R v Dica [2004] EWCA Crim 1103
R v Dica establishes that the reckless sexual transmission of a serious disease may amount to inflicting grievous bodily harm under section 20 of the Offences Against the Person Act 1861.
Facts
Dica knew that he was HIV-positive. He had unprotected sexual relationships with two women without disclosing his condition, and both later contracted HIV. He was convicted on two counts of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. At trial, the judge directed that the women's consent to sexual intercourse provided no defence. Dica appealed, arguing that consensual intercourse could not constitute the relevant offence and that the jury should have considered whether the complainants consented to the risk of infection. The case required the Court of Appeal to reconsider older authority and determine how consent and recklessness apply to disease transmission.
Legal Issue
Can reckless transmission of HIV constitute grievous bodily harm under section 20, and may informed consent to the risk of infection provide a defence?
Held
The Court of Appeal held that reckless transmission of HIV can amount to inflicting grievous bodily harm under section 20. Biological transmission was capable of satisfying the requirement that harm be inflicted. The court rejected the continuing application of R v Clarence to consensual sexual relationships and serious disease. Consent to intercourse, however, is not necessarily consent to the risk of infection. A complainant who knew of the defendant's condition and freely accepted the risk might provide a defence, but the jury had been prevented from considering that factual possibility. The convictions were therefore quashed and a retrial ordered. Recklessness required awareness of the risk of transmission and an unreasonable decision to take it.
⭐ Legal Principle
A person who knowingly risks transmitting a serious infection through consensual sexual activity may commit an offence under section 20 of the 1861 Act if transmission occurs. Informed consent to the risk may prevent liability, but consent to intercourse alone does not establish consent to infection or its risk.
Significance
The decision brought English criminal law on serious disease transmission into a modern statutory framework. R v Konzani later stressed that willing consent must be informed; concealment of a known infection will ordinarily make such consent difficult to establish. The offence is not one of strict liability: actual transmission, subjective recklessness and the section 20 requirements must be proved. The case also illustrates the limits of consent to harm and should be distinguished from cases such as R v Brown, which concern intentionally inflicted injuries in a different setting.
Common exam questions about this case
Why was consent to sexual intercourse not enough to answer the charge in R v Dica?
Agreement to intercourse does not necessarily include agreement to run the risk of contracting a serious infection. The relevant question is whether the complainant knew of that risk and freely consented to it. Where a defendant conceals a known infection, ordinary consent to sex will not by itself provide informed consent to the additional risk on which criminal liability is based.
What mental element is required for reckless disease transmission under section 20?
The defendant must be aware of a risk of transmitting the infection and unreasonably take that risk. Knowledge of being infected is therefore highly relevant, but liability is not imposed merely because transmission occurred. The prosecution must prove subjective recklessness, causation and grievous bodily harm. Section 20 does not require a specific intention to cause serious injury.
Did the Court of Appeal decide that Dica was necessarily guilty?
No. The court decided that the conduct was legally capable of amounting to a section 20 offence, but the jury had been wrongly prevented from considering consent to the risk. It quashed the convictions and ordered a retrial. The factual questions of disclosure, informed consent, causation and recklessness therefore remained matters for a properly directed tribunal of fact.