D knew he had HIV and had unprotected sex with 2 women, passing on HIV to them. The judge directed that had the women consented, there would still be no defence, since nobody has the capacity to consent to GBH, citing the decision in Brown (see Ashworth). Therefore a question of consent does not arise and D was convicted of GBH under s.20. CA ruled that if the women decided to take the risk of being infected with HIV, then this would be a defence, and therefore the judge was wrong to say that the question of consent was immaterial. CA therefore ordered a retrial, where D was again convicted. In CA: Clarence (which was a similar case) has been undermined as it had stated that marital rape was impossible, and subsequent rulings, such as R v R have undermined that. THE QUESTION OF CONSENT: Consent is not a defence where the activity is illegal e.g. street fighting, prize fighting etc. but it is a defence to legal harm, e.g. boxing. Sex is not illegal and, where it may produce harm, the law may nevertheless not provide sanction. Where, for example, the man has HIV but the couple are desperate for a baby/ are RC, surely the law would not there intervene, since the woman is entitled to take the risk. It is obviously different to a situation in which the man failed to inform his wife that he was HIV positive.