R v. Dica

The Appellant, Dica, was HIV-positive. He engaged in unprotected sexual intercourse with two women. Both women tested positive for HIV subsequent to their sexual encounters with the Appellant. It was not clear whether the women were aware of the Appellant’s HIV status at the time of the encounters.

The prosecution did not argue that the Appellant intended to transmit HIV to the Complainants. Rather, it alleged that he was “reckless” as to whether they might contract the disease. The trial court withdrew from the jury the issue of whether the women knew the Appellant was HIV-positive and thus consented to the risk of transmission of the disease. The trial court held that whether the Complainants knew the Appellant was HIV-positive was irrelevant because they did not have “the legal capacity to consent to such serious harm.” The Appellant was convicted of two counts of causing grievous bodily harm and sentenced to eight years’ imprisonment.

The Court held that lower court erred and that the question as to consent was whether the women were “consenting to the risk of infection with HIV,” not merely to engage in sexual intercourse. The Court held that if the Appellant had concealed his HIV status from the women, their consent to engage in sexual intercourse would not be sufficient in law to constitute a defence to the charge of causing grievous bodily harm; they must have instead consented to the risk of HIV transmission.

The Court next declared that “unless the activity is lawful, the consent of the victim to the deliberate infliction of serious bodily injury on him or her does not provide the perpetrator with any defence.” In the context of sexual relations, the Court held that “violent conduct involving the deliberate and intentional infliction of bodily harm is and remains unlawful notwithstanding that its purpose is the sexual gratification of one or both participants.” The Court however, further held that it does not follow that “consensual acts of sexual intercourse are unlawful merely because there may be a known risk to the health of one or other participant.” The Court noted that risks have “always been taken by adults consenting to sexual intercourse.” The Court stated:

The Court held that if an individual consents to the risk of transmission of HIV during a sexual encounter, it constitutes a defence to a charge of causing grievous bodily harm. The Court thus allowed the appeal and ordered a retrial.

"46. These authorities demonstrate that violent conduct involving the deliberate and intentional infliction of bodily harm is and remains unlawful notwithstanding that its purpose is the sexual gratification of one or both participants. Notwithstanding their sexual overtones, these cases were concerned with violent crime, and the sexual overtones did not alter the fact that both parties were consenting to the deliberate infliction of serious harm or bodily injury on one participant by the other. To date, as a matter of public policy, it has not been thought appropriate for such violent conduct to be excused merely because there is a private consensual sexual element to it. The same public policy reason would prohibit the deliberate spreading of disease, including sexual disease."

"51. The problems of criminalising the consensual taking of risks like these include the sheer impracticability of enforcement and the haphazard nature of its impact. The process would undermine the general understanding of the community that sexual relationships are pre-eminently private and essentially personal to the individuals involved in them. And if adults were to be liable to prosecution for the consequences of taking known risks with their health, it would seem odd that this should be confined to risks taken in the context of sexual intercourse, while they are nevertheless permitted to take the risks inherent in so many other aspects of everyday life, including, again for example, the mother or father of a child suffering a serious contagious illness, who holds the child’s hand, and comforts or kisses him or her goodnight."

“53.... [T]he criminal law should apply only to those whom it can be proved beyond reasonable doubt had deliberately transmitted a disease, intending to cause serious injury. It added “this aims to strike a sensible balance between allowing very serious intentional acts to be punished while not rendering individuals liable for prosecution of unintentional or reckless acts . . .”