Criminal Law

Non-fatal Offences Cases

R v Dica [2004] QB 1257

Key Point

• Grievous bodily harm is inflicted a HIV or other sexual disease is transmitted
• Consent by the victim to the risk of sexually transmitted diseases is a defence to s20 OAPA but not to s18 OAPA

Facts

• D was aware that he was HIV positive
• D had sex with 2 women who were subsequently diagnosed with HIV
• D was convicted with inflicting grievous bodily harm contrary to s20 OAPA
• The judge had directed the jury to convict even if women were aware of his condition
• D appealed, arguing that the women knew of his condition

Held (Court of Appeal)

• Appeal allowed – conviction quashed, retrial ordered

Judge LJ

• Consent to sexual intercourse meant that D was not guilty of rape, but it does not entail consent to the risk of sexual diseases if it was concealed: [39]
• Consent is no defence to a charge of deliberate or intentional infection of HIV under s18 OAPA based on the principle from R v Brown, but this was not alleged here: [58]
• Consent is a valid defence to an offence under s20 OAPA for recklessly transmitting HIV through sexual intercourse: [59]

Commentary

• The defence of consent to the risk of infection was justified by Judge LJ on the grounds of personal autonomy and respect for private life, as well as the impracticality of enforcement