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Jersey & Guernsey Law Review – February 2008

MISCELLANY

HIV AND GRAVE AND CRIMINAL ASSAULTS IN JERSEY

1       In Whelan ‘s Grave and criminal assault – the landscape past and present[1] the author expressed the view that “a person who intentionally or recklessly infects a sexual partner with HIV or some other grievous affliction would commit a grave and criminal assault. Consent to the act of sexual intercourse would not amount to consent to the risk of HIV unless the consent was informed by knowledge of the infection and the partner willingly submitted to it”.[2]  If a defendant intends to infect the partner, that is clear enough. But what does “recklessly” mean in this context?

2       The question has caused much discussion recently in England, although there is a statutory background which is of course quite different. In England those who have been convicted of recklessly transmitting HIV have been prosecuted under s.20 of the Offences against the Person Act 1861 for recklessly inflicting grievous bodily harm.[3] The form of recklessness required by s.20 is subjective; the accused must have been aware of the risk of causing harm to another but decided to take that risk. The issue being debated in England is whether it is necessary to prove that the accused is actually aware that he (or she) has HIV, or if it is sufficient that the accused is aware that he may be infected. Some commentators[4] argue that in order to prove subjective recklessness actual knowledge of the HIV positive status is required. Others[5] contend that an individual, having engaged in practices that he knows to have involved the risk of transmission, can be aware of the risk of infecting another without being actually aware that he is infected.

3       In R v Dica[6]the accused knew that he was HIV positive and the issue of actual knowledge as against something less was not considered. Judge LJ did however cite with apparent approval a passage from an article by Professor Spencer which suggested that actual knowledge was not required. The Professor stated –

“To infect an unsuspecting person with a grave disease you know you have, or may have, by behaviour that you know involves a risk of transmission, and that you know you could easily modify to reduce or eliminate the risk, is to harm another in a way that is both needless and callous. For that reason criminal liability is justified unless there are strong countervailing reasons. In my view there are not.”[7]

4       Presumably, therefore, even on this broader view of the meaning of recklessness, there must be some evidence that the accused was aware of the risks of conducting himself in the manner in which he did conduct himself. If he was quite unaware of the risks involved in unprotected sexual activity, or of the ways in which the HIV virus can be transmitted, he could not be said to have been reckless. From a practical viewpoint the difficulties of proving recklessness in the absence of proof of actual knowledge may be quite great.

5       What then is the position in Jersey? In general, intent is not an ingredient of the offence of grave and criminal assault. If a man causes grievous injury to another, unless the circumstances are such that he can plead accident or some other general defence, he will be guilty of grave and criminal assault whatever his intentions may have been. The example given by Whelan of the man who intends to throw the contents of his glass over the victim, but who accidentally lets slip the glass thereby causing serious injury, is nonetheless guilty of grave and criminal assault.[8] The absence of intent to cause that particular injury will be a matter of mitigation and not of exculpation. Thus, as a matter of generality, it might be said that a man who infects his partner with HIV is prima facie guilty of grave and criminal assault.

6       Does it follow that a man, who is ignorant of the fact that he is HIV positive and who engages in consensual sexual intercourse with a woman thereby infecting her, commits a grave and criminal assault? Suppose that the man has contracted the infection “innocently” by marital intercourse with a promiscuous former wife, or through a blood transfusion. Presumably not. If the passing of the infection to the woman was accidental in the sense that that the man had no knowledge of the risk that he might cause harm to her, there can have been no recklessness. Strict liability would not apply in these circumstances.

7       These interesting questions have yet to be considered by the Jersey courts.

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