I could make this a poll, but there'd be too many choices...

[lovingboth]

The law in (edit!) England & Wales used to be absolutely clear: STI infection during consensual sex was not assault, even when the infection was deliberately concealed from the partner.

But in the past couple of years, there have been three successful prosecutions of men for sexual transmission of HIV. They're going through various retrials and appeals, but the basic question remains:

Should sexual transmission of HIV be a criminal offence?

What about when someone lies about their HIV status in order to get their partner to consent to unprotected sex?

Comments

[zotz]

The law in the UK used to be absolutely clear

It did?

This paper certainly talks about the law and "its current confused state" (this as of 1998).

[lovingboth]

They mention 'Clarence', but don't - IMV - make enough of it:

Husband doesn't tell his wife he's got the clap, she consents to sex, she gets it, she says she'd never have consented if she knew, and he's done for assault. Not guilty, on appeal.

To me, and the Law Commission, it was absolutely clear.

[zotz]

Issues of presumed consent due to marriage were viewed rather differently in 1888. Are you entirely sure that a test case today would be regarded as open and shut? After all, you were allowed certain other things within marriage then that you're not now.

[lovingboth]

There's been a whole series of cases that confirm the basic principle.

To pick one example from the 1990s which refered to Clarence: woman consents to sex after having been promised a) she'll be paid afterwards and b) he'll wear a condom. Neither happen and man admits he never intended either. Verdict, on appeal, not guilty.

[zotz]

And yet the paper cites arguments that it was originally wrong, and the basic thrust about marital consent has been totally undermined by recent developments. It doesn't sound like a clear legal situation to me. It sounds more like a precedent just waiting to be overturned.

[mhw.livejournal.com]

Should sexual transmission of HIV be a criminal offence?

Not unless the transmission of any other virus is also a criminal offence.

What about when someone lies about their HIV status in order to get their partner to consent to unprotected sex?

As above - not unless lying about anything else is also a criminal offence.

And, honestly, ceteris paribus anyone who consents to unprotected sex, regardless of who says what, can hardly claim, this far on, not to know what the risks of what they're doing are.

[valkyriekaren.livejournal.com]

But if someone says "I've been tested recently, I'm definitely OK - why, no, I don't have the piece of paper on me, but I'll show it to you on our next date" - is that distorting the truth enough to make the sex not genuinely consensual?

[mhw.livejournal.com]

Why would anyone in their right mind believe a bit of paper anyway, given what one can readily manufacture with Photoshop and a decent printer?

When did the advice, which used to be what was suggested, that one should consider one's partners to be positive wrt HIV, herpes and anything else regardless go away?

[zotz]

The existence of that advice probably has little to do with what will fly legally. People have many reasons (some of them very reasonable) to trust other people, and sadly it's the sort of issue courts have to deal with quite regularly in other situations.

[elfgeek.livejournal.com]

I can think of at least one group of ppl who are more prone to being conned into 'consenting' to unprotected sex or ppl who don't quite have the maturity to make that informed decision - young ppl under the age of 21. Also especially those who have taken drugs/alcohol of various types (think student party involving 17/18 year olds).

[tallis-ryhope.livejournal.com]

yes, sexual transmission of hiv should be a criminal offence, surely the carrier has a responsibility to disclose if they are going to engage in unprotected sex.

as with other crimes that involve victims and perpetrators, relying on conscience to dictate correct behavious isn't enough, unfortunately we need other deterrants.

[uran.livejournal.com]

Any transmission of STIs/viruses should be an offence, in my view.
Although just about impossible to enforce without advanced testing techniques that would cost too much to really pursue, it'd make those bastards keep their trousers on for a change.
Even a bit of paper saying that you're 'clean' doesn't mean much, as you could have gone out that morning, after the test came back clean, had sex with god-knows-who with god-knows-what and contracted something and passed it on to a person trusting the bit of paper that afternoon. Bad bad bad. Sigh. If only we were programmed NOT to shag anything that looks twice at us.