In “Criminal Law and the Sexual Transmission of HIV: R v Dica” (2005), Matthew Weait contends that the potential criminalisation of those who are most likely to be exposed to HIV transmission may lead to discrimination and public policy issues. Weait highlights that the Court’s decision in Dica raises three concerns.
First, Weait investigates the Court’s reasoning that, for cases within a sexual context involving an infectious disease-related harm, there is a fundamental difference between deliberate harming and the deliberate taking of risks (as a consequence of harm). He reconstructs the Court of Appeal’s argument for this distinction before suggesting that the Court should have indicated more explicitly that the degree of risk associated with the defendant’s conduct should not influence whether or not a defence of consent is applicable. Furthermore, the Court argued that whether or not the defence of consent is available will depend ultimately on the nature of the relationship between the defendant and victim. However, this argument would result in the incorrect notion that criminal liability for non-fatal offences depends on the…show more content… He demonstrates that the implications of this view may produce an “astonishing” (p.128) and radical shift in our understanding of responsibility and blame for those who are diagnosed with HIV. The Court stated that if the victim were to remain ignorant of the risk of a consequent illness, then it is unlikely that he or she would consent to take this risk. From this claim follows the corollary: if a person who has HIV fails to inform his partner of his condition, then the likelihood of consent by the victim will significantly decrease. But in identifying the conditions for punishment and stigma of the HIV/AIDS community, the resultant marginalisation of the HIV/AIDS community is