1. No category

GRIFFITH COLLEGE DUBLIN
Assignment Cover Sheet
Result Awarded: ____ % Late Penalty: ____ % Overall Result: 67 %
Student name:
Joanna Krasuska
Student number:
2823306
Course:
LLB(Hons) in Irish Law Stage/year: 2nd semester/ 2nd year
Subject:
Criminal Law
Study Mode:
Full time: _____
Lecturer Name:
Elaine Finneran BCL, LLM
Assignment Title:
(please see page 2)
No. of pages:
14
Additional Information:
Part time: x
(e.g. number of piece submitted etc.)
1 piece submitted,
Word count: 2704 (excluding bibliography and foot notes)
Date due:
24th of March 2014
Date submitted:
20th of March 2014
Academic Misconduct:
I understand that I will be subject to the penalties imposed for the breaches of academic conduct as
defined in the College’s Academic Misconduct Procedure (QA J4).
Signed: Joanna Krasuska
Date: 14-March-2014
LATE ASSIGNMENTS: Penalisation for late assignments is 5% per day. Any assignment submitted after
the designated hours on the submission day will be considered a late assignment and will be penalised at 5%.
It will therefore be 10% if the assignment is handed in the day after the submission date. If assignments are
more than 1 week late, they are not accepted and will be recorded as not having been presented
1|Page
Assignment Title
[s.20 may be charged if the accused ] “knowing that they are suffering HIV or some other
serious sexual disease, recklessly transmit it through consensual sexual intercourse, and
inflict grievous bodily harm on a person from whom the risk is concealed and who is not
consenting to it.”
Judge LJ, R v Dica [2004] EWCA Crim 1103, at 59.
In this quotation Lord Justice Judge was commenting on the ability to prosecute a person for
transmitting HIV during sexual activity. In light of this statement discuss the criminalisation
of the transmission of HIV in England and Wales, including the potential for such
prosecutions pursuant to the provisions of the Non-Fatal Offences Against the Person Act
1997. [Word Limit: 2500 – 3000 words]
2|Page
Bibliography
Table of Cases
Ireland
i.
People (DPP) v Murray [1977] IR 360
ii.
McGee v AG [1971] 8,9 June 1972 31 July 1972 6-9 Nov. 1973 19 Dec. 1973
iii.
Ryan v Attorney General [1965] 1 IR 294
England and Wales
iv.
R v. B [2007] 1 WLR 1567
v.
R v Brown [1994] 1 AC 212
vi.
R v Cuerrier [1998] 2 SCR 371
vii.
R v Clarence [1888] 22 QBD 23
viii.
Regina v Mohammed Dica [2005] EWCA Crim,
ix.
R v Konzani [2005] EWCA Crim 706
x.
R v Dica [2005] EWCA Crim 2304
xi.
R v Emmett (unreported, 18th of June 1999)
xii.
R v Moloney [1985] 1 All ER 1025
xiii.
R v Hancock and another [1986] 1 All ER 641
xiv.
R v Nedrick [1986] 3 All ER 1 Court of Appeal, (Criminal Division)
xv.
R v Woolin [1999] AC 82
xvi.
Hyam v Director of Public Prosecution [1974] 2 All ER 41
xvii.
R v Kouassi Adaye [2004] Unreported
xviii.
R v Cunnigham [1957] 2 All ER 412
Other Jurisdictions (Canada)
i.
R v Cuerrier [1998] 2 SCR 371
Table of Legislation
i.
Constitution of Ireland, Article 40.3.1
3|Page
ii.
Non-Fatal Offences Against the Person Act 1997
iii.
Sexual Offences Act 2003 (England)
iv.
Offences Against the Person Act 1861
Primary Sources – Textbooks
v.
Criminal Law, Peter Charleton, P.A. McDermott, M. Bolger, Tottel Publishing Ltd 2006
vi.
Criminal Law in Ireland, Liz Campbell, Shane Kilcommins, Catherine O’Sullivan, Clarus
Press 2010
vii.
Smith and Hogan Criminal Law, David Ormerod, Oxford University 11th Edition, at 599-600
Secondary Sources - Articles and Academic Commentary
i.
Canadian HIV/AIDS Legal Network, HIV/AIDS Policy & Law Review, The criminalisation of
HIV transmission in England and Wales: question of law and policy; Volume 10, Number 2,
August 2005
ii.
After Cuerrier: Canadian Criminal Law and the Non-Disclosure of HIV-Positive Status;
Richard Elliot, Canadian HIV AIDS Legal Network
iii.
Criminal Law and the Sexual Transmission of HIV: R v Dica, Matthew Weait, The Modern
Law Review Limited 2005, 68(1) MLR 121-134
iv.
Butterworths PI Litigation Service Bulletin/Bulletin 75/11 Letter from America
v.
http://www.aidsmap.com/Timeline-of-developments-in-the-criminalisation-of-HIV-and-STItransmission-in-the-UK/page/1504201/ accessed 10th of March 2014
vi.
http://www.cps.gov.uk/legal/h_to_k/intentional_or_reckless_sexual_transmission_of_infectio
n_guidance/ accessed 10th of March 2014
vii.
S Ramage, ‘The Criminal Offence of Causing Infection of HIV Virus’
viii.
H Carter, ‘Bigamist Passed HIV Recklessly’ (The Guardian, 13th January 2004)
ix.
http://www.guardian.co.uk/uk/2004/jan/13/southafrica.aids accessed 14th of March 2014
x.
http://news.bbc.co.uk/1/hi/england/merseyside/3389735.stm accessed 14th of March 2014
xi.
http://www.oireachtas.ie/parliament/media/Report-on-Social-Media-July-2013-Website.pdf
accessed on the 14th of March 2014 [Houses of the Oireachtas, Joint Committee on Transport
and Communications, “Report Addressing the Growth of Social Media and Tackling
Cyberbullying”].
xii.
http://www.echr.coe.int/Documents/Convention_ENG.pdf accessed on the 14th of March
2014
xiii.
http://www.hivlawcommission.org/index.php/workingpapers?task=document.viewdoc&id=90 accessed on the 16th of March 2014
4|Page
xiv.
http://www.jwatch.org/id200603100000002/2006/03/10/what-s-optimal-initial-art-regimenhiv accessd on the 16th of March 2014
xv.
http://news.bbc.co.uk/2/hi/uk_news/scotland/north_east/8469238.stm accessed on the 16th of
March 2014
xvi.
http://napwa.org.au/living-with-hiv/hiv-and-the-law/criminalisation-of-hiv-transmission
accessed on the 16 of March 2014
xvii.
http://www.aidsfreeworld.org/planetAIDS/Transmission.aspx accessed on the 16th of March
2014
xviii.
http://www.legislation.gov.uk/ukpga/2003/42/section/74 accessed on the 20th of March 2014
5|Page
Introduction
The purpose of this article is to investigate different approaches to treatment of the
consensual intercourse involving a seropositive person who withholds their HIV status.
Firstly, comparison of the pertinent legislation in the common law jurisdiction will be
undertaken, namely Offences Against the Person Act 1861 and Non-Fatal Offences Against
the Person Act 1997. To counterbalance the existing legislation that justifies criminalisation
of reckless and intentional infliction of HIV, right to privacy will be considered in the light of
decision in McGee v AG1. Therefore, in order to assess whether the current statutory
provision are sufficient to protect the infected person and the person engaging in unprotected
sexual act with a HIV positive individual, a multimodal approach needs to be taken to
illustrate the current approach to tackling the social issue. As is seen from the current
decisions, modern approach is to broaden the scope of the existing legislation to include
criminalisation of reckless or harmful behaviour and acts, rather than addressing the problem
through awareness, education and health consciousness. An example similar approach can be
seen in the current bill for the criminalisation of cyber bullying,2 where parents are calling for
legislation to be enacted to combat such form of wrongdoing. Although in their view
legislation would act as a deterrent it is education that is the key in prevention of bullying and
cyber bullying rather than criminalisation of individuals before they reach the age of
majority. Recent judicial decisions will be scrutinised in regard to the existing approach to
criminalisation of reckless and intentional transmission of HIV. The lack of precedent in
Ireland will allow the opportunity to explore other common law jurisdictions like England,
Wales, Canada, Scotland and Australia which have persuasive authority in the courts of the
Republic of Ireland.
Legislation
Section 4 of the Non-Fatal Offences Against the Person Act 1997 provides that “A person
who intentionally or recklessly causes serious harm to another shall be guilty of an offence.”3
Further section 13(1) states that “A person shall be guilty of an offence who intentionally or
recklessly engages in conduct which creates a substantial risk of death or serious harm to
1
McGee v Ireland [1971] 8,9 June 1972 31 July 1972 6-9 Nov. 1973 19 Dec. 1973
http://www.oireachtas.ie/parliament/media/Report-on-Social-Media-July-2013-Website.pdf accessed on the
14th of March 2014 [Houses of the Oireachtas, Joint Committee on Transport and Communications, “Report
Addressing the Growth of Social Media and Tackling Cyberbullying”].
3
http://www.irishstatutebook.ie/1997/en/act/pub/0026/sec0004.html#sec4 accessed on the 08th of March 2014
2
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another.”4 As suggested by Charleton,5 those provisions of Irish legislation, similarly to
section 20 of English Offences Against the Person Act 1861, have the potential to capture the
act of infection should it be carried out maliciously and with intention. Therefore if an
infected person has a cause of action resulting from recklessness and intention of his or her
sexual partner, it will be dealt in Irish courts on case to case basis.
This possibility of conviction derives from decisions in the neighbouring jurisdictions of
England and Wales, which relies on section 20 of the 1861 Act, recognises that reckless or
intentional infliction of grievous bodily harm extends to infecting a consensual but unaware
partner with a Sexually Transmitted Infection.6,7 Additionally, constitutional protection of the
bodily integrity of every citizen8 affords further defence to people exposed to such acts of
malice.
Art. 40, 3, 1 and 2, of the Constitution is a right to bodily integrity and any
interference with bodily constitution without the consent of the person concerned
constitutes an infringement of this right to bodily integrity.9
Also the Article 8 of European Convention on Human Rights secures the right of a
democratic state to interfere in order to defend health or morals.10 On the other hand the same
provision protects privacy, to which the seropositive person is also entitled, unless intention to transmit the virus is proven. Countries like the USA, Russia, Australia, China,
and others11 established specific laws criminalizing reckless transmission of HIV. Recklessness and Intention
Recklessness can be defined as unwarranted or advertent risk taking. Therefore a person acts
recklessly with respect to a situation when is aware that a risk exists or will result from an
action and nevertheless takes the risk. Failure to consider a risk – as obvious as it might be –
does not amount to recklessness, however being aware of a risk but taking the approach of
4
http://www.irishstatutebook.ie/1997/en/act/pub/0026/ accessed on the 10th of March 2014 - Non-Fatal
Offences Against the Person Act 1997
5
Criminal Law, Peter Charleton, P.A. McDermott, M. Bolger, Tottel Publishing Ltd 2006, at 632-633
6
Regina v Mohammed Dica [2005] EWCA Crim 2304
7
Canadian HIV/AIDS Legal Network, HIV/AIDS Policy & Law Review, The criminalisation of HIV
transmission in England and Wales: question of law and policy; Volume 10, Number 2, August 2005
8
Constitution of Ireland, Article 40.3.1
9
Ryan v Attorney General [1965] 1 IR 294
10
http://www.echr.coe.int/Documents/Convention_ENG.pdf accessed on the 14th of March 2014
11
http://www.aidsfreeworld.org/planetAIDS/Transmission.aspx accessed on the 16th of March 2014
7|Page
irresponsible disregard to the result of taking the risk in question does amount to
recklessness. This definition has the potential to be applied both to the seropositive person as
well as uninfected individual engaging in unprotected sexual intercourse.12
“A person acts recklessly with respect to a material element of an offence when he
consciously disregards a substantial and unjustifiable risk that the material element
exists or will result from his conduct.”13
Whether a risk taking is justified or not is measured by an objective statndard and depends on
social implications of the activity in question.14 Consequently a seropositive person engaging
in unprotected sexual intercourse creates a very severe social implication as the infliction of
HIV on a person affects not only the individual but also their family.15
Finally to ascertain if the defendant had acted recklessly it is necessary to establish what was
his state of mind at the time of involving in the act and what objective resulted in taking the
unjustified risk causing harm. Campbell outlines three possibilities:16
(i) knew of the risk, but proceeded anyway, or (ii) may not have considered the risk,
but the reasonable person would have; or (iii) may have considered the risk but
mistakenly concluded that there was no risk.
Therefore a HIV positive person aware of being seropositive but nevertheless engaging in an
unprotected sexual intercourse, without revealing this status to the sexual partner, acts with
reckless disregard to the health and life of that person, which falls within the first category.
As stated by Lord Hailsham of St Marylebone at p. 56:
“Where the defendant knows that there is a serious risk that death or grievous bodily
harm will ensue from his acts, and commits those acts deliberately and without lawful
excuse, the intention to expose a potential victim to that risk as the result of those
acts. It does not matter in such circumstances whether the defendant desires those
consequences to ensue or not.”17
12
Criminal Law in Ireland, Liz Campbell, Shane Kilcommins, Catherine O’Sullivan, Clarus Press 2010, at 131
People (DPP) v Murray [1977] IR 360
14
Criminal Law in Ireland, Liz Campbell, Shane Kilcommins, Catherine O’Sullivan, Clarus Press 2010, at 133
15
R v Dica [2005] EWCA Crim 2304
16
Criminal Law in Ireland, Liz Campbell, Shane Kilcommins, Catherine O’Sullivan, Clarus Press 2010, at 133
17
Hyam v Director of Public Prosecution [1974] 2 All ER 41
13
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The question is whether a person acting with reckless disregard in relation to the life or health
of another has the intention to cause such harm. In Hyam intention could have been imposed
by mere probability, however further decisions were based on foresight of virtual certaintly of
a result.18 In Moloney and Hancock foresight of virtual certainty constitutes evidence of the
accused’s intention to harm. In an arson case, R v Nedrick,19 the Court of Appeal concluded
that intention doesn’t have to be proven but may be inferred from the actor’s foresight of
virtual certaintty of consequences. This decision has been reaffirmed in Woolin,20 where Lord
Steyn concluded that intention can be imposed in cases where accussed had been aware of the
consequences of his actions.21
The first category of subjective/advertent recklessness derives from judgment in the
Cunnigham case.22 The court agreed that the defendant acted recklessly and could have
foreseen that damaging gas installation can lead to serious consequences. In the context of
judgment in Cunnigham, the state of mind of a seropositive person who engages in sexual
intercourse despite being aware of the risk but proceeded anyway amount to the highest
standard of recklessness and foresight test. This very standard could be applicable to
seronegative persons in an analogue situtations.
English and Welsh decisions on reckless infliction of HIV
Despite media commotion in 1992, after a man from Cornes has been accused of reckless and
intentional infliction of Human Immunodeficiency Virus on a woman, the Home Secretary
stated in the UK Parliament that he had no plans to legislate to make the deliberate
transmission of HIV a criminal offence. However the following year the Law Commission
proposed changes to include such offence into the operating statute.23 Although no specific
legislation has been enacted so far, the existing 1861 Act has been interpreted in a way to
include such cases.
18
R v Moloney [1985] 1 All ER 1025 and R v Hancock and another [1986] 1 All ER 641
R v Nedrick [1986] 3 All ER 1 Court of Appeal, (Criminal Division)
20
R v Woolin [1999] AC 82
21
Criminal Law in Ireland, Liz Campbell, Shane Kilcommins, Catherine O’Sullivan, Clarus Press 2010, at 129
22
R v Cunnigham [1957] 2 All ER 412 The defendant was convicted under section 23 of the Offences Against
the Person Act 1861 for “unlawfull and maliciously administering a noxious thing so as to endanger life.” The
court have allowed appeal and quashed Cunnigham’s conviction on the basis of misdirection to the jury in
regard to the meaning of the word “maliciously” in the context of section 23.
23
http://www.aidsmap.com/Timeline-of-developments-in-the-criminalisation-of-HIV-and-STI-transmission-inthe-UK/page/1504201/ accessed on the 10th of March 2014
19
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Section 20 of the 1861 Act provides the statutory basis which gave rise to the conviction of
Mohammed Dica24. English courts has departed the same from the decision in Clarence25 and
recognised that assault is not only a direct infliction of physical force, but extends to the
reckless infliction of HIV, which amounts to grievous bodily harm. In Dica’s decision the
court has been able to separate the concept of consent to sexual intercourse from consent to
infection causing grievous bodily harm. Furthermore, the courts have recognised that without
full disclosure there is no true consent. In criminalising reckless infliction of HIV the court
exercised its legal function to protect the society against offences described by section 20 of
1861 Act.26 Lord Justice Judge in passing the sentence held that the defendant has
demonstrated a “cynical disregard” for the consequences of his act despite having knowledge
of his HIV status and the certainty of devastating results of unprotected sexual intercourse.
The learned judge rationalized imposing the maximum sentence available for crimes
described by section 20 stating that “it is difficult to imagine a case of section 20 of greater
seriousness than this”. The application for leave to appeal has been denied.27
Further decisions followed the precedent set in Dica. The issue of consent has been given
consideration in Konzani28. In direction to the jury the trial judge stated that it shall be proven
beyond doubt that the complainant would not engage in a sexual intercourse should the true
HIV status had been disclosed. The purpose of such proof is to establish that the complainant
would not consent to risk of suffering the infection. It has been highlighted by the trial judge
in direction to the jury that such decision would have been undertaken willingly, which
means in full knowledge of all implications that carrying out such risk involves. On appeal
this direction to the jury has been endorsed.29 Two other successful prosecutions considered
convictions of Kouassi Adaye30 and Paolo Matias31 and were upheld on the strength of
section 20 of the 1861 Act. The burden of proof lies with the prosecution and requires that the
defendant inflicted bodily harm and was fully conscious of the consequences.
24
[EWCA] Crim 1103 (05 May 2004), [2004] 3 All ER 593;
R v Clarence [1888] 22 QBD 23
26
Offences Against the Person Act 1861
27
R v Dica [2005] EWCA Crim 2304
28
R v Konzani [2005] EWCA Crim 706
29
http://www.cps.gov.uk/legal/h_to_k/intentional_or_reckless_sexual_transmission_of_infection_guidance/
accessed on the 10th of March 2014
30
R v Kouassi Adaye [2004] Unreported; http://news.bbc.co.uk/1/hi/england/merseyside/3389735.stm
25
accessed 14th of March 2014; http://www.guardian.co.uk/uk/2004/jan/13/southafrica.aids accessed
14th of March 2014
31
Canadian HIV/AIDS Legal Network, HIV/AIDS Policy & Law Review, The criminalisation of HIV
transmission in England and Wales: question of law and policy; Volume 10, Number 2, August 2005
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Question of consent
Accordingly to mentioned judgments in cases that have tried the discussed offence, consent
does not constitute a defence.32
“Without disclosure of HIV status there cannot be a true consent. The consent cannot
simply be to have sexual intercourse. Rather it must be consent to have intercourse
with a partner who is HIV positive. True consent cannot be given if there has not
been a disclosure by the accused of his HIV positive status. A consent that is not
based upon knowledge of the significant relevant factors is not a valid consent.”33
Section 74 provides that “a person consents if he agrees by choice, and had the freedom and
capacity to make that choice”.34 This provisions is designed to emphasize that lack of
objections, struggle or any form of resistance otherwise does not expressly amount to
consent. Consensual agreement to involve in a sexual intercourse must be an informed one,
meaning there cannot be any hidden agenda in the form of sexually transmitted infection like
HIV. 35
In English law, consent to bodily harm is not recognised36 except for medical purposes such
as surgical operation or in contact sports. Lord Justice Judge in considering the difference
between consent to bodily harm and consent to the risk of such harm referred to R v Brown
stating that the decision was correct. Further he held that violent conduct in spite of “private
consensual sexual element to it” is not acceptable. For the same reasons of public policy it is
unacceptable to spread infections, including Sexually Transmitted Infections (STI) like
HIV.37
The courts’ approach to consent does not recognise it as a viable defence for those who harm
others. In R v Emmett38 the court denied the respondent the defence of consent as he set fire
to his partner’s breast with lighter fuel and almost asphyxiated her. The reason for the court’s
32
R v Cuerrier [1998] 2 SCR 371, Regina v Mohammed Dica [2005] EWCA Crim, R v Konzani [2005] EWCA
Crim 706,
33
R v Cuerrier [1998] 2 SCR 371
34
Sexual Offences Act 2003; http://www.legislation.gov.uk/ukpga/2003/42/section/74 accessed on the 10th of
March 2014
35
Smith and Hogan Criminal Law, David Ormerod, Oxford University 11th Edition, at 599-600
36
R v Brown [1994] 1 AC 212
Criminal Law and the Sexual Transmission of HIV: R v Dica, Matthew Weait, The Modern Law Review
Limited 2005, 68(1) MLR 121-134
38
R v Emmett (unreported, 18th of June 1999)
37
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decision has been unacceptably high risk to which he had exposed his partner, similarly to
facts in R v Brown.39
Consent to sexual activity has been considered in R v. B40 where the seropositive defendant
was charged with raping the complainant as he withheld his HIV positive status. He tried to
rely on the defence of consent. The Crown found it applicable to include his HIV status in
evidence. The defendant objection as to the relevance of his HIV status has been disregarded.
The judge ruled that it was important to establish whether the complainant had consented to
the infliction of grievous bodily harm and whether the defendant reasonably believed this was
the case. The defendant was convicted and the Court of Appeal allowed the appeal, as the
court established the consent was limited to the sexual act itself and excluded consent to
infection.
The controversy in criminalising reckless infliction of HIV arose from the dangers of
interfering with personal autonomy. Contrary to the judgment in R v Brown, the court
considered the invasive nature of criminalising individuals who engage in consensual sexual
intercourse. Such procedure would invade the privacy of sexual relationships, whether those
involved risk of contracting and sexually transmitted infection or not. Conclusively, it would
be contrary to the accepted social standards as it is generally accepted that consenting adults
are allowed to take risk in regard to their health, like being the presence of a their child sick
with contagious disease and nevertheless having physical contact with that child.
Consequently the same standard should apply in the context of sex life.41
This approach however seems not applicable in the context of reckless and intentional
transmission of HIV onto an unware partner. Despite a consent partner does take a risk, the
seropositive person should still be obliged to disclose their HIV positive status, so the taking
of the risk is fully informed.
Other jurisdictions (Canada, Scotland, Australia, USA)
The ruling in R v Dica has been preceded by the 1998 decision of the Supreme Court of
Canada in R v Cuerrier.42 The Supreme Court held that where sexual act carries a “significant
risk of serious bodily harm,” the seropositive person has a duty to reveal their status. None39
R v Brown [1994] 1 AC 212
R v. B [2007] 1 WLR 1567
41
R v Dica [2005] EWCA Crim 2304
42
R v Cuerrier [1998] S.C.J. No. 64 (SCC)
40
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disclosure may amount to fraud, which in turn renders a sexual partner’s consent to the
engagement in a sexual activity, consequently making the otherwise consensual intercourse
an assault as defined by Canadian criminal law.43 On the basis of non-disclosure prosecution
tooks places in Scotland.44 In countries where criminal law varies from region to region, such
as the United States of America and Australia, prevalent inconsistency and variation in the
scope, reach and implementation of criminal law exists, resulting in irregularity and
confusion for people living with HIV.45,46
Conclusion
In favor of criminalization, sexual consent and right to privacy of sexual relationship were
not an issue before for the courts to interfere47. Reckless disregard to ones health and life can
be treated as a two-way argument, serving both defence and prosecution. Criminal courts
trying allegations of exposure are generally interested in facts of exposure and not on the
degree risk but whether necessary mechanical barrier has been provided by the persons
involving in consensual sex, also whether the HIV positive individual has led the consensual
partner to believe that he or she was seronegative. Also this argument may become even more
persuasive given the recent HPTN 052 clinical trial that showed ART48 to be 96% effective in
reducing HIV transmission in couples where one partner has HIV.49
The guidance for prosecutors enclosed in the Swiss Statements provides that:
“There may be varying degrees of infectiousness during the cycle of infection and
during any anti-retroviral therapy. Therefore the scientific evidence is extremely
helpful here and it should also include specific information on the degree of
infectiousness of the suspect at the time of the alleged offence. Prosecutors should
consider the need for scientific evidence namely clinical and epidemiological
evidence regarding duration of infection, the possible incubation period of the
43
After Cuerrier: Canadian Criminal Law and the Non-Disclosure of HIV-Positive Status; Richard Elliot,
Canadian HIV AIDS Legal Network
44
http://news.bbc.co.uk/2/hi/uk_news/scotland/north_east/8469238.stm accessed on the 16th of March 2014
45
http://napwa.org.au/living-with-hiv/hiv-and-the-law/criminalisation-of-hiv-transmission accessed on the 16 of
March 2014
46
http://www.hivlawcommission.org/index.php/working-papers?task=document.viewdoc&id=90 accessed on
the 16th of March 2014
47
R v Brown [1994] 1 AC 212
48
Antiretroviral therapy - http://www.jwatch.org/id200603100000002/2006/03/10/what-s-optimal-initial-artregimen-hiv accessd on the 16th of March 2014
49
http://www.hivlawcommission.org/index.php/working-papers?task=document.viewdoc&id=90 accessed on
the 16th of March 2014
13 | P a g e
infection and a strong likelihood that the suspect infected the complainant as opposed
to any possibility that the complainant may have infected the suspect.”50
HIV awareness education should be a primal deterrent rather than criminalization. In cases of
prosecutions line between intention and lack of knowledge should be drawn.
50
http://www.hivlawcommission.org/index.php/working-papers?task=document.viewdoc&id=90 accessed on
the 16th of March 2014
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