R v B  1 WLR 1567
Whether HIV status relevant to consent to sex
The defendant was accused of raping a victim outside of a nightclub. After his arrest, the defendant informed the custody officer that he was HIV positive, and had not told the victim of this prior to them having intercourse. This information was adduced by the prosecution at his trial for rape, and the judge directed the jury that the defendant’s HIV status was relevant to whether the victim had the freedom and capacity to consent to the intercourse. The defendant was convicted of rape.
The defendant argued that his HIV status was not relevant to sexual consent, and so should have been excluded from evidence as unduly prejudicial under s.78 of the Police and Criminal Evidence Act 1984.
The rape conviction was quashed and a retrial ordered. The Court of Appeal held that a defendant’s HIV status is not relevant to whether a victim has freedom or capacity to consent to a sexual act. It therefore should have been excluded as unduly prejudicial. The key question in a sexual offences case whether the victim consented to the sexual act, and not whether they consented to the sexual act with a HIV positive person.
Rather, the Court noted that the defendant’s HIV status is only relevant to criminal offences stemming from the harm which the disease causes the victim. For example, transmission of HIV during consensual sex with an unwitting victim would still amount to the offence of inflicting grievous bodily harm under the Offences against the Person Act 1861. This is because the victim would only have consented to sex, and not to the risk of transmission of disease, if they were unaware of their partner’s HIV status.
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