Intentional or reckless sexual transmission of infection
Introduction
This guidance sets out how prosecutors should deal with cases where there is an allegation that the accused has passed an infection to the complainant during the course of consensual sexual activity. It excludes other methods of transmission, such as shared needle usage.
Prosecutors will appreciate that this area of the criminal law is exceptionally complex.
The criminality of this offending lies in the mens rea. This means that the relevant offences will be difficult to prove to the requisite high standard, to satisfy the evidential stage of the Code test and in the court itself.
There are other sensitivities: the relationship between the criminal law and consensual sexual behaviour is delicate. The use of the criminal law in the most intimate of physical exchanges is always going to attract publicity and will invite strongly held and differing views.
The role of the prosecutor, however, is clear: it is to apply the criminal law and prosecute individuals where the two stage test set out in the Code for Crown Prosecutors are satisfied.
Relevant offences
The courts have recognised that person-to-person transmission of a sexual infection that will have serious, perhaps life threatening, consequences for the infected person's health can amount to grievous bodily harm under the Offences Against the Person Act 1861: R v Dica [2004]. Therefore, the transmission of that infection can constitute the offence of inflicting or causing grievous bodily harm, which when intentional can attract a sentence of life imprisonment.
The relevant offences for a prosecutor to consider are under sections 18 and 20 of the Offences Against the Person Act 1861.
General propositions
The application of the law in this area is not related to any particular characteristic of the defendant or the complainant. The sexual transmission of infections can take place between a man and a woman, between two men and between two women. The infection may pass from either person engaging in sexual activity and it is wrong to think that it can only be passed from the so-called "active" person to the so-called "passive" person.
Sexually transmitted infections may be bacterial or viral; the means by which infections are transmitted vary. Some sexually transmitted infections may be passed through semen, or blood, or saliva, or a combination of all of these. There may be different rates of likely infection depending on the characteristics of the particular infection and on the medium by which it is transmitted.
It follows therefore that an infection may be passed without the two people engaging in full sexual intercourse. Indeed, some infections are transmitted in other ways entirely. Prosecutors will need to have a clear understanding of the mediums by which and of the ways in which any particular infection can be passed when considering the evidence required to prove how the infection was in fact transmitted - and therefore whether it was passed by the defendant.
Prosecutors will also need to pay detailed attention to the totality of the evidence available to them when deciding whether there is sufficient evidence to prosecute. As the grievous bodily harm cannot be seen in the same way as, for example a, stab wound, it is inevitable that detailed scientific and medical evidence will need to be adduced in court. The nature of this scientific and medical evidence will be dependant on the type of the sexually transmitted infection.
However, scientific and medical evidence will only ever form part of the case against the defendant. We must build up a strong factual case around the scientific and medical evidence in order to satisfy the evidential test in the Code. This is because scientific and medical evidence of this nature is not as precise as, for example, evidence of DNA matches.
In the case of some infections, the scientific and medical evidence can demonstrate with certainty that the defendant did not infect the complainant because the two people concerned have different strains of the infection. However, scientific and medical evidence cannot prove that the defendant did infect the complainant. In such circumstances, at best, the scientific and medical evidence may demonstrate that the strain of the infection in the complainant is consistent with the strain in the defendant and that the stages of the infection in each are compatible with the assertion that the defendant infected the complainant.
In the case of other infections, the medical and scientific evidence may be able to demonstrate that the physical symptoms that the complainant exhibits are the same as the symptoms of a particular kind of infection that the defendant clearly has.
The nature of the evidence will depend on the type of infection. Guidance on the weight and nature of the evidence required to be adduced by the prosecution is set out at Evidential issues, below in this section.
Intentional transmission: Section 18 Offences Against the Person Act 1861
The deliberate infliction of grievous bodily harm by one person on another is one of the most serious crimes under the law.
Consequently, where the evidential stage of the test set out in the Code is satisfied, it is likely that the public interest will require a prosecution.
However, prosecutors should never accept a plea to section 18 unless there is scientific, medical and factual evidence which proves the contention that the defendant intentionally and actually transmitted the infection to the complainant. The mere fact that the defendant says that they did and that they intended so to do is not sufficient to meet the evidential stage in the a href="../../victims_witnesses/code.html" title="Go to the Code for Crown Prosecutors on this website">Code test. There has to be other factual evidence to demonstrate that the defendant's account is at least compatible with the scientific evidence available: see General propositions, above in this section.
Where there is factual and compatible scientific and medical evidence and an informed plea by the defendant who admits intentionally seeking to infect the complainant, a plea to section 18 may be accepted, subject to the public interest stage of the Code test also being satisfied.
The consent of the complainant to sexual activity in the knowledge that the defendant is infectious does not amount to a defence for the defendant in cases of intentional infection: R v Donovan [1934] 2 K.B. 498; Attorney General's Reference (No. 6 of 1980) [1981] Q.B. 715, CA.
If the prosecution can prove that the defendant intended sexually to transmit an infection to a person but failed to do so, a charge of attempting to commit section 18 can be brought.
Reckless transmission: Section 20 Offences Against the Person Act 1861
'Recklessness' in this context means that a defendant foresaw that the complainant might contract the infection via unprotected sexual activity but still went on to take that risk. Once the prosecutor is satisfied that the suspect has foreseen the risk of infection, the 'reasonableness' of taking such a risk must be considered. 'Reasonableness' is dependant upon the circumstances known to that person at the time he or she decided to take the risk.
It will be highly unlikely that the prosecution will be able to demonstrate the required degree of recklessness in factual circumstances other than a sustained course of conduct during which the defendant ignores current scientific advice regarding the need for and the use of safeguards.
Prosecutors should never accept a plea to section 20 unless there is scientific, medical and factual evidence which proves the contention that the defendant recklessly and actually transmitted the infection to the complainant. The mere fact that the defendant says that he or she did and that he or she did so recklessly is not sufficient to meet the evidential stage of the Code test. There has to be other factual evidence to demonstrate that the defendant's account is at least compatible with the scientific evidence available: see General propositions, above in this section.
Where there is factual and compatible scientific and medical evidence and an informed plea by the defendant who admits recklessly infecting the complainant, a plea to section 20 may be accepted, subject to the public interest stage of the Code test also being satisfied.
The informed consent of the complainant to the assumption of risk of infection by engaging in sexual activity with a person who is infectious - in cases where the defendant cannot be shown to intend to pass on the infection - is a defence available to the defendant in cases of section 20 grievous bodily harm: R v Dica.
'Informed consent' does not necessarily mean that the defendant must disclose his or her condition to the complainant. A complainant may be regarded as being "informed" for the purposes of giving consent where a third party informs the complainant of the defendant's condition, and the complainant then engages in unprotected sexual activity with the defendant. Similarly, a complainant may be regarded as being "informed" if they become aware of certain circumstances that indicate that the defendant is suffering from a sexually transmitted infection, such as visiting the defendant while he or she is undergoing treatment for the infection in hospital, or the appearance of sores (etc.) on the defendant's genitalia.
Whether the complainant gave his or her informed consent is a matter for the jury.
Evidential issues
In cases under section 18 and section 20, the prosecutor must be satisfied that there is sufficient evidence to satisfy the evidential stage of the Code test.
The first issue that needs to be addressed is the scientific and medical evidence. As stated in General propositions, that evidence may be able to prove that the defendant did not transmit the relevant infection, and it is likely that, in such circumstances, that finding would be conclusive in terms of not proceeding with the matter.
As indicated earlier, the scientific and medical evidence in respect of other infections may indicate that the strain of the infection in the complainant is compatible with the strain of the infection in the defendant. Prosecutors will need to discuss with their expert witness all the ramifications of that finding and have clearly in their minds exactly how far they are able to rely on the scientific and medical evidence to support their case against the defendant. The proximity of the strains of infection in the complainant and defendant and the extent to which the scientific evidence supports other factual evidence in terms of when the infection was allegedly passed will be critical in helping to determine the weight that may be placed on the scientific evidence.
Prosecutors will always have in their minds the fact that the scientific evidence will only be evidence of the fact of infection - not of the identity of the person who infected.
Prosecutors are advised always to have a conference with their scientific or medical expert before reaching a final decision about the strength of the evidence as a whole so that that evidence may be placed in its appropriate factual context.
As scientific and medical evidence alone will be insufficient to satisfy the evidential stage of the Code, it is clear that, before a prosecution may be started, other evidence needs to be obtained.
Prosecutors will be alert to the need to proceed most carefully here. The prosecutor will need to be satisfied that the complainant did not receive the infection from a third party or that the complainant did not infect the defendant. This means that the prosecutor will need to know about any possibility which is compatible with the scientific evidence that the complainant was infected by a third party. This means enquiries will have to be made about the relevant sexual behaviour and relevant sexual history of the complainant. This is extremely sensitive and prosecutors must take enormous care to ensure that the complainant is treated with respect and dignity and is not made to feel any more victimised than they are likely to already. They will need to be made aware of the need to rule out the possibility that they became infected in a different way or by a person other than whom they allege. Not to rule out such a possibility will mean that there will be insufficient evidence to proceed.
Prosecutors must ensure that expert evidence is sought at an early stage in order to determine the likelihood of transmission in any given case, and the possibility of alternative sources of infection, in order to minimise unnecessary and protracted investigations and distress to all parties concerned. In particular, prosecutors must be fully aware of the ways in which the particular infection can be passed between two people. They will also need to be aware of the ways in which individuals can protect themselves against transmission of the particular infection. This information should be obtained from the scientific expert. In this way, prosecutors will be able to guide the investigating officer as to the information they need to elicit from the complainant in order to set the allegation in a factually provable context.
Once a prosecutor is satisfied that they are in possession of sufficient factual evidence to show that the defendant is responsible for passing on the relevant infection and that the scientific evidence is compatible with the allegation, they will need to move on to consider the way in which the element of recklessness may be proved.
In this regard, prosecutors will look for evidence that the defendant 'knew' that they had a sexually transmissible infection and were potentially infectious to others if they engaged in unprotected sexual activity. 'Knowledge' is a matter for the prosecution to prove to the criminal standard of proof and for the jury to decide. Evidence will have to be called and the best, and usual, evidence will be medical diagnosis, that is evidence to prove that the defendant had been tested and had been told of his infection and advised about ways of reducing the risk of transmission to others, and that he or she had understood such advice. But it is possible that, on rare occasions, a person can know that he or she is infected without undergoing the necessary medical tests. This will depend on all the circumstances and will be a matter for the jury to decide. Those who choose not to be tested will not necessarily avoid prosecution for the reckless transmission of a sexually transmissible infection if all the circumstances point to the fact that they knew that they were infected. 'Wilful blindness' by not undergoing testing may be a factor that a jury can take into account when deciding the question of the defendant's 'knowledge'.
Such evidence might be confirmation that the defendant has had a preliminary diagnosis from a clinician who has recommended that they have a formal confirmatory test for presence of the sexual infection but the defendant has failed to act on that recommendation; it might be evidence that the defendant is exhibiting clear symptoms associated with the sexual infection from which it is reasonable for the prosecution to infer that they must know that they have it; it might be evidence that one of their previous sexual partners has since been diagnosed with a sexually transmitted infection in circumstances which the defendant knows that this means that it is only he or she who is likely to have infected their sexual partner. Any of these factual circumstances may be sufficient to allow the prosecution and eventually the court to decide that the defendant did have the required degree of knowledge that should have led them not to take the risk of infecting another person. However, it will only be in exceptional cases that the Crown will be able to rely on 'wilful blindness' as proof of knowledge.
Prosecutors will need to be aware that proof of knowledge is likely to be difficult. Even in cases where the defendant can be shown to have been told that they carry an infection, prosecutors will need further evidence to show that the defendant understood that he or she too was infectious to other people.
Prosecutors should bear in mind that there may be varying degrees of infectiousness during the cycle of an infection and therefore medical evidence is extremely helpful here and it should also include specific information on the degree of infectiousness of the defendant at the time of the alleged offence.
Prosecutors will also want to bear in mind that people who are informed that they have an infection which may possibly be life-shortening are likely to be in a state of shock at that time, and any further information that is given at the same time may be unlikely to have registered fully with the defendant. In such cases, prosecutors will need to be satisfied that the defendant really did understand that they were infectious to other people, and how the particular infection concerned could be transmitted.
Safeguards against transmitting infection
Prosecutors will need to have a thorough understanding of the means by which people can protect themselves either from passing on an infection during sexual activity or from being infected during sexual activity.
Prosecutors will need to ensure that their expert fully addresses these issues in their statement and in conference. Different considerations apply depending on the nature of the infection involved and prosecutors must be alert to the different forms of safeguards and any differing medical advice that may have been given to the infectious and the previously uninfected person regarding their use during their sexual activity.
Whilst in consensual sexual activity, public health considerations demand that it is the responsibility of both individuals to ensure safeguards are taken to mitigate the risk of transmitting infection, ultimately it is the responsibility of the person who is infectious to ensure that those safeguards are taken and, so far as they are aware, remain operative throughout the entire period of sexual activity when it remains a possibility that their infection might be transmitted.
Evidence that the defendant took appropriate safeguards to prevent the transmission of their infection throughout the entire period of sexual activity, and evidence that those safeguards satisfy medical experts as reasonable in light of the nature of the infection, will mean that it will be highly unlikely that the prosecution will be able to demonstrate that the defendant was reckless. Although infection can occur even where reasonable and appropriate safeguards have been taken, it is also of course possible that the infection took place because the safeguards and/or their usage or application were inappropriate. However, prosecutors will need to take into account what the defendant considered to be the adequacy and appropriateness of the safeguards adopted; only where it can be shown that the defendant knew that such safeguards were inappropriate will it be likely that the prosecution would be able to prove recklessness.
The extent to which safeguards remain effective during sexual activity will need to be considered by the prosecutor if the issue arises as a matter of fact. Clearly, the issue of recklessness only arises in circumstances where the defendant has not informed the complainant of their infectious status. When the safeguards cease to be operative, it is for the defendant to disclose their infectious status to the complainant, so that they can choose whether to assume the risk [R v Dica] and thereby provide a defence to the defendant.
Each case however will have to be considered on its merits, and prosecutors will need to take a reasonable and practical view about the extent to which recklessness remains provable in circumstances where the defendant took appropriate safeguards which in the event proved to become inoperative during sexual activity.
Attempt to commit section 20 Grievous Bodily Harm
It is not possible to attempt to commit an offence contrary to section 20 Offences against the Person Act 1861. Therefore, a prosecution cannot be brought for this offence unless transmission has actually taken place. It is not sufficient for a person to be put at risk of being infected by a partner who failed to disclose their medical condition.
Rape
A person who does not disclose the fact that they have a STI and then has consensual sexual intercourse with another without informing that person of their infectious state, is not guilty of rape (R v B [2006] EWCA Crim 2945, CA).
Sexual transmission of an infection as an aggravating feature of another sexual offence
The sexual transmission of an infection may be the consequence of the defendant committing a serious sexual offence on the complainant, such as rape or sexual assault. The Sentencing Guidelines Council has indicated that where an offender knows that he or she has a sexual infection and commits a sexual offence on another, that fact can be taken into account as an additional aggravating factor for sentencing purposes. (Definitive Sentencing Guideline - Sexual Offences Act 2003, published 30 April).
Public interest issues
Where the prosecutor is satisfied that there is sufficient evidence to meet that stage in the Code for Crown Prosecutors, they must carry on to consider the public interest. The relevant considerations to be borne in mind are set out in the Code.
Complainant and witness care issues
By its very nature, the sexual transmission of infection takes place during the most intimate of activities. Notwithstanding the physical impact that this form of grievous bodily harm may have on them, complainants are likely to have to attend court to give their evidence.
Prosecutors must do everything in their power to make sure that those who are infected do not become complainants twice over - once through the actions of the defendant and once more through the requirements of the criminal law for the prosecution to prove its case. Prosecutors should always have in their minds the traumatic circumstances in which the complainants find themselves: this may include coming to terms with the fact that someone well known and close to them has transmitted a possibly life-shortening infection to them. This in turn could have resulted in the breakdown of their relationship and disrupted the complainant's social, domestic and working life in a way that may cause them not to want to add to their situation by having to give evidence and face the prospect of cross-examination of their sexual behaviour.
As a result, the prosecutor may well arrive at a position whereby the complainant decides that they no longer wish to give evidence in any court case.
The prosecutor's duty is of course to the public interest rather than to the interest of any one individual and they will want to bear in mind that s18 and s20 offences are serious.
Where before trial the complainant indicates that they no longer wish to give evidence, the prosecutor will first consider whether it is possible for the prosecution to continue without the complainant. At the same time, the prosecutor will instruct the police to take a statement setting out why the complainant does not any longer wish to give evidence. The key issue is whether the decision to withdraw support from the prosecution is voluntary or as a result of pressure being brought to bear on the complainant.
Depending on the reason for the complainant's decision, prosecutors will need to consider whether it is appropriate to ask the police to conduct further enquiries with a view to instituting charges against the defendant or a third party.
Prosecutors should keep all possible options open for continuing with the prosecution - including the possibility of requiring the complainant to give evidence, and the possibility that the relevant provisions under the Criminal Justice Act 2003 may be invoked.
Prosecutors must ensure that the complainant is aware of the special measures that can be applied for at court to provide a more secure environment in which the complainant may give their evidence.
A combination of these factors may help in persuading the complainant to continue to want to give evidence for the prosecution.
Ultimately, prosecutors must ensure that the standards of witness and complainant care as set out in the Victim's Code and Prosecutors' Pledge are adhered to.
Internal procedures
As these offences are highly sensitive and to ensure consistency of approach, all cases in which a charge of intentional or reckless sexual transmission of infection might be preferred should be notified to the Director's Principal Legal Advisor through the Area's Head of the Complex Casework Unit [where there is one] or through the Chief Crown Prosecutor where there is not. This includes cases where the local prosecutor does not consider there to be sufficient evidence. The reviewing lawyer must provide a synopsis of the evidence and a recommendation regarding the appropriate course of action to take which must be considered and endorsed by the CCU Head or CCP.
This procedure will be reviewed before the expiry of 12 months from the date of this guidance.
Useful references
Code for Crown Prosecutors
Offences Against the Person Act 1861
R v Dica [2004]
R v Donovan [1934] 2 K.B. 498
Attorney General's Reference (No. 6 of 1980) [1981] Q.B. 715, CA
R v Dica
R v B [2006] EWCA Crim 2945, CA
Definitive Sentencing Guideline - Sexual Offences Act 2003
Victim's Code
Prosecutors' Pledge