Mark Devereaux, HIV positive, is jailed. Remember Dica?

Mark Devereaux was HIV positive and knew it, but still continued to have unprotected sex with his girl friend. She became pregnant and infected with the virus.

It should be pointed out that the case was heard in Scotland.  Mark Devereaux has been jailed for 10 years.  The charges were of culpable and reckless conduct.  The basis of the charges was his reckless regard for his girlfriend.  Devereaux's  girlfriend found out he had infected her with HIV when she was pregnant.

The court were also told that Mark Devereaux also had unprotected sex with other women - apparently he had known he had the virus for nine years.

These sorts of cases are fortunately rare but some of you may recall the case of R v Dica.  Dica had infected two women with HIV after he persuaded them to have unprotected sex.  Dica did not tell either woman that he was infected.  Dica was charged with causing grievous bodily harm under section 20 of the Offences Against the Person Act 1861, and was sentenced to 8 years imprisonment.

Following his conviction, Dica won an appeal against conviction before the Court of Appeal.  The appeal turned on the issue of the direction by the trial judge on the matter of consent.  The issue of whether HIV infection could amount to GBH was not the issue at the appeal and it has since become known as biological GBH. There was considerable concern over the question of whether either woman could be said to have consented when the consent was not fully informed in that they had not been told of the risk of infection to themselves and the consequent serious risk of harm to themselves.

The Court of Appeal ruled that the original trial judge ought to have allowed the jury the opportunity of considering consent as a defence.

Dica was retried, convicted and jailed.

However not everyone is happy with the the way in which the matter has been dealt with claiming that there may be other issues involved.

Roy Kilpatrick, Chief Executive of HIV Scotland, has been reported as saying: "We are particularly worried about the fact that prosecutions were brought in this case in respect of three sexual partners of Mr Devereaux who had not contracted HIV.

"We recognise that the primary motivation for bringing this prosecution must have been the actual transmission of HIV and that the prosecution would have felt it necessary to put the full context before the court.

"However, it would be alarming if the charges brought in this case open the door for future prosecutions in cases where no harm has been caused."

In the event that there is no actual transmission then one could argue that there was no grievous bodily harm or biological harm.  Even so there may be some who might argue that such good fortune should not enable someone to escape the law for what might otherwise appear to be irresponsible and reckless behaviour.  There is also the matter of psychological harm and the issue of consent as identified by the Court of Appeal.

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