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Consent -- SOA 2003

I assure you all I've read the cases, but I don't have time to read them again and I'm having a dispute with someone over the following issue:

How is the ruling in B that a deception as to the HIV status of D will not vitiate consent reconcilable with the ruling in Assange that failure to heed a condition of V that she will only have sex if a condom is used will vitiate consent?

My friend thinks that they are reconcilable on the basis that in Assange the condition was explicit, but that seems to me an odd ground of distinction. I thought the finding in B was because, notwithstanding that the particular aspect of the act, i.e. the risk of disease, wasn't consented to, the nature of the act was consented to, such that there could be no complaint of rape.

Is it simply a judgment that protection goes more towards the nature of the act that risk of disease?

Thanks in advance.
(edited 11 years ago)
Perhaps you and your friends positions aren't all that far apart?

In B the nature of the act was consented to, and the condition was not made explicit. But if the victim in B had stated "I will not have sex with you if you have HIV", then the nature of the act (indeed perhaps the act itself) would not have been consented to, *and* the condition would have been made explicit, and seems likely that in that circumstance the decision would have been the same as in Assange.

I don't think there was a 'deception' in B. B never explicitly stated that he didn't have HIV. The court rejected the idea that an 'implied deception' could ever vitiate consent under s74. This seems reasonable because where would you draw the line as to which subject matters will vitiate consent if there is an 'implied deception' about them? Perhaps some victim might not want to have sex with anyone from Yorkshire, but the idea of an 'implied deception' about location is absurd - it may never have crossed the defendant's mind that his sexual partner had such a condition.

It seems perfectly reasonable that a person can explicitly state that they are not willing to have intercourse if such and such is the case, but much less reasonable to say that the defendant has deceived the 'victim' by not disclosing every possible ground which might cause the victim not to be willing to have intercourse.

(Bear in mind I haven't studied Criminal Law yet and I only read the cases just now out of curiousity).
Original post by Forum User
Perhaps you and your friends positions aren't all that far apart?

In B the nature of the act was consented to, and the condition was not made explicit. But if the victim in B had stated "I will not have sex with you if you have HIV", then the nature of the act (indeed perhaps the act itself) would not have been consented to, *and* the condition would have been made explicit, and seems likely that in that circumstance the decision would have been the same as in Assange.

I don't think there was a 'deception' in B. B never explicitly stated that he didn't have HIV. The court rejected the idea that an 'implied deception' could ever vitiate consent under s74. This seems reasonable because where would you draw the line as to which subject matters will vitiate consent if there is an 'implied deception' about them? Perhaps some victim might not want to have sex with anyone from Yorkshire, but the idea of an 'implied deception' about location is absurd - it may never have crossed the defendant's mind that his sexual partner had such a condition.

It seems perfectly reasonable that a person can explicitly state that they are not willing to have intercourse if such and such is the case, but much less reasonable to say that the defendant has deceived the 'victim' by not disclosing every possible ground which might cause the victim not to be willing to have intercourse.

(Bear in mind I haven't studied Criminal Law yet and I only read the cases just now out of curiousity).


Thanks for the help :smile:

Hope you won't take offence if I don't reply with anything about the issue, after you went and read the cases, the exam's over now, but I appreciate it
Ah no worries, although would have been interesting to know what you concluded about the distinction.
Original post by Forum User
Ah no worries, although would have been interesting to know what you concluded about the distinction.


I'll have a look when I get the next couple of exams out of the way :smile:

edit: that might let you know that I didn't really get to a solid conclusion, I ran out of time in a massive way and was basically going to write down what you said if it came up. I'll have a look at what I actually think with time to reflect though, I'm sure I won't disagree anyway
(edited 11 years ago)

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