The case of R v Dica [2004] is a landmark decision in English criminal law concerning the reckless transmission of HIV through sexual intercourse. It raised fundamental questions about consent, criminal liability under the Offences against the Person Act 1861, and the extent to which an individual may be held responsible for exposing others to serious risk of disease. This case was significant in clarifying the status of R v Clarence (1889), reconsidering the role of consent, and developing the law on recklessness and grievous bodily harm.
Facts of R v Dica Case
The defendant, Mohamed Dica, was diagnosed as HIV positive. Despite being aware of his condition, he engaged in unprotected sexual intercourse with two women.
- With the first woman, he insisted that the intercourse take place without protection, claiming he had undergone a vasectomy.
- With the second woman, he initially used protection but later engaged in unprotected intercourse during the relationship.
Both women later discovered they were HIV positive. The defendant claimed that both women knew of his condition and had willingly consented to unprotected intercourse. The women disputed this, maintaining that they had been unaware of the risk.
The prosecution charged Dica under section 20 of the Offences against the Person Act 1861, which criminalises the infliction of grievous bodily harm.
Legal Issues
The central legal issues in R v Dica were:
- Whether the complainants’ consent to sexual intercourse extended to consent to the risk of HIV infection.
- Whether R v Clarence (1889), which had suggested that consensual sexual intercourse implied consent to the risk of disease, was still good law.
- Whether recklessly transmitting a sexually transmitted disease could constitute “inflicting grievous bodily harm” under section 20 OAPA 1861.
First Decision in R v Dica
At trial, the judge directed the jury that the issue of consent should not be left to them, holding that Clarence was outdated and that R v Brown (1994) deprived individuals of the legal capacity to consent to the infliction of serious harm in sexual activity. The jury convicted Dica of two counts of inflicting grievous bodily harm.
This outcome reflected a strict view that consent to intercourse does not equal consent to the risk of serious infection when that risk has not been disclosed.
Court of Appeal Decision (3 All ER 593)
On appeal, the Court of Appeal revisited the earlier authorities. It held that R v Clarence was no longer good law. Clarence had been decided in the nineteenth century on the assumption that consent to marital intercourse implied consent to risks, but this was no longer relevant in modern law.
The court made clear that:
- A person who knows they are HIV positive and recklessly transmits the infection through consensual sexual intercourse, without disclosing the risk, may be liable under section 20 OAPA 1861.
- Consent to intercourse does not automatically equate to consent to infection.
- However, if the complainant does consent to the risk of infection, this may provide a defence under section 20.
Judge LJ explained that unless someone is aware of the risk, it is unlikely they would consent to it. The court stressed that in each case, whether the victim consented and whether the defendant was reckless are factual questions to be decided by the jury.
The Court of Appeal therefore quashed the original conviction and ordered a retrial.
Clarification on Intentional Transmission
The court also clarified an important distinction. In cases where a defendant deliberately spreads infection with the intent to cause grievous bodily harm, consent cannot provide a defence. This principle followed R v Brown (1994), where consent was held not to be a defence to intentional harm.
Thus, while consent may be relevant to cases of recklessness, it is not relevant where there is deliberate intent to cause serious harm.
Later Decision (EWCA Crim 1103)
In a subsequent ruling, the Court of Appeal examined the facts again and considered whether consent to unprotected intercourse implied consent to the risk of HIV.
The court recognised that by agreeing to unprotected sexual intercourse, individuals necessarily consent to certain risks, such as unintended pregnancy or the possibility of contracting infections. Judge LJ observed that the complainants were, “knowingly, prepared to run the risk – not the certainty – of infection.”
The court stressed that it would be impractical and inconsistent to criminalise consensual taking of risks inherent in sexual relations. As a result, the Court of Appeal held that consent to unprotected intercourse could amount to consent to the risk of HIV infection. On this basis, the conviction against Dica was quashed.
Legal Principles Established
The rulings in R v Dica clarified several important points of law:
- Reckless Transmission of Disease as GBH: Knowingly transmitting HIV through unprotected sexual intercourse can constitute infliction of grievous bodily harm under section 20 OAPA 1861.
- Consent and Risk of Infection: Consent to intercourse is not automatically consent to infection. However, if the complainant does consent to the risk, it may provide a defence.
- Clarence Overruled: R v Clarence is no longer good law. It had wrongly assumed that consent to intercourse (especially within marriage) implied consent to all associated risks.
- Recklessness vs Intention: Where infection is transmitted recklessly, consent may sometimes be a defence. Where infection is transmitted intentionally, consent cannot be a defence (principle from R v Brown).
- Case-Specific Enquiry: Ultimately, each case depends on its facts: whether the defendant was reckless and whether the complainant consented must be assessed by the jury.
Conclusion
The case of R v Dica [2004] illustrates the complexities of applying traditional principles of consent and harm to modern issues of disease transmission. It confirmed that knowingly and recklessly transmitting HIV may amount to inflicting grievous bodily harm under section 20 of the Offences against the Person Act 1861. At the same time, it recognised that genuine consent to the risk of infection may provide a defence.
By overruling R v Clarence and clarifying the relationship between recklessness, consent, and intentional harm, R v Dica has had a lasting impact on criminal law. It remains an important authority in balancing individual responsibility with the realities of consensual sexual activity.