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Criminalising the Transmission of HIV
Posted: Tuesday, July 27, 2004

By Stephen Kangal

Reference is made to a story written by Richard Lord (Express, 22 May, p.7) outlining the intention of Government to introduce legislation to criminalise the sexual transmission of HIV. It must be noted that the sexual transmission of HIV is already a criminal offence under the common law relating to grievous bodily harm.

An English Court of Appeal ( Times May 5, 2004) ruled that an HIV- STD infected person can be found guilty of inflicting grievous bodily if he/she transmitted HIV or any STD to a sex -consenting partner who was unaware on his/her infection prior to engaging in consensual sexual intercourse.

The Court distinguished and separated the decision of someone consenting to sex from someone consenting to running the risk of being infected with an STD. The Court concluded that an STD person would be acting reckless of the consequences of his/her action in not foreseeing that in engaging in sex will result in causing grievous bodily harm on his/her consensual partner.

Even if a consensual partner were to consent to engage in sexual activity in the full knowledge of the STD-affliction of the other, the defendant can still be held criminally liable. This position is based on the fact that potential victims of STD infections do not possess the legal capacity to consent to grievous bodily harm (serious violence or HIV infection) or for that matter to any other unlawful act. The Court stated:

"The present policy of the law was, that, whether or not the violent activity took place in private and even if the victim agreed to it, serious violence was not lawful merely because it enabled the perpetrator, or the victim, to achieve sexual gratification."

Philandering Trinbagonians should now be aware that they can face criminal prosecution for contributing to and fomenting the HIV/Aids pandemic by indulging in unprotected sexual adventures and exposing the vital human resource potential of Trinbago to serious harm.

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