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Consent, Knowledge and Precaution: A Critical Analysis of the Criminalisation of the Reckless Transmission of HIV and Other Serious Diseases

This article examines the criminalisation of the reckless transmission of disease in England and Wales. The defence of consent to bodily harm and the principle of informed consent are crucial to the foundations of this discussion. This defence gives an HIV infected party freedom to behave recklessly and rely on the knowledge of the victim as a defence for their reckless behaviour. The criminal recklessness of an HIV infected party has also been argued to be negated by the careful use of precautionary measures during sexual activity. This means that an infected party can engage in sexual activity in the absence of full disclosure of their condition to their sexual partner. This promotes neither honesty nor openness. In fact, it encourages deceit and dishonesty. The current law on the reckless transmission of disease remains unclear. However, careful analysis of the legal and moral debates surrounding reckless transmission of disease will aid discussion about the future development of this area of law.