Liability in Prostitution, Hitting and HIV Infection

INTRODUCTION

This question deals with potential criminal liability arising out of an incident between Beatka and Dave. The answer will analyse the various crimes that could possibly be charged as well as defences that may be open to either of them.

LAW AND FACTS

There are four specific incidents within the fact pattern that warrant examination. The first concerns Beatka working as a prostitute and Dave paying for sex. The second involves Beatka hitting Dave, and the third involves the possibility that Dave infected Beatka with HIV. The fourth concerns Beatka taking the money from Dave’s wallet.

Prostitution

Before dealing with the offence of non fatal offences against the person which will form the bulk of this answer, a brief examination must be made of the prostitution incident. There are two positions to be considered: Beatka and Dave. As regards Beatka, prostitution is not a criminal offence and so there is no criminal liability.

Concerning Dave, there are certain specific crimes where it is illegal to procure sex under the Sexual Offences Act^[1]. The only offence that might apply in this particular case is under section 23(1) of the Act which makes it an offence to procure a girl under the age of 21. However this only applies if the sex was procured for someone else. As it is there appears to be no way of criminal liability applying on the facts given.

Beatka hitting Dave

Specifically Beatka punched Dave in the face. It is clear that this potentially falls under the purview of non-fatal offences against the person. The difficulty is in determining which of the various charges could be filed against her.

At the lowest end of the sale is assault and battery. Assault requires the “apprehension of immediate force”^[2] while battery occurs when any unlawful force is inflicted on another person. It has been held that this includes even a mild touching^[3]. As noted before these are at the lower end of the category although they could be used by the prosecution as a safety net if they are uncertain about proving any particular injuries that will be seen to be necessary for the more serious charges.

In both cases the mens rea that is required is either intention to cause harm or a reckless disregard for safety^[4]. On the facts it is apparent that she has both threatened injury and physically caused batter. Additionally it would be difficult to deny either intention or recklessness from her actions of swinging a fist to hit Dave’s face. Therefore, subject to any defences, Beatka could certainly be charged with assault and battery.

These offences though would be considered the best case scenario for Beatka. More troubling are the potential offences of assault occasioning actual bodily harm^[5], assault occasioning grievous bodily harm^[6], and wounding all of which are contained within the Offences Against the Persons Act^[7]

Section 47 of this Act sets out the law for ABH and it has been supported by subsequent case law. The crucial questions go to the extent of injury that is needed and the requisite mens rea. The first question has been clarified by a number of cases. In R v Burstow^[8]the court confirmed that any type of injury will be applicable, while an earlier case had held that

“any hurt or injury calculated to interfere with the health or comfort of the victim”

would fall within the purview of ABH. It appears to be difficult to draw a distinction between the more serious cases of battery and the lesser cases of ABH. This confusion is magnified when considering the mens rea which was set out in R v Roberts^[9]. In this case the victim jumped from a car that was progressing at 30mph after the defendant had made an attempt to apply unlawful force. He had no intention to cause actual bodily harm, yet the court ruled that an intention or reckless disregard to cause unlawful injury was sufficient for a conviction of ABH.

The most serious of the offences under the statute fall within sections 18 and 20 and are wounding and/or inflicting GBH. The two offences are distinct though in the nature of the offence. In order for a finding of wounding to be made a very specific type of damage must be caused. In Moriarty v Brookes^[10] the court ruled that “the continuity of the whole skin must be broken”. The rule is so strict that even internal bleeding will not satisfy the definition^[11].

The question regarding GBH is similar to that for ABH; what is the extent of the injury? It is progressively more serious than ABH and has been described in DPP v Smith^[12] as simply being “really serious harm”

The mens rea under section 20 is that the defendant inflicts the grievous bodily harm or wound “maliciously”. The question of what was meant by this was settled in R v Mowatt^[13] where Lord Diplock emphasised that this can mean an intention to commit or recklessness. If the prosecution is convinced that intention can be shown, there is an option to use section 18 which is the more serious charge of wounding or GBH because it specifically reflects intention rather than ‘maliciously’.

On the facts there are no details as to the injuries suffered by Dave. Given that he was punched in the head it is likely that at least a charge of ABH will be preferred, with a possibility of GBH if the injury is sufficiently serious and wounding if the skin was broken.

Defences

While there are various defences open to defendants for these charges, there are none that would seemingly apply to Beatka.^[14]

Dave infecting Beatka

The third potential criminal element is the possibility that Beatka was infected by Dave with HIV. Once again this falls under the purview of non-fatal offences against the person. The crucial question is whether or not the infecting of another constitutes a type of injury that is actionable as an assault.

The law on this is relatively new and as such is subject to potential change as new cases reach the Court of Appeal and House of Lords. The seminal case though is R v Dica^[15]. In this case the defendant had engaged in sexual intercourse with the complainant and had insisted on not using contraception. Upon being diagnosed HIV positive the complainant made it clear that the defendant was the only person apart from her husband that she had engaged in intercourse with in 18 years. Judge LJ stated that

“those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict grievous bodily harm on a person from whom the risk is concealed and who is not consenting to it”^[16]

This judgement made it clear that spreading HIV can satisfy the element of recklessness that is required for the mens rea absent intent^[17]. The Court of Appeal did though leave open the question of consent as this was something that Judge LJ felt should have been left to the jury. This point of law has not yet found its way to the House of Lords; nonetheless it was confirmed again in the Court of Appeal in R v Konzani^[18] where the court upheld a lower court jury instruction which placed little emphasis on the dangers of having unprotected sexual intercourse.

Applying this law to the facts it appears that Dave is likely to be criminally liable for GBH, as all of the HIV cases have been prosecuted under this crime rather than ABH. The actus reus is present and the Dica^[19] and Konzani^[20] cases leave the mens rea in little doubt. The crucial difficulty will be evidentiary. It will be necessary to prove that he did in fact infect her, and also that she did not consent to the dangers. This has been at the heart of the Dica^[21] and Konzani^[22] cases and it may well be that the courts will permit a defence of consent in these cases. As such, while there may be legally criminal liability, securing a conviction may be difficult.

Theft

Finally, after Dave refused to pay Beatka she took the requisite amount of money from his wallet. The elements of theft are laid out in the Theft Act 1968^[23] and are “dishonestly appropriation of property belonging to another with the intention of permanently depriving the other”^[24].

Certain of these elements can be disposed of without difficulty or recourse to authorities. There is no doubt that Beatka appropriated the money from Dave, nor is there any doubt that the cash taken qualifies as property within the meaning of the Act.

The first difficulty could potentially arise under the element of “belonging to another”. Beatka would contend that she was staking money that she was owed. This argument would appear to fail in light of R v Gilks^[25] where the absence of a legal obligation negated the theft. In this case the money that se took still belonged to Dave and he was under no obligation to pay her absent a legal contract or agreement enforceable by the courts. As such she did indeed take money belonging to Dave.

Regarding the mens rea, this falls into two parts. The first is intention to permanently deprive. This is not controversial and there is no contention that she intended to return it. The second aspect is dishonesty. Because Beatka could claim that she believed she was entitled to the money by law section 2(1) of the 1968 Act applies and the test is subjective. None the less the Court of Appeal in R v Turner (No 2)^[26] permitted a jury instruction which advised the jury to consider whether such a belief was genuinely held by considering the surrounding facts. Other than this specific circumstance the appropriate test is an objective one as set out by R v Ghosh.^[27]

Regardless of the test, it is very likely that Beatka will be criminally liable for theft.^[28]

CONCLUSION

In conclusion it is likely that Beatka will be criminally liable for theft and either ABH or GBH. Dave will likely be criminally liable for GBH.

BIBLIOGRAPHY

Allen M‘Criminal Law’ 7^th Edition

Published by Oxford University Press

Clarkson CMV‘Criminal Law, Text and Materials’ 5^th Edition

Published by Sweet and Maxwell

Jefferson M‘Criminal Law’ 6^th Edition

Published by Longman

Lacy N‘Reconstructing Criminal Law’

Published by Butterworths

Lewis P‘Sexual Offences Act 2003’

Published by the Law Society

Martin J‘Unlocking Criminal Law’

Published by Hodder and Stoughton

Norrie AW‘Crime: Reason and History’

Published by Butterworths

Offences Against the Person Act (1861)

Theft Act(1968)

Theft Act(1978)

C (A Minor) v Eisenhower [1984] QB 331

DPP v Smith [1961]AC 290

Moriarty v Brookes (1834)6 C & P 684

R v Burstow [1997]4 All ER 225

R v Dica [2004]EWCA Crim 1103

R v Gilks[1972] 3 All ER 280

R v Ghosh [1982]2 All ER 689

R v Konzani [2005]EWCA Crim 706

R v Lamb [1967] 2 All ER 1282

R v Mowatt [1968]1 QB 421

R v Roberts [1971]Crim LR 27

R v Thomas (1985) 81 Cr App Rep 331

R v Turner (No 2)2 All ER 441

R v Venna [1975] 3 All ER 788

1

Footnotes

^[1] (1956) as amended 2003

^[2] R v Lamb [1967] 2 All ER 1282

^[3] R v Thomas (1985) 81 Cr App Rep 331

^[4] R v Venna [1975] 3 All ER 788

^[5] ‘ABH’

^[6] ‘GBH’

^[7] (1861)

^[8] [1997] 4 All ER 225

^[9] [1971] Crim LR 27

^[10] (1834) 6 C & P 684)

^[11] C (A Minor) v Eisenhower [1984] QB 331

^[12] [1961] AC 290

^[13] [1968] 1 QB 421

^[14] Provocation is only a defence to murder and not to a lesser charge.

^[15] [2004] EWCA Crim 1103

^[16] ibid at paragraph 59

^[17] An argument that intention was present in this or any comparable case is unlikely to succeed.

^[18] [2005] EWCA Crim 706

^[19] ibid n14

^[20] ibid n17

^[21] ibid n14

^[22] ibid n17

^[23] As amended by the Theft Act (1978)

^[24] ibid section 1

^[25] [1972] 3 All ER 280

^[26] (1971) 2 All ER 441

^[27] [1982] 2 All ER 689

^[28] Robbery will not be a possibility unless the prosecution can link the assault and theft in one even which in the facts does not appear to be tenable.