Published: Wed, 07 Mar 2018
R v Adaye (2004) unreported
Should the reckless and/or intentional transmission of HIV be deemed a criminal offence, and if so, which offence.
The defendant had been warned by a doctor in Africa who had been treating him for sexually transmitted infections generally that he was at high risk of having already contracted HIV and thus ought take a medical test to determine whether he was HIV positive. The defendant failed to do so and proceeded to recklessly engage in sexual intercourse with another, resultantly giving them HIV.
Can a person be charged with having recklessly transmitted HIV to another where they did not have actual knowledge of their HIV positive status, but rather ‘second degree’ knowledge or wilful blindness as to the matter.
The defendant pleaded guilty to all charges brought against him and the Court found that one did not require actual knowledge, but rather it sufficed that the defendant had been aware that they ‘knew it was highly likely, if not certain’ that they were HIV positive, as per Lynch J. This judgment is considered informative in supplementing other recent case law on HIV transmission, most notably R v Dica (Mohammed) (2004) EWCA Crim 1103, which confirmed that an individual can be found guilty of grievous bodily harm under s. 20 for recklessly transmitting HIV to another via sexual intercourse, and that the victim’s consent to intercourse could not be equated with consent or acceptance of a risk of infection. The impact of R v Adaye may subsequently be that a charge of GBH may be brought where the defendant has only ‘second degree’ knowledge of the harm they may be causing.
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