To what extent should the transmission of disease be criminalised as an offence against the person?

Since the inclusion of sexually transmitted diseases into the law of England and Wales by Judge LJ in Dica (and in Kelly in Scotland), there has been fervent discussion regarding its appropriateness. Many have found this inclusion to be questionable, be it due to a perceived misalignment with the general purpose of criminalisation, the unexplained contradiction between STD’s and non-STD’s, or a myriad of other reasons. Disputing this, arguments supporting its inclusion appear to focus on matters of public policy, how the spreading of disease and viruses, ‘for no good reason’ as per Lord Lane CJ, is not in the public’s best interests.

Alana Klein brings to the foreground various pertinent practical and theoretical issues with the common law post-Dica. She emphasises the worsening stigma surrounding diseases of this kind, to which this criminalisation has contributed. Further, there is an argument that the criminalisation of transmitting HIV does not, in fact, deter the transmission itself, but deters the potential offender from being medically tested, as an awareness of the risk of transmission is an essential element of the offence. However, I hold that this argument is founded firmly within the realm of conjecture, and a reliance upon it would be misplaced. Yet, there are further issues with this criminalisation. The National AIDS Trust has noted that the application of this law appears to be inherently discriminatory, with a disproportionate number of convictions being awarded to migrants. Additionally, the concept of joint responsibility is exceptionally hamstrung by this criminalisation. Whilst mitigated by the Konzani ruling, which held that the victim's knowledge on a risk of transmission can be discerned via alternative sources from the defendant specifically informing them, the concept is still unfairly put aside. As Klein points out, implementing an appropriate standard of consent that reflects the principle of shared responsibility proves arduous, as one runs the risk of dramatically loosening the restrictions of the law of consent. Would this in principle nullify a necessity for informed consent? Does a consent as to the possible risks associated with an action, regardless of context or circumstance, provide protection enough for the victim, so as to alleviate a relaxing of the law of consent? In contrast, by ascribing the burden to the partner whom is HIV positive, thereby introducing the possibility of criminal liability, one assumes that the risk of infection of an STD does not, at least usually, accompany sexual intercourse. Does this not somewhat constitute a legal fiction, however, to assume that sexual intercourse by default carries no risk of transmission of disease? Viewing the act in a vacuum seems unfair towards the defendant, as an objective view may override circumstances that should cause a victim to at least consider the risk of transmission.

It is my view that the inclusion of transmission of disease in criminal law is, in its present form, unsatisfactory. The judgement provided by Judge LJ in Dica, I believe, is to the detriment of the common law. This inclusion carries with it issues, some of which were untouched here, concerning societal stigma, joint responsibility, and matters of rehabilitation. Whilst there is the presence of an argument founded on public policy, lack of empirical evidence shows this to often be unsubstantiated. Furthermore, the Law Commission has expressed an inclination as to the exclusion of such offence, yet whether it is more applicable for it to be entirely decriminalised, or codified into a cohesive and socially beneficial statute is open to deliberation.