Risky sex and manly diversions: contours of consent in HIV-transmission and rough horseplay cases

Abstract

Criminal law deems certain conduct unlawful even if the parties involved consented to the risks inherent in such behaviour. Thus violent bodily harm intentionally inflicted remains unlawful notwithstanding it was consensual and its purpose is sexual gratification of one or both parties. This chapter examines the role of consent as it applies as a defence to a charge of recklessly inflicting bodily harm under s.20 of the Offences Against the Person Act 1861. It compares risky activities such as ‘rough horseplay’ that have resulted in serious injury against the reckless transmission of HIV (likewise categorised as grievous bodily harm) by unsafe sexual intercourse, and seeks to address the starkly different judicial attitudes towards claims that such harms are made lawful by the victim’s consent. Why have the courts continued to treat the question of consent very lightly in cases involving dangerous “manly diversions”, whilst adopting a much stricter line in cases of ‘risky sex’ that lead to HIV transmission? It is clear that the courts have treated HIV as a uniquely serious type of harm, and have been influenced by the deeper questions about sexual autonomy and privacy raised by the manner in which HIV is transmitted. This chapter suggests an analysis of this fissure in consent jurisprudence through the ‘public interest’ dimension that has guided the courts on the criminalisation of risky activities. It focuses on the ways in which judges have used legal authority selectively to accentuate the different social and historical dynamics of horseplay and HIV cases respectively.