R v Dica [2004] 3 All ER 593

KEY POINTS

• The deliberate infection or spreading of HIV does not equate to intent to cause grievous bodily harm.

• By consenting to unprotected sexual intercourse, the complainants willingly accepted the possibility of infection, along with other inherent risks like unintended pregnancy. Making the consensual acceptance of these risks a criminal offence is unattainable.

FACTS

• The defendant, Mr. Dica, was charged with two counts of causing grievous bodily harm under section 20 of the Offences Against the Person Act 1861.

• Mr. Dica was aware that he was HIV positive, and he engaged in sexual activities with two women without disclosing his HIV status to them. Both women contracted the virus after their sexual encounters with Mr. Dica.

• The key issue in the case was whether Mr. Dica's failure to disclose his HIV-positive status to his sexual partners could constitute the infliction of grievous bodily harm under the legal definition.

JUDGEMENT

• Appeal allowed. 

COMMENTARY

• By emphasising that consenting parties knowingly undertake the risk of infection and other inherent dangers, the court highlights the limitations of imposing criminal liability for consensual behaviours involving potential harm.

ORIGINAL ANALYSIS

• Defendant 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 Defendant was convicted of GBH (grievous bodily harm) 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 Defendant 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. 

RELATED CASES

• R v Brown

• R v Clarence

• R v R

• R v Konzani