The muddy waters of consent: HIV and the unknown

Firstly, I apologise for once again returning to the subject of sex on Legal Leanings. Don’t worry, I’m not fixated with it – it’s just that my ‘leanings’ are as much revision notes for myself as they are an open legal exploration for you.

The news this week from Germany is that Nadja Benaissa, a member of Germany’s biggest-selling girl band, No Angels, has been arrested on charges of sleeping with three men without telling them she was HIV-positive – one of whom has subsequently tested HIV-positive himself. In Germany, the crime of kowingly infecting another with HIV carries a custodial sentence of up to 10 years.

The issue is not peculiar to Germany, however. In Britain, the crime has been effectively ghost-written into the Offences Against the Person Act 1861 through common law as ‘biological grievous bodily harm’, which when obtained through recklesness (i.e. not telling the victim that you are a carrier of the disease before engaging in sexual intercourse with them) is viewed as an offence under s 18 of the OAPA.

Looking in particular at the cases of R v Dica and R v Konzani, a typical defence to the crime would be suggesting that, by consenting to have unprotected sexual intercourse, you are consenting to all the risks associated with it.

The appeals courts, however, rejected this, explicitly stating that consent should be fully-informed, having regards to all the facts. By omitting the fact that he is HIV-positive, a person is not allowing a potential sexual partner to be fully-informed of the facts.

For this reason, and quite rightly so when he has, in effect, signed the victim’s death warranr, a person may be quilty under the Offences Against the Person Act 1861 s 18 of ‘inflicting biological grievous bodily harm through recklessness’.

Well, he could always have used a condom…