ABSTRACT
All those sentenced and imprisoned in England and Wales for having infected their sexual partners with HIV have been convicted under s 20 of the Offences Against the Person Act 1861. For a conviction under this section, the prosecution must prove that the defendant did in fact cause serious bodily harm to another person and that, at the relevant time, he was aware of the risk of causing some degree of bodily harm.1 In legal language, the prosecution must
prove that the defendant was reckless with respect to the causing of such harm. In this chapter I set out to explore the ways in which the concept of recklessness is deployed and articulated in cases involving the sexual transmission of HIV. My argument is that we cannot fully understand the criminal law’s response to the reckless transmission of HIV unless we locate the concept of recklessness, and the fault which it represents, within a broader understanding of the concept and significance of risk in contemporary political, social and penological discourse. Similarly, we cannot fully understand the implications of treating and holding people responsible in law for risk-taking unless we understand the extent to, and ways in which, risk-taking is constitutive of individual subjectivity, both legal and otherwise. The chapter thus begins with a brief account of the way in which English law approaches and structures the fault requirement of criminal offences, followed by a lengthier discussion of the significance of risk in contemporary society. It then considers the ways in which the body is understood as a site of risk, with particular emphasis on the HIV-infected body and its representation. The chapter concludes with a more detailed discussion of recklessness in criminal law and suggests that the fault of recklessness, far from being a less culpable form of fault (as it is conventionally understood to be, especially when compared to intention), may be understood as the paradigm fault of modernity.
