NCJ Number
57851
Journal
Criminal Law Review Dated: (OCTOBER 1978) Pages: 612-625
Date Published
1978
Length
15 pages
Annotation
A STUDY OF ENGLISH CASE LAW IS USED TO EXAMINE CULPABILITY IN THE NONFATAL INFLICTION OF BODILY INJURY THROUGH THE TRANSMISSION OF DISEASE, PARTICULARLY VENEREAL DISEASE.
Abstract
IN 'CLARENCE' (1888, 22 Q.B.D 23), CLARENCE WAS CHARGED WITH INFLICTING GRIEVOUS BODILY HARM (G.B.H) ON HIS WIFE CONTRARY TO SECTION 20 OF THE OFFENSES AGAINST THE PERSON ACT 1861, AND ASSAULT OCCASIONING ACTUAL BODILY HARM (A.B.H) CONTRARY TO SECTION 47. THEY HAD SEXUAL INTERCOURSE WITH HER CONSENT, WHILE HE KNEW AND SHE DID NOT THAT HE HAD GONORRHEA. HIS CONVICTION WAS QUASHED ON THE GROUND THAT HE HAD NOT ASSAULTED HIS WIFE, A NECESSARY CONDITION OF LIABILITY UNDER BOTH OF THESE SECTIONS. THE AUTHOR ARGUES, HOWEVER, THAT IN CERTAIN CIRCUMSTANCES THERE CAN BE LIABILITY FOR INFECTING ANOTHER UNDER SECTION 20 OR 47. THE CASE OF 'DONOVAN' (1934, 2 K.B. 498) POINTS TOWARD THIS POSSIBILITY. IN THIS CASE, 'D' CANED 'V' WITH 'V'S' CONSENT. THE DEFENDANT WAS CONVICTED OF ASSAULT, EVEN WITH THE VICTIM'S CONSENT, BECAUSE THE ACT OCCASIONING THE INJURY WAS NOT SPECIFICALLY SOCIALLY APPROVED. IT CAN LOGICALLY FOLLOW FROM 'DONOVAN' THAT WHEN A PARTY CONSENTS TO SEXUAL INTERCOURSE WITH A PERSON KNOWN BY THE CONSENTER TO HAVE VENEREAL DISEASE AND THE DISEASE IS TRANSMITTED, RESULTING IN A.B.H. OR G.B.H., THEN THE TRANSMITTER IS LIABLE BECAUSE A.B.H. AND G.B.H. ARE NOT SOCIALLY APPROVED, REGARDLESS OF THE MEANS OF INFLICTION. 'DONOVAN' SPECIFICALLY STATES THAT WHERE THERE IS FORESIGHT OF PRODUCING BODILY HARM, CRIMINAL LIABILITY EXISTS. ALTHOUGH 'CLARENCE' RULES THAT INFECTION PER SE CANNOT BE CONSIDERED AN ASSAULT, IF THE COURT VIEWS THE SERIOUSNESS OF THE INFECTION AS RESULTING IN A.B.H. OR G.B.H., THEN THE INJURIOUS EFFECTS OF AN ASSAULT HAVE RESULTED FROM THE ACT THAT TRANSMITTED THE DISEASE. POSSIBLE ARGUMENTS AGAINST THIS REASONING ARE POSED AND REFUTED, AND THE EXTENT TO WHICH THE VICTIM'S CONSENT TO HARM DOES AND SHOULD NEGATE CRIMINAL LIABILITY IS EXAMINED. (RCB)