is HIV positive, but uses a condom and therefore
believes that the risk of passing on the disease is negligible? Etc…
-But submitted these arguments not strong, as it is clear what an HIV
positive person must do to ensure her or she is not committing an
offence; and this is what the rule of law requires; that is is sufficiently
clear what a person must do to remain law abiding
 Public health issues:
-setting aside moral issues, genuine concerns about public health
-worries people who fear they may be hiv positive won't seek testing
b/c of they do, they can be readily be prosecuted if they pass on the
virus.
-Criminilisation beyond cases of intentional transmission could
undermine effective HIV prevention; as it could discourage HIV
testing, since ignorance of one's status might be percieved as the
best defence in criminal law
 Weak argument: responsibility of the victim
-some argue that it is also the victims duty to ensure they do not
acquire it