Risk-taking, recklessness and HIV transmission: Accommodating the reality of sexual transmission of HIV within a justifiable approach to criminal liability

Liverpool Law Review

Volumn 28, Issue 2, 2007, Pages 215-247

  Ryan, Samantha ^a  

^a NEWCASTLE UNIVERSITY   (United Kingdom)

Author keywords

HIV transmission; Justifiability; Precaution; Risk taking; Seriousness and likelihood of risk; Social utility

Indexed keywords

EID: 34548595576     PISSN: 0144932X     EISSN: 15728625     Source Type: Journal    
DOI: 10.1007/s10991-007-9020-7     Document Type: Article

References (228)

1. See C. Strickland, "Why Parliament should create HIV specific legislation" [2001] Web Journal of Curent Legal Issues;
2. M. Weait & Y. Azad, "The Criminalisation of HIV transmission in England and Wales: Questions of Law and Policy", (2005) 10 HIV/AIDS Policy & Law Review August 2005;
3. D. Warburton, "A Critical Review of English Law in Respect of Criminalising Blameworthy Behaviour by HIV - Individuals" (2004) 68 Journal of Criminal Law pp. 55-77;
4. Terrence Higgins Trust, Criminal Prosecution of HIV Transmission April 2006, available from http://www.tht.org.uk/infromationresources/ publications/policystatement/prosecutionofhi vtransmission.pdf, accessed on 23 November 2006.
5. The issue has also been considered in a wider context, see R. Elliott, Criminal Law, Public Health and HIV Transmission: A Policy Options Paper (Joint United Nations Programme on HIV/AIDS, 2002)
6. and M. Nyambe & H. Gaines, Criminalisation of HIV transmission in Europe, (Global Network of People living with HIV - Europe, 2005) available at http://www.gnpplus.net/criminalsiation/index.shtml, accessed on 14 December 2006.
7. For earlier discussion of this issue see S. Bronitt, "Spreading Disease and the Criminal Law" [1994] Criminal Law Review, pp. 21-34 ;
8. H. Power, "Consensual Sex, Disease and the Criminal Law", (1996) 60 Journal of Criminal Law, pp. 412-423;
9. P. Alldridge, "Sex, Lies and the Criminal Law" (1993) 44 Northern Ireland Legal Quarterly, pp. 250-268;
10. K.J.M. Smith, "Sexual Etiquette, Public Interest and the Criminal Law", (1991) 42 Northern Ireland Legal Quarterly pp. 309-331;
11. and Lynch, "Criminal Liability for Transmitting Disease", [1978] Criminal Law Review, pp. 612-625.
12. HMA v Kelly, Unreported, 23 February 2001. For consideration of this case and the position in Scottish criminal law with regard to liability for HIV transmission see V. Tadros, "Recklessness, Consent and the Transmission of HIV" (2001) 5 Edinburgh Law Review, pp. 371-380;
13. and J. Chalmers, "Sexually Transmitted Diseases and the Criminal Law" [2001] Juridical Review, pp. 259-278.
14. See National Aids Trust, Criminal Prosecution of HIV Transmission: Policy Update, (NAT, August 2006). The majority of convictions have been for the transmission of HIV within the context of heterosexual relationships, but there has been one conviction for homosexual transmission of HIV. There has also been one acquittal, which occurred in a case of homosexual transmission. The acquittal appears to have been due to a lack of scientific evidence regarding the route of transmission. A brief account of the cases is available from the Terrence Higgins Trust at http://www.tht.org.uk/informationresources/ prosecutions/recentcourtcases, accessed on 24 November 2006. According to NAT at least two other prosecutions have been commenced but temporarily halted in Scotland and one further case is in process.
15. [2004] Q.B. 1257.
16. [2005] 2 Cr. App. R. 14.
17. See generally M. Davies, "R v Dica: Lessons in Practising Unsafe Sex" (2004) 68 Journal of Criminal Law, pp. 498-506;
18. J.R. Spencer, "Liability for Reckless Infection: Part 1" (2004) New Law Journal, pp. 384-385;
19. J.R. Spencer, "Liability for Reckless Infection: Part 2" (2004) New Law Journal, pp. 448;
20. M. Weait, "Dica: knowledge, consent and the transmission of HIV" (2004) New Law Journal, pp. 826-827;
21. M. Weait, "Criminal Law and the Sexual Transmission of HIV: R v Dica" (2005) 68 Modern Law Review, pp. 121-134;
22. M. Weait, "Knowledge, Autonomy and Consent: R v Konzani" [2005] Criminal Law Review, pp. 763-772.
23. Although even in this regard it could be argued that analysis was fairly limited - see S. Ryan, "Reckless Transmission of HIV: Knowledge and Culpability", [2006] Criminal Law Review, pp. 981-992.
24. Griew states that "recklessness refers to conscious unjustified risk-taking". See E. Griew, "Consistency, Communication and Codification: Reflections on Two Mens Rea Words" in P. R. Glazebrook (ed.), Reshaping the Criminal Law, (London: Steven & Jones, 1978), pp. 57-76 at 60.
25. See also G. Williams, Textbook of Criminal Law, 2nd edition, (London: Stevens & Jones, 1983) at 96.
26. S. Zierler & N. Krieger, "Reframing Women's Risk: Social Inequalities and HIV infection", (1997) 18 Annual Review of Public Health, pp. 401-436.
27. M. Weait, "Knowledge, Autonomy and Consent: R v Konzani" [2005] Criminal Law Review, pp. 763-772, at 771.
28. Weait questions how the phrase "from whom the risk is concealed" used by Judge LJ in Dica [2004] QB 1257, at 1273 is to be interpreted arguing that "if this is interpreted as 'from whom he has concealed the risk' then the fact that a partner knows his HIV-positive stance would not preclude a conviction". Weait suggests that this would be an "odd" interpretation and that a conviction on such facts would be wrong in law - see "Dica: knowledge, consent and the transmission of HIV", (2004) New Law Journal 28, pp. 826-827 at 827.
29. See R v Dica [2004] Q.B. 1257, at 1273 per Judge LJ. In Scotland it seems that the offence charged will be that of recklessly causing injury - see HMA v Kelly, Unreported, 23 February 2002. In England and Wales the offence with which those convicted have so far been charged with is recklessly causing grievous bodily harm contrary to section 20 of the Offences Against the Person Act, 1861.
30. See S. Ryan, supra n.7.
31. Ryan also contends that the law is unclear as to whether the accused must have knowledge regarding methods of transmission of HIV before he/she can be deemed reckless. The Crown Prosecution Service in its Consultation Paper "Draft Policy for prosecuting cases involving sexual transmission of infections which cause grievous bodily harm" (September, 2006), states that the defendant's knowledge and understanding of his/her infection and its communicability may be relevant to the issue of recklessness. A copy of the consultation paper is available from http://www.ukcoalition.org/laws/cps/cps06. htm accessed on March 27 2007.
32. See M. Weait, "Criminal Law and the Sexual Transmission of HIV: R v Dica", (2005) 68 Modern Law Review, pp. 121-134 at 131
33. and M. Weait & Y. Azad, supra n.1.
34. J.R. Spencer, "Retrial for Reckless Infection", (2004) New Law Journal 762 (my emphasis).
35. See further S. Ryan, supra n.7.
36. Reported in The Times, January 10, 2004;
37. The Guardian, January 13,2004.
38. See C. Dodd et al, Grievous harm? Use of the Offences Against the Person Act 1861 for sexual transmission of HIV, (Sigma Research, 2005).
39. See P. Broster, "HIV Asylum Fiend Jailed for six years", The Express, January 13, 2004.
40. R v Dica, supra n.4. Judge LJ made clear that according to the principles laid down in R v Brown [1994] 1 A.C. 212 consent would not provide a defence to a charge of intentional transmission of HIV.
41. See R v Konzani, supra n.5, at para 41 per Judge LJ.
42. Ibid.
43. M. Weait, supra n.10, at 765. This issue will be discussed further in the penultimate section on victim's awareness of the risk and willingness to accept it.
44. Supra n.4, at 1268.
45. Although Pedain suggests that the reasoning in Dica was open to two possible interpretations. One, the "informed consent" reading under which a person who remains ignorant of their partner's HIV status can never be said in law to consent to the risk of transmission. A second possible reading, which Pedain terms the "liability restricting" reading would recognise that a valid consent could be given even where disclosure has not been made. See A. Pedain, "HIV and Responsible Sexual behaviour", (2005) 64 Cambridge Law Journal, pp. 540-543 at 540/541.
46. Supra n.4, at 1273.
47. See M. Weait, supra n.10, at 764 onwards.
48. M. Weait, supra n.14, at 127/128 provides a number of examples where such knowledge may be held in the absence of disclosure from the person infected, for example where a hospital letter concerning a sexual partner's HIV status has been seen, or where there is knowledge that one's partner has previously been sexually active with a group that did not practise safer sex.
49. Supra n.5.
50. Supra n.5, para 42.
51. Ibid. Judge LJ further stated at paragraph 45 that a defendant's honest belief in the alleged victim's consent would only provide a defence where that belief was concomitant with the consent which provides a defence.
52. Supra n.5, para 44.
53. M. Weait, supra n. 10, at 767.
54. Ibid, at 766.
55. See generally M. Weait, supra n.10, at 768.
56. See Z. Lazzarini, S. Bray & S. Burris, Evaluating the Impact of Criminal Laws on HIV Risk Behaviour (Centre for Laws and the Public's Health at John Hopkins and Georgetown Universities; June 19, 2002) who comment upon the importance of the law reflecting the norms of behaviour among HIV-positive people in order to ensure compliance with the law and ensure that people with HIV do not feel that the law being applied is unfair or discriminatory.
57. D. Ainslie, "AIDS and Sex: Is Warning a Moral Obligation?" (2002) 10 Health Care Analysis, pp. 49-66, at 55.
58. S. Shute, "Knowledge and Belief in the Criminal Law" in S. Shute & A.P. Simester (eds.), Criminal Law Theory: Doctrines of the General Part, (Oxford: Oxford University Press, 2002), pp. 171-206, at 181.
59. See J.R. Spencer, "Liability for Reckless Infection: Part 1" (2004) New Law Journal, pp. 384-385 at 385.
60. [1979] Q.B. 695, at 703 per Geoffrey Lane LJ.
61. See J.R. Spencer, supra n.37, at 384.
62. R. Elliott in Criminal Law & HIV/AIDS: Final Report (Canadian HIV/AIDS Legal Network and Canadian AIDS Society, Montreal, 1996) says that in assessing whether the taking of a given risk is justified a court will consider the magnitude of the risk, the gravity of the potential harm and the social value of the activity carrying the risk.
63. See further the Law Commission. No 31. Working Paper on the Mental element in Crime, p 53
64. and C.M.V. Clarkson & H.M. Keating, Criminal Law Text and Materials, 5th edition, (London: Sweet & Maxwell, 2003) at 146.
65. The traditional subjective test of recklessness was established in R v Cunningham [1957] 2 Q.B. 396. The objective test set out in R v Caldwell [1982] A.C. 341 was overruled by the House of Lords in RvG and Another [2004] 1 A.C. 1034. Although Lord Bingham appeared to confine his comments in this case to the offence of criminal damage. In AG's Reference (No 3 of 2003) [2004] 2 Cr. App. R. 367 it was said that general principles were laid down in the R v G and Another case and that accordingly its reasoning was not confined to criminal damage.
66. G. Williams in Textbook of Criminal Law, 2nd edition, (London: Stevens & Sons, 1983), at 98 states that the jury determine whether the risk was a reasonable/justifiable one for the defendant to run.
67. See also A. Norrie, "Subjectivism, Objectivism and the Limits of Criminal Recklessness" (1992) 12 Oxford Journal of Legal Studies, pp. 45-58.
68. D. Warburton, supra n.1, at 63.
69. See M. Weait, supra n. 14, at 130. Of course Weait's decision not to consider the issue of justifiability on this occasion may be partly explained by the fact that in this article he is commenting on the decision in Dica which did not address the issue of justifiability of risk at all.
70. Supra n.4.
71. Supra n.5.
72. Supra n.4, at 1261.
73. Ibid. The use of precaution will be discussed further later on in the paper.
74. Supra n.5, at para 4.
75. R. Bennett, H. Draper, & L. Frith, "Ignorance is Bliss? HIV and moral duties and legal duties to forewarn", (2002) 26 Journal of Medical Ethics, pp. 9-15, at 14.
76. A. Pedain, supra n.17, at 542.
77. See Health Protection. Agency, A Complex Picture, HIV and other Sexually Transmitted Infections in the UK: 2006 (Health Protection Agency, November 2006).
78. See National AIDS Trust & Terrence Higgins Trust, Assaults and Other offences Against the Person - Sentencing Advisory Panel Consultation, (NAT/THT, November 2005), at 2.
79. See C. Dodd et al., supra n.16
80. and National AIDS Trust Policy Update, Criminal Prosecution of HIV Transmission, July 2005.
81. M.A. Schlitz, & Th. G. M. Sandfort, "HIV-positive people, risk and sexual behaviour" (2000) 50 Social Science & Medicine, pp. 1571-1588, at 1576.
82. See Health Protection Agency, supra n.51.
83. Z. Lazzarini, S. Bray, & S. Burris, supra n.34, at 24;
84. see also National AIDS Trust & Terrence Higgins Trust, supra n.52.
85. See National AIDS Trust & Terrence Higgins Trast NAT & THT, supra n. 52 at 2 citing research conducted by Lewden, C. abstract PE18.4/8, 2005 10th European AIDS Conference.
86. R. Bennett, H. Draper & L. Frith, supra n.49, at 14.
87. H.L.A. Hart, Law, Liberty and Morality (Stanford California: Stanford University Press, 1963).
88. [1996] 141 DLR (4th) 503.
89. Supra n.54, at 1573.
90. Ibid, at 1577.
91. See D. Warburton, supra n.1, at 65. Although Warburton states that he is not suggesting that HIV positive people ought never be permitted to engage in sexual intercourse- he seems to come pretty close stating that "[the idea] that there may be a public interest in sanctioning unprotected contact is unconvincing. Furthermore, whether it truly is a 'positive social purpose' for HIV positive people to procreate, given the significant likelihood of subsequent foetal infection, must be a subject open to debate".
92. Judge LJ in R v Dica, supra n.4, at 1271 referred to the "general, understanding of the community that sexual relationships are pre-eminently personal to the individuals involved in them".
93. K.J.M. Smith, supra n.1, at 328.
94. See V. Tadros, supra n.2, at 377.
95. This issue is being considered solely in terms of whether the risk taken of transmitting HIV is justifiable or not. It is not being considered in the context of its relationship to consent by a sexual partner to run a risk of infection. Whilst the author agrees with M. Weait supra n.14, at 125 that magnitude of a risk may be properly ignored when dealing with consent (either the victim consents to the risk of transmission or they do not), it is suggested that in terms of establishing recklessness and assessing the justifiability of a risk it is essential that it be considered.
96. As V. Tadros, supra n.2, at 377 has noted - "it may be that the risk taken is too small to amount to recklessness". Although sometimes quite small risks may be punished if there is no social value or utility attached to the conduct which creates the risk -
97. see C.M.V. Clarkson & H.M. Keating supra n.39, at 68.
98. V. Tadros, supra n.2, at 378.
99. S. Bronitt, supra n.1, at 29 has described the problem with such an approach. He has written "requiring a person to be aware of 'a risk' that a particular result 'will occur' does not help the jury fix with any precision how likely the occurrence of that result must be".
100. See R. Elliott, supra n.1, at 5.
101. Ibid.
102. N. Taylor, Prosecuting Bedroom Offences: The Criminalisation of harmful HIV-related behaviour, (Women's Legal Centre, Cape Town, May 2004).
103. R. Elliott, supra n.1.
104. C. Strickland, supra n.1.
105. J.R. Spencer, supra n. 37, at 385.
106. [1998] 2 S.C.R. 371 - The defendant in this case had been told that he was HIV-positive and that he should use condoms and inform his sexual partners about his HIV-positive status. Post diagnosis he had unprotected sexual relations with two different women KM and BH. He did not disclose his HIV-positive status to either partner before commencing a sexual relationship with them (although KM did discover during the course of the relationship that Cuerrier was HIV positive and continued to have unprotected intercourse with him). At the time of the trial neither woman was found to be HIV-positive.
107. [1998] 2 S.C.R. 371, at para 95 per Cory J. This point was reaffirmed by the Canadian Supreme Court in R v Williams [2003] 2 SCR 134 where it was said that a single act of unprotected vaginal intercourse carries a significant risk of HIV transmission.
108. See generally Canadian AIDS Society, HIV Transmission: Guidelines for assessing risk, 3rd edition, (Ottawa: Canadian AIDS Society, 1999).
109. See also M. Stein et al. "Sexual Ethics: Disclosure of HIV-Positive Status to Partners" (1998) 158 (3) Archives of Internal Medicine, pp. 253-257;
110. and D. Ciccarone et al., "Sex without Disclosure of Positive HIV Serostatus in a US Probability Sample of Persons Receiving Medical Care for HIV Infection" (2003) 93 American Journal of Public Health, pp. 949-954.
111. Although of course if any such guidance had been given by the Canadian Supreme Court in Guerrier it would have been merely obiter and not binding. However it would have given those infected a better understanding of what conduct would most likely be caught by the criminal law. It is also worth noting that all the UK cases to date have involved high risk activity such as penetrative vaginal or anal intercourse so even if the issue of degree of risk had been considered any comments made regarding lower risk activity would have been obiter.
112. For unprotected sexual exposure see the BASHH (British Association for Sexual health and HIV) guidelines on risk discussed by M. Fisher et al., "UK Guideline for the use of post-exposure prophylaxis for HIV following sexual exposure" (2006) 17 Journal of STD & AIDS, 81, at 82.
113. See more generally R. Elliott, After Cuerrier: Canadian Criminal Law and the Non-Disclosure of HIV-positive Status, (Canadian HIV/AIDS Legal Network, 1999);
114. and Canadian AIDS Society, HIV Transmission: Guidelines for assessing risk, 3rd edition, (Ottawa: Canadian AIDS Society, 1999).
115. See R. Elliott, supra, n.39, at 30.
116. See also the BASHH guidelines,
117. supra n.81, at 82 which puts the risk of HIV transmission following an exposure from a known HIV-positive individual at 0.1 -3.0% for receptive anal intercourse; 0.1-0.2% for receptive vaginal intercourse; 0.03-0.09% for insertive vaginal intercourse and 0.06 for insertive anal intercourse.
118. It could be argued that if unique biological properties based on gender exist that they should be reflected in the legal approach to punishing HIV transmission - see M.A. Bobinski, "Women and HIV: A Gender-Based analysis of a disease and its legal regulation" (1994) 3 Texas Journal of Women and the Law, pp. 7-56.
119. See M.A. Bobinski, supra n. 83, at 30.
120. H. Amaro, "Love, Sex and Power: Considering Women's realities in HIV Prevention" (1995) 50(6) American Psychologist, pp. 437-447 states that the odds of male to female transmission are 12 times greater than of female to male.
121. See also G. Wingood, & R. DiClemente, "Application of the Theory of Gender and Power to Examine HIV-Related Exposures, Risk Factors, and Effective Interventions for Women", (2000) 27 Health Education & Behaviour, pp. 539-565.
122. M.A. Bobinski, supra n. 83, at 39
123. Unnamed Woman Wales, July 2005;
124. and Sara Jane Porter, June 2006 - see National AIDS Trust, Criminal Prosecution of HIV NAT Policy Update, August 2006, at 6.
125. V. Tadros, supra n.2, at 378.
126. S. Leake & D.C. Ormerod in their comment on Dica - "Case Comment - Grievous Bodily Harm" [2004] Criminal Law Review, pp. 944-948 at 947 question whether using a condom is a justified risk to take.
127. Supra n.4, at 1262.
128. The CPS in its Draft Policy Consultation Paper, supra n. 13, appear to take the latter view. It is said that the correct and consistent use of a condom, together with the immediate disclosure by the defendant of his/her infected status upon realising that the condom has broken during use, will be a significant factor that the prosecutor will take into account in deciding whether the defendant was reckless.
129. Supra n.5, at para 4.
130. See S. Bronnit, supra n. 1, at 29/30.
131. As M. Weait, supra n.10, at 771 points out Lord Templeman in R v Brown [1994] 1 A.C. 212 specifically referred to the fact that precautions had been taken as providing evidence that the defendants were aware of the possibility of infection.
132. As shown earlier in the text awareness of a slight risk of transmission appears to currently suffice for criminal liability. Ormerod & Gunn recognise that a person using precaution is still a conscious risk taker and may therefore have the mens rea required by Cunningham - see D.C. Ormerod & M.L. Gunn, "Criminal. Liability for the Transmission of HIV", [1996] 1 Web Journal of Current Legal Issues.
133. See R. Elliott, supra n. 1.
134. See J. Chalmers, "The Criminalisation of HIV transmission" (2002) 28 Journal of Medical Ethics, pp. 160-163 who states that condoms reduce the risk of transmission by 69%.
135. See further S.C. Weller, "A meta-analysis of condom effectiveness in reducing sexually transmitted HIV" (1993) 36 Social Science and Medicine, pp. 1635-1644;
136. and I. De Vincenzi, "A. longitudinal study of human immunodeficiency virus transmission by heterosexual partners" (1994) 331 New England Journal of Medicine, pp. 341-346.
137. [1998] 2 S.C.R. 371, per Cory J para 129. McLachlin J. at para 73 stated "protected sex would not be caught".
138. K.J.M. Smith, supra n.1, at 328.
139. M.A. Field, and K.M. Sullivan, "Aids and the Criminal Law" (1987) 15 Law Medicine and Health Care, pp. 46-60, at 53.
140. D. Warburton, supra n.1, at 65.
141. Stein et al., supra n. 79, at 253.
142. C.A. Erin & J. Harris, "AIDS: ethics, justice, and social policy" (1993) 10 Journal of Applied Philosophy, pp.165-173.
143. D. Ciccarone et al., supra n.79, at 953. It is said to be indefensible as it does not allow the other partner the opportunity of exercising informed choice about what level of risk is acceptable.
144. D. Ciccarone et al., supra n.79, at 949.
145. Supra n.5, at para 41. The Court described the allegation of recklessness as being based upon the fact that "knowing he was suffering from the HIV virus, and its consequences, and knowing the risks of its transmission to a sexual partner, he concealed his condition from the complainants, leaving them ignorant of it" (my emphasis).
146. See M. Weait & Y. Azad, supra n.1 who describe it as a radical interpretation of recklessness.
147. Supra n.4, at 1272. This argument had been raised in submissions made by various interested organisation such as the Terence Higgins Trust, the George Trust, and the National AIDS Trust.
148. C. Dodd et al., supra n.16, at 12.
149. See R. Elliott, supra n.1.
150. R. Bennett, H. Draper & L. Frith, supra n.49, at 12.
151. D. Ciccarone et al., supra n.79
152. and P. Keogh, P. Weatherburn & M. Stephens, Relative safety: risk and unprotected anal intercourse among Gay men with diagnosed HIV, (London: Sigma Research, 1999) found that many people who do not disclose their HIV status often take steps to reduce the risk of transmission to their partners.
153. Of course it is worth bearing in mind that what people claim to do and what they actually do may be different. Other research has shown that non-disclosers were not more likely to use condoms - see Stein et al., supra n.79
154. and S.C. Kalichman & D. Nachimson, "Self-efficacy and disclosure of HIV-positive serostatus to sex partners" (1999) 18 Health Psychology, pp. 281-287.
155. Ciccarone et al, supra n. 79, at 953.
156. Stein et al., supra n.79, at 256.
157. Supra a. 77.
158. [1998] 2 S.C.R. 371, per Cory J para 129.
159. See generally R. Elliott, supra n. 81.
160. See generally Stein et al., supra n. 79.
161. See National AIDS Trust, supra n. 52.
162. Ibid.
163. Schlitz & Sandfort, supra n.54, at 1574 found fear of personal rejection to be one of the most dreaded consequences of disclosure.
164. See generally C Dodd et al., supra n.16, at 26;
165. and National AIDS Trust, supra n.52, at 8;
166. Stein et al., supra n.79
167. and S. Kalichman, M. DiMarco, J. Austin, W. Luke, & K. DiFonzo, "Stress, Social Support, and HIV-Status Disclosure to family and Friends Among HIV-Positive Men and Women", (2003) 26(4) Journal of Behavioural Medicine, pp. 315-332.
168. See Stein et al., supra n.79, at 255-256.
169. Ibid.
170. Stein et al., supra n.79 found that people with only 1 partner were more likely to disclose than people with several partners.
171. Ciccarone et al., supra n. 79, at 952/953 found that norms regarding disclosure were different amongst different groups stating "within the gay community, the prevalence of HIV infection is substantially higher than it is among heterosexuals, providing a basis for HIV-positive gay or bisexual men to assume their partners are aware of HIV transmission risk even if they do not disclose their seropositive status".
172. See S. Kalichman, M. DiMarco, J. Austin, W. Luke, & K. DiFonzo, supra n. 119;
173. Stein et al., supra n. 79;
174. and C. Dodd et al., supra n.16.
175. Kalichman & Nachimson, supra n.110.
176. See R.L. Sowell, B.F. Seals, K.D. Phillips, & C.H. Julius, "Disclosure of HIV infection: how do women decide to tell", (2003) 18(1) Health Education Research Theory & Practice, pp. 32-44, at 33.
177. See generally Ciccarone et al., supra n.79
178. and Stein et al., supra n. 79.
179. R. Elliott, supra n. 81, at 24.
180. P. Keogh, P. Weatherburn & M. Stephens, supra n. 110.
181. Naturally some of the problems identified in the discussion which follows may have relevance within the context of homosexual or lesbian relationships also.
182. See generally N. Taylor, supra n. 73,
183. and Amaro, supra n.84, at 444.
184. J. Pulerwitz, H. Amaro, W. De Jong, S.L. Gortmaker & R. Rudd, "Relationship power, condom use and HIV risk among women in the USA", (2002) 1.4(6) AIDS Care, pp. 789-800.
185. See also Amaro, supra n.84, at 444 who writes "sexual behaviour [for women] often occurs in the context of unequal power and in a context that socializes women to be passive sexually and in other ways".
186. See Pulerwitz et al., supra n. 131.
187. See Schlitz & Sandfort, supra n.54, at 1579.
188. Zierler & Krieger, supra n. 9, at 419.
189. Amaro, supra n. 84, at 444,
190. Zierler & Krieger, supra n.9, at 420.
191. Amaro, supra n.84, at 440 - states that "condom use is a sexual behaviour that is clearly under the control of men and is embedded in a socially sanctioned inequality between the parties".
192. See J. Simoni. J, K. Walters, & D. Nero, D, "Safer Sex Among HIV+ Women: the Role of Relationships", (2002) 42 (7/8) Sex Roles, pp. 691-707, at 692.
193. Ibid.
194. D. Worth, "Sexual Decision-Making and AIDS: Why Condom Promotion among Vulnerable Women is Likely to Fail", (1989) 20 (6) Studies in Family Planning, pp. 297-307, at 304.
195. See R. Elliott, supra n. 39.
196. It is recognised that given the seriousness of the risk posed people may feel, that uncertainty of the risk of transmission would nevertheless outweigh the certainty of the violence.
197. See Zierler & Krieger, supra n.9, at 421.
198. The fact that a risk of transmission was being taken repeatedly would significantly increase the likelihood of transmission. However repeated risk taking could possibly be distinguished from, a one-off risk being taken. It may be possible that in the later instance a stronger case as to justifiability of the risk could be made. See J. Chalmers, supra n.2.
199. See submissions made by the National Aids Trust and the Terrence Higgins Trust, supra n.52, at 4/5.
200. Schlitz & Sandfort, supra n.54, at 1575.
201. Ciccarone et al., supra n.79, at 949.
202. Interestingly in the Unnamed woman case in Wales (July 2005) the female accused in her statement to the court said that she had trusted medical advice given to her that it was difficult for HIV to be transmitted from women to men - see Dodd et al., supra n.16, at 29
203. citing Coles J "HIV woman infected man", The Sun, 18 July, 2005.
204. Bobinski, supra n. 83, at 44/45 has commented that the consent defence has a "particularly ambiguous role in the protection of women because of the potential conflict between the abstract protection of autonomy and the inequality of power between men and women that exists as a matter of reality". Bobinski questions whether in order to protect women the criminal law should require both consent and safer sex but ultimately accepts that rejecting a consent defence would take from women the power to decide whether or not to take the risk - to disallow such a defence would essentially perpetuate the powerlessness of women.
205. For commentary on this see M. Weait, supra n. 10.
206. See M. Weait, supra n.10, at 766
207. and M. Weait, "Taking the Blame: Criminal Law, Social Responsibility and the Sexual Transmission of HIV" (2001) 23(4) Journal of Social Welfare and Family Law, pp. 441-457, at 452.
208. J. Dine & B. Watt, "The transmission of disease during consensual sexual activity and the concept of associative autonomy", [1998] Web Journal of Current Legal Issues;
209. H. Power, supra n.1;
210. N. Taylor, supra n. 73
211. and M. Weait, supra n. 150.
212. See J. Dine & B. Watt, supra n.151.
213. See M. Weait, supra n.10, 765.
214. See Dodd et al., supra n.16, at 5/6.
215. See Ainslie, supra n.35, at 49;
216. Schlitz & Sandfort, supra n.54, at 1573.
217. Ainslie, supra n.35, at 49/50,
218. Schlitz & Sandfort, supra n.54, at 1574 who recognised that with the increased life expectancy of those infected with HIV the idea of 'zero - risk', i.e. complete abstinence, was no longer realistic and safer sex policies were introduced to help deal, with the problem of sustaining perfect safe sexual practices over the long term.
219. See R. Elliott, supra n.1, at 7
220. and National AIDS Trust Policy Update, supra n.3, at 9.
221. Ibid.
222. Bennett, Draper & Frith, supra n. 46, at 11.
223. It could also be argued that the law would be failing to respect people's autonomy if it interfered with their decision to engage in activity in which they risk harm to themselves - see R. Elliott, supra n.1.
224. See R. Elliott, supra n.1.
225. Dodd et al., supra n.16, at 17 suggest that a moral distinction can be made between keeping quiet and seeking to deceive but recognise that the Offences Against the Person Act, 1861 does not afford us a means of addressing this distinction.
226. See A. Norrie, Crime, Reason and History, (London, Weidenfeld and Nicolson, 1993), at 80/81.
227. Norrie suggests that the question has been marginalised by taking the evaluative question of justifiability of risk out of the hands of the accused so as to deny him/her the ability to contest the justice of his/her actions (see further Norrie, supra n. 41, at 57). This writer does not consider the objective nature of the question to necessarily be a cause for concern, provided that the question of justifiability is fully argued. Interestingly, Norrie further suggests that the question of justifiability has also been marginalised through a process of filtering out what are seen as justifiable risks. He writes "There is an entire process of exclusion of politically contentious questions and arguments from the courtroom that begins in the wider political and ideological environment, filters into the decisions of the personnel of the criminal justice system who bring cases to court, informs the perspectives of adjudicators in the courts, and finally enters into the very bones of the substantive criminal law". This "process of filtering out" is arguably evidenced in Dica and Konzani (and all other cases on HIV transmission heard to date) where it seems to have been presumed, without any debate or argument, by all parties involved, at all stages of the process, that any risk-taking in relation to HIV transmission is quite simply unjustifiable. This process of filtering out is a cause for concern as it operates on assumptions about justifiability that have not been fully argued or considered.
228. See Ainslie, supra n.35, at 56.