ABSTRACT
Feinberg, in a seminal article published three decades ago in Ethics , 2 considered the parameters of consent as a defence to what otherwise would be presented as a criminal harm. At the defi nitional core the defence, within supererogatory contextualisations, was viewed through a legal prism of justifi cation. 3 The conclusion adduced was consent should properly be classifi ed as a justifi cation in that it demonstrated that the contested conduct was a legally permissible thing to do, not something legally prohibited. 4 The corollary, however, is that intentional or reckless infl iction of harm on another person, even one who may consent, undermines society as a whole and such conduct should, generally speaking, be outlawed, unless there are special circumstances that may justify it. 5 In this sphere the criminalisation of the transmission of HIV and other communicable sexual diseases, either via nonfatal offence legislation, or alternatively as a sexual crime (rape) where fraud vitiates consent, raises fundamental questions about the function and purpose of criminal law as a tool of
ability) of criminal law to regulate an intimate and fundamental aspect of an individual’s private life. 7
In broader terms, the ambit of legally valid consent in criminal law, beyond transmission of HIV, is also contestable and opaque. 8 A number of juridical precepts affirm that a freely given and sufficiently informed consent by a victim will preclude a defendant from inculpation; 9 but counterfactually there are a distinct spectra of cases where consent is legally irrelevant. 10 It is difficult to chart a via media between these juxtapositions. Moreover, concerns related to individual autonomy and state paternalism are often in conflict. 11 The latter indicia plays a crucial, but often forgotten, role within sentencing inculcations in this arena. Consent engenders a perspective that the autonomy of the other person is involved, and that if that person consents to the conduct there should be no offence. 12 However, we can also identify an attitude of paternalism that is primordial in a number of leading judgments: the proposition that the criminal law should be used to protect persons from themselves. 13 Legal moralism can also be translucent in that where conduct per se is viewed as immoral then the stigmatisation of legal censure is presumptively justified; wholly outwith the consensual nature of the act itself. 14 Consent principles have developed in this regard in a solipsistic ad hoc manner, and haphazardly rather than within a coherent structure. 15
A powerful isomorphic relationship correlates between academic propositions and legislative determinations vis a vis types of fraudulent conduct that are legally problematic in
gated, and highlighted, where consent is voided by deception: non est factum cases; physical difference cases; and false qualification precepts. 17 The fraudulent concealment of HIV status by an individual actor presents separate categorisation issues and challenges over appropriate criminalisation demarcations: manifestation of the transmission of a serious harm (nonfatal offence pathway); and risk of harm at point of sexual intercourse temporal individuation where D1 conceals status (rape and sexual crimes). 18 Rape by fraud within the penumbra of this latter individuation raises core questions about the nature of rape and whether a violence/deception dichotomy should prevail, the nature of the harm that is brought about, and the inculpatory boundaries that justify law’s intrusion into sexual intimacies. 19
A dialectic relationship prevails between courts and legislatures in criminalising rape by fraud in the wider sense, and arguably repronormative ideologies linger still today. 20 A primordial distinction has been distilled as to a consent given under a deception or mistake as to the thing itself , ie the act of sexual intercourse, and a consent to that act of sexual intercourse itself induced by deception or mistake as to a matter antecedent or collateral thereto (fraud in the inducement does not destroy the reality of the apparent consent; fraud in the factum does). 21 Under the first category there will be cases where the complainant is deluded into supposing that she is undergoing medical treatment, and the cases where in the dark she is induced to assume that it is her husband who is the man with whom she is having sexual intercourse. Within the second heading will come consent induced by fraudulent representations given by the individual actor as to matters such as his wealth, lack of sexual infections, or freedom to marry the complainant, or the promise to pay for the sexual services provided. 22 Chamallas has provided the following succinct review of the distinction:
[I]n fraud in the factum . . . the victim consents to the doing of act X and the perpetrator of the fraud, in the guise of doing act X, actually does act Y. [I]n . . . fraud in the inducement . . . the victim is fundamentally induced to consent to the doing of act X and the perpetrator of the fraud does indeed commit to act X. 23
This chapter focuses on whether so-called ‘inducing causes’ can destroy the reality of the consent in terms of transmission of HIV. 24 A new dynamic is identified herein beyond the
to non-fatal and sexual crimes. In the context of non-fatal offences it is contended herein, that informed consent on the part of V as to D’s HIV status may provide an exculpatory defence, wholly outwith D’s malfeasant concealment, as the outcomes of the appellate decisions in Dica 25 and Konzani 26 have identified. In terms of the definitional construction of non-fatal offences it has always been a matter of some debate and disagreement as to whether or not the presence or absence of consent forms part of the actus reus of the relevant assault offence or whether it is a separate and independent element that stands outside of the conduct component of the offence. 27 If ‘absence of consent’ is regarded as an ingredient of the conduct element of the offence then, if the assault is consented to, a vital element is missing and there is no legal wrong of any kind. 28 If, however, consent is seen as a defence falling outside of the actus reus then there remains a ‘legal wrong’ that, in the circumstances existing at the time, may be justified by the consent of the victim. 29 The majority of legal opinion seems to favour the interpretation that consent operates as a defence outside the actus reus of the offence although there is considerable authority to the contrary. 30
In contradistinction, for sexual crimes, including rape, lack of consent sits squarely within the conduct element of the offence(s), and is palpably inculpatory. 31 A novel schema has thereby been created under extant law within the contextualisation of fraud and HIV transmission. 32 The judicial template provided now focuses on disclosure/non-disclosure by D of HIV status, and separately whether overt/non-overt deception applies as a determinative concomitant and the fraud in factum/inducement dichotomy is rendered nugatory. The second section of the chapter provides four postulations to illustrate the parameters of fraud and HIV transmission in the context of non-fatal/rape criminalisation, drawing contemporary boundaries, and illustrating problems engendered relating to unknown justification and appropriate culpability thresholds. 33
Extant law is Janus-facing in terms of disclosure/deception categorisations, as Laird and Ormerod have intimated. 34 The appellate decisions in Dica 35 and Konzani 36 established that informed consent on the part of V may exculpate D from liability for what otherwise fits within the gravamen of reckless transmission of grievous bodily harm (HIV), even in a
for reckless transmission (non-disclosure) without informed consent. Basic non-disclosure of status, without further overt deception, does not transmute consensual intercourse to nonconsensual, for the purposes of rape, but rather any potential liability falls under the Offences Against the Person Act. 39 More recently, however, in McNally 40 it was stated, albeit obiter , that a rape conviction may be appropriate, and consent vitiated, where the complainant ‘directly’ asks the defendant if he is HIV-positive, and he responds fraudulently. 41 Effective choice is removed, and the divide between fraud in the factum/inducement is obfuscated by novel overt deception (inducing cause) preconditions to intercourse. 42 The culpability-onus nexus is consequently blurred in the context of criminalisation of transmission of HIV; the onus of disclosure applied to a defendant for rape does not apply to the threshold of non-fatal offence liability. 43 Deception is transmogrified to operate as an inducing cause for one type of liability but not another without regard for dangerousness/blameworthiness of the individual actor.
