Palliative Care Using Social Approach

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Debates have sparked and controversy has arisen around the issue of whether the criminalization of the transmission of disease should be reformed. Allow this piece to tell you why this should be the case…

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The law on the transmission of the disease is currently dominated by the case of Konzani, landmarking it a criminal offense under section 20 of the Offences Against the Person Act 1861. This very offense serves as nothing more than an attack on our personal autonomy and quite frankly, fails to serve the public interest. How is this the case you might ask?

First of all, the leading case law has only criminalized some sexually transmitted diseases and infections. The cases of Dica and Konzani see the criminalization of the transmission of HIV, Golding relates to herpes and Marangwanda refers to gonorrhea. Interestingly, there have been no cases on the transmission of chlamydia, yet both gonorrhea and chlamydia are transmitted via bacteria, show very similar symptoms and are completely curable. So, we must ask the question of why the law is selective in the diseases it has criminalized? This has inevitably had a counterproductive impact by developing a trail of ambiguity and unfairness within the law.

Perhaps, this is down to the fact that sexual relationships are personal and private. Hence, if adults were to be liable to prosecution for the consequences of consenting to taking known risks with their health, it’s odd that this is only being confined to risks taken within a sexual relationship. Does this not seem to be synonymous to lawmakers exercising their discretion to place limitations on our personal autonomy and freedoms as individuals? Food for thought.

Further to this, adults are permitted to take risks inherent in other aspects of daily life, for example, a parent of a child suffering a serious contagious illness who then holds their child’s hand, or kisses them goodnight thus passing it on. No one would dare to prosecute a parent for this which only serves to highlight the social stigma that continues to be prominent around STDs and sexual relationships in general. This has countlessly been proven to be unfair as the current state of the law places unreasonable duties to disclose information to potential sexual partners.

This is exemplified by Herring who theorized that consent can be vitiated ‘if at the time of the sexual activity a person is mistaken to the fact and had he/she known the truth about that fact, would not have consented to it’. On this basis, consent would be absent where the defendant was untruthful about certain attributes such as his infected status, age, or future intentions. If the victim was to say they wouldn’t have consented to sexual intercourse had they known the defendant had no intention of a future relationship, under this theory the defendant would be liable for rape – an obvious impracticality of the theory. We see sex being treated as violence because of a special ‘moral significance’ being assigned to it, but an answer as to why these deceptions are considered to be so much worse has yet to be answered.

It seems as though the law has placed limitations on human behavior, which is fair in modern society for regulatory purposes but has not quite thought out all the nuanced impacts on the affected parties as well as on society as a whole. To illustrate, there has been a failure to consider the deterring effect the criminalization has had on people getting tested for STDs which has added a public health argument for the advocacy of reform. Figures released by Public Health England showed over 160,000 fewer chlamydia tests being carried out in 2016 compared to 2015 – a decrease of 5%. A contributing factor to this statistical decline is likely due to the fact that having knowledge of the disease and/or infection increases the chances of becoming a criminal as by the leading case law and the CPS guidelines: you cannot recklessly transmit a disease without the knowledge of it.

Notably, there are also evidentiary issues raised by Ryan, in that the defendant must have been proved to have transmitted the disease. In a hypothetical situation, how can it be proved that the defendant transmitted the disease when there is no medical evidence to prove that the defendant is HIV positive? The courts could order a compulsory blood test to establish whether or not the defendant is HIV positive at the time of the trial. However, this fails to prove that the defendant was HIV positive at the time the complainant accused them of transmitting the disease. As a result, can it actually be proved with certainty that X caused Y’s disease?

Without proof, the only other defense is consent. But, if the victim has the capacity to consent to sexual intercourse in the first instance, then surely, they also had the capacity to understand that by having unprotected sex, they were also exposing themselves to the risk of contracting a sexually transmitted disease. Following this reasoning, how can it be deemed legally valid that the defendant should then be attributed the sole responsibility of the transmission and subsequently punish only this person, when it would not have occurred but for the victim’s willingness to accept that risk? Evidently, the whole ideology is premised on contradictions and the defense of consent remains a contentious issue which the criminal law has struggled to set a firm grasp upon.

Taking this one step further, both partners that engage in unprotected sexual intercourse are undeniably taking risks. Therefore, taking responsibility for such risks would, in theory, promote personal autonomy which also follows the statement from Judge LJ, ‘the public interest also requires that the principle of personal autonomy, in the context of adult non-violent sexual relationships, should be maintained’. Hence, the criminalization of the transmission of disease deprives them of such autonomy and so a call for reform makes its way to the forefront of this argument.

The law places boundaries on our behavior and regulates societal relationships, and for good reason. But, when it has caused widespread controversy, an attack on personal freedom, ambiguity, and unfairness within the law, how can it continue to govern our justice system?

Reform is necessary.  

29 April 2022

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