Critically evaluate the decision in R v Dica (2004)

The decision by the courts in R v Dica (2004) had a considerable impact on the law. In this case, Mohammed Dica had unprotected sex with the woman, without informing them that he was HIV+. With the first woman, Dica insisted that intercourse was without protection, informing her that he had a vasectomy. With the second woman, he'd used protection but as the relationship progressed, he had unprotected sex with the woman.

Dica claimed that both women were aware of his HIV+ status and had consented with full knowledge of the risk of infection. Dica was, however, found liable under s20 of the OAPA 1861, knowingly suffering HIV and recklessly transmitted it through sexual intercourse.

Effect

The effect of this judgment in relation to s20 of the OAPA 1861 is to remove some of the outdated restrictions against a successful prosecution of those who knowingly suffer an STD and recklessly trasmits it through sexual intercourse.

Additionally, the decision in R v Dica (2004) was solely centered around 'consent'. Neither of Dica's victims had the ability to consent. Of course, they consented to the sexual intercourse, but they did not consent to the disease with which they became infected with. The ruling appears to introduce a different and more generous rule to be applied to risk taking in the sexual context. Much of the difficulty in Dica stems from the fact that he was charged and convicted under s20 of the OAPA 1861 which requires the defendant to cause a wound or inflicting grievous bodily harm and be reckless as to whether he does so. For example, in JCC v Eisenhower (1984), the victim was hit in the eye with a shotgun pellet. He bled under the surface but it did not break into the skin, therefore it wasn't held to be a wound.

--> However, in regard to the issue of consent, Dica stated that both women were aware of his HIV status, however, the court of appeal argued that consent was needed to be confirmed. Other law critics state that there was a critical distinction between risk taking in the sexual context and giving informed consent.

The women in Dica's case could not give informed consent to something they were both ignorant to. From this, it can be seen that informed consent can act as a defense. Equally, the defendant may also plead consent if he honestly believed in the victim's consent.

Due to the decision made in Dica (2004), the law recognises that there can be implied consent to STD's. However, law critics state that there should be a new law on the risk of transmission.

In a similar case- R v Clarence, Clarence had sexual intercourse with his wife, knowing, although she did not, that he had gonorrhoea. His wife contracted gonorrhoea as a result and suffered GBH. He was convicted under s20 of the OAPA 1861.

Similarly, in Konzani (2005), the defendant, who was HIV+, had sexual intercourse with several women. The women became infected as a result and he was convicted under s20 of OAPA 1861.

The court in Konzani made it clear that concealment of HIV status on the part of the defendant almost inevitably means that the victim was deceived.

In conclusion, the decision in R v Dica has had a considerable impact on the law, especially in elation to consent as it removed some of the outdated restrictions of those, knowing they are suffering HIV and recklessly transmitting it through sexual intercourse.