Should STIs be Criminalised?

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With the stigma thats surrounds freshers’ week in particular, should students be able to rely on the law to protect themselves from catching anything more long-lasting than freshers’ flu?

The campaign poster released by SameDayDoctor to promote sexual health testing
The campaign poster released by SameDayDoctor to promote sexual health testing

The right to rely on the law has been assumed since the outdated case of R v Clarence, 1888, was overruled by the case of Mohammed Dica in 2003. In the latter case it was held that an STI could constitute as GBH under section 20 of the 1861 Offences Against The Person Act. This decision was upheld in the 2004 appeal. Dica was convicted on two accounts of maliciously transmitting HIV through the deliberate concealment of his infection. This was the first English conviction for the transmission of HIV in the UK. It signified a shift from the previous case of Clarence which upheld the transmission of STIs not to be a criminal offence. Since Dica there has been an increasing amount of cases where the trial judge has ruled that either reckless or intended infection of HIV could amount to the infliction of serious bodily harm including Simon McClure in 2011, who was sentenced 2 years and 8 months for reckless transmission of HIV, and Louis Harris in 2013, who was sentenced to 2 years and 6 months under a similar charge.

However, it has only been in recent years where other sexually transmitted diseases have been considered by the courts. Previously, viral sexually transmitted infections were considered to be more malicious due to the “minimal implications” of bacterial infections such as chlamydia, gonorrhoea and syphilis according to the Herpes Virus Association. Most notable is the conviction of David Golding in 2011 for recklessly infecting his partner with herpes. The conviction was met with considerable criticism from organisations such as the British Association for Sexual Health and HIV (BASHH) fearing the negative impact the ruling will have on those diagnosed with sexually transmitted diseases.

Their concern was supported this year by a ruling in Florida, USA, which saw Isaac Mitchell, 52, now facing up to 30 years imprisonment for failing to disclose his HIV diagnosis to his partner despite regular use of contraception. In Florida it is a felony to have intercourse without disclosing a known positive diagnosis of any sexually transmitted disease. Individuals such as Ruth Lowbury, the executive director of the British Medical Journal, have spoken about the implications of such non-disclosure laws, resulting in those living with STIs feeling “ostracised, with their families taunted and their employment under threat”. It is necessary to protect the public from exposure without it becoming a witch-hunt to expose and punish those diagnosed with sexually transmitted infections. The law in the UK would as of yet remain unregulated, without judges following precedents from previous cases. Even so, there has been an attempt to offer guidance through the publication of the Intentional or Reckless Sexual Transmission policy which is being used effectively by the Crown Prosecution Service.

Currently, the proposal of making criminalisation conditional appears to be the most favourable option. This would mean the status of the transmission as a crime would be dependent on factors such as intention; whether the spreading of the disease was purposeful as well as the long-term bodily affects. This approach would address the stigmatisation towards those living with STIs criminalising the intentional, reckless or malicious transmission rather than criminalising the disease itself. It however does not address the underlying issue of consent.

The question of how the law should respond remains unanswered in most jurisdictions and those with regulation laws remain unclear. There is a clear divide in the perceived role of the law in private matters (such as sexual intimacy) and between the law adopting either an interventionist or a laissez-faire approach. Ultimately, before deciding whether the spreading of a sexually transmitted disease warrants legal intervention it is necessary to establish which is most important: the protection of public health, or the need to respect privacy in regards to sexual activity between consenting adult.

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Third year law student with an interest in criminal and international law, particularly the criminalisation of sexuality (paraphilia; BDSM; prostitution; consent; and HIV transmissions). My research encompasses viewpoints ranging from legal theory and literature to the wider political, social and cultural framework in which criminalisation works within.

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