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R v Dica [2004] EWCA Crim 1103

Criminal – Assault Inflicting Grievous bodily harm – Transmitting disease through consensual sexual intercourse

Facts:

The defendant, Mohamed Dica was charged with inflicting two counts of grievous bodily harm under s 20 of the Offences against the Person Act 1861. The defendant was charged on the basis that while knowing he was HIV positive, he had unprotected sexual intercourse with two women who were unaware of his infection. Both women were infected with HIV.

Issue:

The question for the court was whether the complainants were consenting to the risk of infection with HIV when they consented to sexual intercourse with defendant. The court found that given the complainants had consensually agreed to unprotected sexual intercourse, they were therefore accepting the risk of such acts. 

Held:

Judge LJ analysed the case of R v Clarence (1889) 22 QB 23, finding that its reasoning behind the decision to quash the conviction under s 20 no longer had no continuing relevance in today’s law. R v Clarence had not considered the issue of consent because consent to sexual intercourse was assumed to have been given at the beginning of marriage. The court distinguished a number of cases where sexual violence had been consented to but had found to be unlawful given its nature and subsequent harm caused to the participant. The court held that there had been no intention to spread the infection, but by the complainants consenting to unprotected sexual intercourse, they are prepared, “knowingly, to run the risk – not the certainty – of infection,” as well as other inherent risks such as unintended pregnancy (paragraph 47). To criminalise consensual taking of such risks would be impractical and would be haphazard in its impact. The consent to risk provided a defence under s 20, resulting in the conviction being quashed.


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