Key Point
- Consent to the risk of HIV infection from sex is no defence to section 20 Offences Against the Person Act 1861 (OAPA) if it is uninformed due to concealment by the defendant
Facts
- D was aware that he was HIV positive and the risk to his partners
- D slept with 3 women who were unaware of his status
- D was convicted under section 20 OAPA
- D appealed on the ground that the women had consented to the risk of HIV by engaging in unprotected sex or alternatively that he had an honest, if unreasonable belief that they were aware of his status
Held (Court of Appeal)
- Appeal dismissed – the conviction was safe
Judge LJ
- It is implicit in the reasoning of Dica that for consent to the risk of infection of HIV to be a defence the consent must be informed
- Concealment of condition will not allow informed consent
- In some circumstances, despite recklessness and concealment of condition, there is informed consent where the victim finds out from other sources, such as a friend, or when they started a relationship in a hospital where D was treated for HIV
- Honest belief by D of consent can be a defence, but there was not the slightest evidence of it
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