STD

Big Turd

Imagine their was this guy going out with this girl and the girl cheated and has a longterm secret relationship with another man.

Now, the girl gets infected with an STD and passes it on to the guy.

What could the guy do if a situation like that ever happened?

Ericdravancrow

Who can prove they got it from who....it's doesn't really have a definitive marker of who had it first, if it has been going on a while.
But if you told a person, you gave them a std and they refused to be treated and then knownly spread it, well that's different....but without proof it wouldn't even be entertained by a Judge...unless of course we are talking about a current news article.<<Mod deletion>>

Big Turd

OK, what if the guy had been tested at the start of the relationship and was all clear and the girl found out from the man she was having the affair with that their was a possibility but she was to embarrassed to follow it up.

Plus I think some STDs change in a detectable way as they pass from person to person that it is now possible to tell who gave it to who.

Pat Mustard

It might assist legal discussion if it was given that person A infected person B with the sexually transmitted infection (STI), as a matter of fact.

Then a question would arise as to whether A is liable in damages to B for personal injury etc., on the basis of negligence or other cause of action.

Just a suggestion.

Peregrinus

Passing on an infectious disease is not, generally, a crime or an actionable wrong.

If I bravely struggle into work while suffering with an infectious virus and, as a result, four of my colleagues are laid low the next week neither my colleagues nor my employer can sue me. The risk of contracting an infectious disease out of common social interactions is just one of the hazards of life.

And sexual/romantic relationships are a common social interaction.

That's not to say that additional facts or circumstances might not result in a cause of action. If I assure you that I have been tested and am clean, and as a result you agree to engage in unprotected sex with me when otherwise you would have used a condom, and the truth is that I have been tested and told that I am infected and should not engage in unprotected sex, you might have a case against me for the tort of deceit. But if I don't actually know that I'm infected, or if you simply assume without asking that I am clean and/or am being sexually faithful to you, I don't think that would be enough.

hullaballoo

Intentionally passing on a life-threatening disease is endangerment imo.

Robbo

hullaballoo wrote: »

Intentionally passing on a life-threatening disease is endangerment imo.

Would probably nix any consent as well.

hullaballoo

Fraud only vitiates consent when it's as to (a) identity or (b) the nature and quality of the act - so does the nature of the act turn from an act of intercourse to an attempt to endanger the victim?

GM228

So if someone knowingly infects someone what could a criminal charge be?

Could assault apply - i.e intent to cause bodily harm?

hullaballoo wrote: »

Fraud only vitiates consent when it's as to (a) identity or (b) the nature and quality of the act - so does the nature of the act turn from an act of intercourse to an attempt to endanger the victim?

That is certainly the approach of the courts in the UK where GBH is the offence.

hullaballoo

Endangerment is still the most appropriate offence, imo: http://www.irishstatutebook.ie/eli/1997/act/26/section/13/enacted/en/html

I don't know why AGS/DPP don't seem to prosecute for it. Perhaps there is a difficulty because the definition bears a striking resemblance to the definition of murder and the penalty is less severe than causing serious harm?

Peregrinus

Wouldn't endangerment, if it applies, refer to creating the risk? I.e. if you have unprotected sex, knowing yourself to be infected, the offence is committed. If your partner contracts the disease from you that might go to the gravity of the offence, and so to sentence, but it wouldn't be relevant to determining guilt or innocence.

You'd also have to grapple with the question of consent. Suppose your partner doesn't ask if you are infected, so you don't actually lie about it? Would that give you a defence? Suppose your partner doesn't care whether you're infected, or simply assumes your not because you've been together for a while and your partner trusts your fidelity? Suppose your partner knows that you might be infected? (E.g. you're in a non-exclusive relationship)? Suppose your partner knows that you are infected? At what point along this spectrum - if any - do you benefit from a "consent" defence?

GM228

Peregrinus wrote: »

Wouldn't endangerment, if it applies, refer to creating the risk? I.e. if you have unprotected sex, knowing yourself to be infected, the offence is committed. If your partner contracts the disease from you that might go to the gravity of the offence, and so to sentence, but it wouldn't be relevant to determining guilt or innocence.

I think that would be correct, the only real issue in that case would be appropriate sentencing, although it would have to be proved to be a "substantial risk of death or serious harm to another" for the offence to be committed - i.e it would have to be a very nasty disease.

Peregrinus wrote: »

You'd also have to grapple with the question of consent. Suppose your partner doesn't ask if you are infected, so you don't actually lie about it? Would that give you a defence?

A partners consent whilst not knowing about the infection may not apply based on Regina vs Dee [1884] IR 468 if the full facts of the act are not known to either party before the act or as per a UK case R vs Williams [1923] 1 KB 340, consent may not apply when both parties are not fully aware of what the other is doing - i.e intentionally infecting another (assuming that's the aim of the act?), both parties must fully comprehend the nature of the act and the risks they are consenting to.

As per R vs Tabassum [2000] 2 Cr App R 328, consent to sex in itself may not provide a defence as the consent is simply for sex, not the risk of contracting a disease - the consent is for the nature of the act, not the quality of the act.

Consent must be an informed and willing consent to a specific risk, not a general risk as per the case quoted below - i.e there must be an informed and willing consent to a specific risk, the risk of contracting a specific STI/STD rather than simply the general risk of contracting a STI/STD.

In a UK case, in R vs Konanzi [2005] EWCA Crim 706 Mr Justice Grigson deals with the issue of consent:-

If an individual who knows that he is suffering from the HIV virus conceals this stark fact from his sexual partner, the principle of her personal autonomy is not enhanced if he is exculpated when he recklessly transmits the HIV virus to her through consensual sexual intercourse. On any view, the concealment of this fact from her almost inevitably means that she is deceived. Her consent is not properly informed, and she cannot give an informed consent to something of which she is ignorant. Equally, her personal autonomy is not normally protected by allowing a defendant who knows that he is suffering from the HIV virus which he deliberately conceals, to assert an honest belief in his partner's informed consent to the risk of the transmission of the HIV virus. Silence in these circumstances is incongruous with honesty, or with a genuine belief that there is an informed consent. Accordingly, in such circumstances the issue either of informed consent, or honest belief in it will only rarely arise: in reality, in most cases, the contention would be wholly artificial.

So based on the above regarding informed consent or the lack of proper consent could the more serious charges of sexual assault or even rape be applied instead of simply assault or endangerment?

Peregrinus wrote: »

Suppose your partner doesn't care whether you're infected, or simply assumes your not because you've been together for a while and your partner trusts your fidelity?

I think again the above may apply, not caring or being ignorant to a risk can change when someone actually knows a real risk exists, that could change the facts of the act and prevent the consent in the first place. As per Konanzi a person accused of recklessly transmitting an STI/STD could only raise the defense of consent in cases where that consent was a "willing" or "conscious" consent. In other words, the judge distinguished between "willingly running the risk of transmission" and "willingly consenting to the risk of transmission".

Peregrinus wrote: »

Suppose your partner knows that you might be infected? (E.g. you're in a non-exclusive relationship)? Suppose your partner knows that you are infected? At what point along this spectrum - if any - do you benefit from a "consent" defence?

Can consent apply to actions which may cause harm? Isn't consent considered irrelevant like in cases of sadomasochism or bodily harm for example.

As per R vs Dica [2004] 3 ALL ER 593 it was held that a person does not have the legal capability to consent to GBH (which is what the court considered the intentional infection of HIV to be), obviously we don't have GBH anymore in Ireland but could be relevant to other charges relating to infection with informed consent.



Let's add a different angle now to the debate, suppose a couple have protected sex, but the protection fails and one partner is infected. Despite taking precautions can a criminal charge still apply when one partner doesn't know about the infection? I think the protected/unprotected nature is irrelevant as the arguments seem to be based around the knowledge of the infection and how it would affect the informed consent rather than the actual particulars of the act. Even with protection a partner may not consent to sex if they know of the infection for fear of it failing.

GM228

I'll throw this in aswell.

What if someone intentionally infects another and that person then dies as a direct result of the infection? Could a charge of involuntary manslaughter or even murder apply?

With regards a murder charge, it can apply for an intention to cause serious injury aswell as the more obvious intention to kill, so could the consequences of intentionally passing a deadly virus be considered an intent to cause "serious injury"? Could the subjective test required for murder be met?

Peregrinus

Couple of thoughts:

1. The "endangerment" offence (s. 13) complements the "causing serious harm" offence (s.4). If we assume that the particular infection is HIV, and that present a "substantial risk of death" (nothwithstanding the efficacy of anti-retroviral treatment) then infection with HIV is "serious harm" as defined in s.3. Intentionally or reckless exposing someone to the risk of HIV infection would constitute the s.13 offence; intentionally or recklessly transmitting the HIV infection would constitute the s.4 offence.

2. If the infected party used a condom, or took other measures to prevent transmission, I think that would be enough to negative intent or recklessness, so neither offence would be committed.

3. Konanzi does look pretty persuasive on the issue of consent to offences against the person where the particular injury is infection with a serious disease. I don't know if it has been considered in Ireland, but it might very well be followed.

GM228

Peregrinus wrote: »

If the infected party used a condom, or took other measures to prevent transmission, I think that would be enough to negative intent or recklessness, so neither offence would be committed.

Even using protection raises questions on the issue of consent based on the principles of Konanzi and our own case law surrounding the definition of consent.

Could it be possible to bring a serious charge of rape if it was proved the consent didn't apply as consent as opposed to intent would be the appropriate mens rea.

Peregrinus wrote: »

Konanzi does look pretty persuasive on the issue of consent to offences against the person where the particular injury is infection with a serious disease. I don't know if it has been considered in Ireland, but it might very well be followed.

I don't believe Konanzi has been considered or cited in any Irish case, infact I believe there is very little case law on the subject of infection in this jurisdiction.

Peregrinus

GM228 wrote: »

Even using protection raises questions on the issue of consent based on the principles of Konanzi and our own case law surrounding the definition of consent.

No, I (respectfully) disagree. Consent would be a defence, but you don't need to rely on any defence unless the elements of the offence are made out, and one of the elements is that you should have "intentionally or recklessly" inflicted the harm/exposed someone to the risk of harm. But if you used a condom to minimise the chance of transmission then you're clearly not reckless, so the elements of the offence are not made out, so the question of consent doesn't even come up.

GM228 wrote: »

Could it be possible to bring a serious charge of rape if it was proved the consent didn't apply as consent as opposed to intent would be the appropriate mens rea.

It would be possible, but I think problematic, and your chances of success would very much depend on the circumstances. Essentially you'd argue that if you didn't know that I was infected, that lack of knowledge entirely vitiated your apparent consent. But this meets with a couple of objections. First, there are people who will happily have sex with someone, being reckless as to whether they are infected or not. How was I to know that you were not such a person? Particular facts might show that I knew or should have known that you were not such a person - or they might not. Secondly, there's a line of cases about what kind of misconceptions will vitiate consent to sex. If I have sex with you in the dark in the belief that you are my partner, and you know this and take advantage of it, that's rape. But if I have sex with you in the belief or assumption that you are single and you are in fact married, that's not rape. If I have sex with you in the belief or assumption that you are in an exclusive relationship with me, and in fact you are cheating, that's not rape. If I have sex with you in the belief that you are on the pill or using and IUD and you are not, that's not rape. If I have sex with you in the belief that you are of legal age when you're not, that's not rape. So I can be misled about all kinds of circumstances that that mean the sex can have very serious consequences for me that I am unaware of or misled about, and that generally doesn't vitiate my consent and turn the sex into rape. So I don't think it's a slam-dunk that if I have sex with you in the belief or assumption that you are uninfected, and you are in fact infected, that's rape.

That's why the "serious harm" charge is easier to prosecute. The issue there is not consent to sex; it's consent to being exposed to serious harm.

GM228

Peregrinus wrote: »

No, I (respectfully) disagree. Consent would be a defence, but you don't need to rely on any defence unless the elements of the offence are made out, and one of the elements is that you should have "intentionally or recklessly" inflicted the harm/exposed someone to the risk of harm. But if you used a condom to minimise the chance of transmission then you're clearly not reckless, so the elements of the offence are not made out, so the question of consent doesn't even come up.

I agree with what you say above, but the issue of consent I was bringing up was in relation to a possible charge of rape, not intentionally or recklessly infecting someone, you broke it into two seperate quotes dealing with two seperate issues when I meant for them both to deal with the one issue, perhaps it wasn't clear in that regard - may have been better to say as one paragraph!

So I'll revise slightly:-

"Even using protection raises questions on the issue of consent based on the principles of Konanzi and our own case law surrounding the definition of consent. Could it then be possible to bring a serious charge of rape if it was proved the consent didn't apply as consent as opposed to intent would be the appropriate mens rea."

Peregrinus

I'm not following you, GM228 (which may be my problem rather than yours). Can you give me a hypothetical case where someone is charged with rape, and raises a consent defence based on the fact that protection was used?

GM228

Peregrinus wrote: »

I'm not following you, GM228 (which may be my problem rather than yours). Can you give me a hypothetical case where someone is charged with rape, and raises a consent defence based on the fact that protection was used?

I may not be raising the point clearly.

Based on Regina vs Dee, Konanzi and the definition of consent as per DPP vs C [2001] 3 IR 345 which I raised purely for the discussion.

In other words it's the fact that one partner knowingly has a STD/STI and doesn't inform the other that voids the consent, not the issue of whether or not protection is used, that's a seperate issue. In other words a person may not have even consented to protected sex had they known the full facts for fear of failure of the protection. Obviously extremely difficult to prove and unlikely to be an issue, but I'm sure it is not beyond impossible.

As you say it would be full of difficulties and probably near impossible to bring such a charge, but I just threw it in there to see how it went.

Perhaps we will leave it at that as I think you previous post deals with it anyway, and I do hope that nobody is ever unfortunate enough to have to provide us with case law on the issue.

Peregrinus

I think the distinction is that in Konanzi the charge was one of influcthing bodily harm (specifically, HIV infection) so as far as a consent defence went the issue was whether the victim consented to the harm (in the way that someone who takes part in a boxing match consents to the resulting bruises). Konanzi argued that a risk of infection with an STD is inherent in any sexual encounter, so that anyone having consensual sex was also consenting to the risk of infection. He was not successful.

Had Konanzi been charged with rape, the position would have been different. In that case the question would not have been whether the victim consented to infection with HIV, but whether the victim consented to sexual intercourse. Is apparent consent vitiated if you would not have consented, had you known some additional fact? And there is no general rule that it is.

Robbo

It looks like there's a trial ongoing that bring some clarity to the issues postulated in this thread.

Man accused of infecting woman with HIV 'wasn't shocked' when she received diagnosis, trial told.

randomrb

The Uk court of Appeal case of R v B [2006] sets out that not disclosing your HIV status to someone is not rape once the sex is consensual of course however in the UK at least you have a stateable case for Assault causing harm.
There is a similar offence in the Irish system and the test for it is directly or indirectly applying force to another person without their consent causing injury.

Here consent is to the damage itself so there is no reason the courts wouldn't apply it

Samuel T. Cogley

I *think* Edward Mathews BL PhD thesis was on this if anyone is interested in reading it.

Robbo

Convicted.

From an evidential point of view, there seems to have been quite a bit of weight attached to expert evidence that all 3 injured parties had the same sub-type of the virus.