Sexual Offences, Consent and HIV

Sexual offences and consent

One of the key factors to consider when trying to establish whether a sexual offence has occurred is consent.

For example if an individual person is forced to have sex with another against their will, i.e. without giving their consent, then the individual who committed the act will be guilty of rape.

Beyond a reasonable doubt

In order for an individual to be found guilty of a sexual offence it is necessary to prove beyond a reasonable doubt that the individual did not consent to the act taking place.

Capacity to consent

In some situations certain individuals will not be deemed to have been able to give consent, i.e. they do not have the capacity to consent. This involves the following individuals:

•       Minors
•       Individuals suffering with mental capacity

In this case it is immaterial to prove beyond a reasonable doubt that consent was not given. In these cases consent is deemed never to be given.

Consent obtained by deception

In certain cases an individual will have consented to the act taking place but this consent was only given due to the actor obtaining this consent by deception.

What is meant by consent by deception?

In the situation whereby an individual has deceived another individual into performing a sexual act consent will be removed when the deception occurs in relation to one of the following:

•       The nature of the Act
•       The identity of the actor

Will a situation whereby an individual does not disclose the fact that they have been diagnosed with HIV fall into one of these categories?

A case in 2006 dealt with the situation whereby an individual had sexual intercourse with the claimant. That individual was HIV positive and failed to disclose this fact to the complainant.

The case came before the Court of Appeal and the question to decide was whether the apparent consent given by the complainant was ineffective as a result of the individual’s failure to disclose his status.

What was the decision of the Court of Appeal in this case?

In this case the Court of Appeal held that a charge of rape could not lie in these circumstances. It was held that where one party to sexual activity has a sexually transmissible disease which is not disclosed to the other party any consent that may have been given to that activity by the other party is not thereby vitiated.

The act will therefore remain a consensual act.

In this case there was no deception regarding either the nature of the act or the identity of the actor. Regardless of the fact that the individual did not disclose the fact that he was HIV positive the claimant was still aware of the act and the actor and had consented to this.

Are there any arguments against this position?

Many people would argue that an individual who intentionally has sexual intercourse with another knowing full well that they are HIV positive and does not disclose this to the other party is committing a malicious act.

There is clear ground to say that the individual would not participate in such an act were they to know of the fact the individual were HIV positive. If this was disclosed that person would be extremely unlikely to engage in consensual sex. It is on these grounds that many feel that it is consent obtained by deception which should vitiate the consent given.

Are there any arguments in favour of maintaining the current position?

There are various issues which would be raised if the position was changed and consent was deemed to be vitiated. Most notably they are as follows:

• The situation where an individual was unaware of the condition themselves
• To make an act criminal in this manner would effectively discourage people from getting tested

The issue therefore remains an extremely delicate one.