ABSTRACT
For those working in the criminal justice system – whether police, prosecutors, lawyers or judges – the concept of harm is unproblematic. Every criminal offence contains within it an actus reus, sometimes referred to (inaccurately) as ‘guilty act’, part of which comprises the conduct or consequence (or both) that must be established if the defendant is to be convicted of the offence in question. Whether or not the actus reus is established is a question of fact for determination by the jury or magistrates hearing the case. Thus, in the crime of theft, the prosecution must satisfy the tribunal of fact that the defendant appropriated property belonging to another, in murder that he unlawfully killed a human being, in rape that he unlawfully penetrated with his penis the vagina or anus of another person who at the time was not consenting to the penetration. The same is true in the context with which we are concerned, although HIV infection exists not as a specified harm in the criminal law but instead is treated as an example of a more general kind. In order to establish criminal liability for the transmission of HIV (whether intentionally or recklessly), the prosecution must prove that the defendant unlawfully caused another person to suffer grievous bodily harm.
