R v Dica

[2004] EWCA Crim 1103

Independent editorial summary — not the official judgment. Read the full judgment via the source link.

This page mainly applies to England and Wales. Scotland and Northern Ireland may have different rules — check the jurisdiction before relying on this information.

Ratio Decidendi

A person who recklessly transmits a serious sexually transmitted disease (HIV) to a sexual partner, knowing they are infected and without disclosing their condition, can be convicted of inflicting grievous bodily harm under s.20 of the Offences Against the Person Act 1861. Consent to sexual intercourse is not consent to the risk of infection where the complainant was unaware of the defendant's condition.

Facts

Dica, who knew he was HIV-positive, had unprotected sexual intercourse with two women without disclosing his condition. Both women contracted HIV. He was charged with inflicting grievous bodily harm contrary to s.20 OAPA 1861.

Judgment Summary

The Court of Appeal held that the reckless transmission of HIV is capable of amounting to inflicting grievous bodily harm. Judge LJ distinguished the case from R v Brown [1994], holding that consent to sexual intercourse did not equate to consent to the risk of contracting a serious disease where the complainant was ignorant of the risk. However, if a complainant knew of the defendant's condition and consented to the risk, that would be a valid defence. The conviction was quashed on other grounds and a retrial ordered.

Key Quotes

"In this context, Clarence has no continuing relevance. Moreover, to the extent that Clarence suggested that consensual sexual intercourse of itself was to be regarded as consent to the risk of consequent disease, again, it is no longer authoritative."
— Judge LJ at [59](verbatim, verified against the judgment)

Subsequent Treatment

Followed

Applied in R v Konzani [2005] where the Court of Appeal confirmed that willing consent to the risk of infection (not merely consent to intercourse) is required for a valid defence.