ABSTRACT
The concept of consent is of central importance to criminal liability for the sexual transmission of HIV. This is so because a defendant alleged to have transmitted HIV to a sexual partner may wish to argue in his or her defence (a) that the partner consented either to the transmission itself or to the risk of transmission, or (b) even if there was no such consent, that he believed this to be so. If either defence is successful it will result in an acquittal, even if the defendant admits that he was the cause of his partner’s infection and that he was aware of the risk that transmission might take place. This is because a successful defence of consent serves to render what would otherwise be an unlawful act a lawful one. It is, in effect, a defence which negates the actus reus element of the offence.
