The issue of non-disclosure of HIV-positive status to a partner before engaging in sexual intercourse is addressed in criminal law within two contexts.¹ It falls under section 1 of the Sexual Offences Act 2003² and section 20 of the Offences Against the Person Act 1861.³ The debate surrounding non-disclosure of HIV status centers on the feasibility of categorizing this behaviour within the scope of these offences.

The case of R v Dica⁴ primarily examines the implications of non-disclosure of HIV status, particularly concerning its effect on consent to intercourse. Judge LJ concluded that the defendant's ignorance of HIV-positive status ruled out liability for rape, clarifying that it did not pertain to the complainant's consent to sex. He also stated that consent could serve as a valid defence to an offence under s20 OAPA for recklessly transmitting HIV through sexual intercourse.⁴

However, from a human rights perspective, I disagree with the notion that ignorance of HIV infection paired with consent to sex constitutes a valid defence, given that intercourse occurred without disclosure of HIV status. I oppose the view that consent to unprotected sex equates to consent to the risk of sexually transmitted diseases, as consent to sex does not necessarily imply acceptance of potential bodily harm.

References

1. James Slater, “HIV, trust and the criminal law” (2011) https://uk.practicallaw.thomsonreuters.com/Document/IFE3533C1CA0D11E08568C142323918B9 accessed 11 October 2022
2. Sexual Offences Act 2003
3. Offences Against the Person Act 1861, s.20
4. R v Dica [2004] EWCA Crim 1103