It may amuse the more school-boy-humoured men amongst us to think of one’s penis as a “deadly weapon.” Hee hee hee. Unfortunately for some men that literally is the case.

An article in the Guardian on Thursday, 2nd August brought my attention to the case of a man about to be sentenced for grievous bodily harm after he had unprotected sex with another person without disclosing the fact that he was HIV positive. The article was written by Deborah Jacks of the National AIDS Trust and couldn’t go without comment.

Ms Jacks doesn’t think that this is the correct course of action and asks: “Was this how we were meant to respond to HIV? Was this the shared responsibility for sexual health some of us remember hearing about in the 1980s and 90s?” Shared responsibility. Now there’s an entire minefield in the space of two words. She is referring to the fact that both parties in a sexual relationship bear responsibility – for their own health, primarily. And, of course she is right. However, this is a perfect illustration of how someone can both be right and utterly miss the point within the same sentence. It seems to me to be the height of absolute stupidity to have unprotected sex without being fairly certain that your partner isn’t carrying an STD. To tell you the truth I have very little sympathy for people who catch any STD through unprotected sex. However, what sort of creep knows they have something as deadly as HIV and has unprotected sex with an unknowing partner? Such a person is fully worthy of utter revulsion whether or not their sexual partner is naïve to the point of brain-deadeningly stupid. Carelessness does not justify a crime. Lets say I become lax about my home security; perhaps forgetting to close my windows and even leaving my door open when I go out to work. In one sense I’m simply asking for trouble. However, if someone enters my house and steals my possessions are their actions any less reprehensible because I’ve been careless? I think not.

Ms Jacks laments the fact that “the courts have turned to 19th-century law to put people behind bars, and the government has let it happen without demur.” When she talks of 19th-century law in such derogatory tones she is referring to the Offences Against the Person Act of 1861, under which such prosecutions are made. I’m not sure what she has against this act since, along with some subsequent amendments, it is a fundamental legal basis of prosecution for major crimes: pretty much any type of physical assault. I’m not one to shy away from lamenting bad law, as readers of this blog will know, but this piece of legislation is one of the exceptions. Manslaughter, murder, rape, assault, and bodily harm are all included in its remit. I’m not sure why Ms Jacks despises it. Because it’s old? Congratulations! You’ve just discovered the worlds thinnest argument.

She asks “Why … [are] we throwing people into prison for HIV transmission … [and will] such prosecutions make the sex we are all having any safer.” Firstly, we’re not throwing people into prison for HIV transmission. Get a grip of yourself woman. You aren’t going to jail if you don’t know you are infected, or for any accidental form of transmission. The only type of transmission that is covered in the case law is when the infected person knows they have HIV, fails to tell his or her partner, and has unprotected sex knowing full well the consequences. Are these prosecutions making our sex safer? Well, it’s hard to say. Some of the people convicted, such as Feston Konzani and Mohammed Dica, had several partners, and would most probably have had more were it not for the fact that they were caught. So, in terms of their future partners we must say that the sex is probably a little bit safer by virtue of not meeting these men who are now serving long sentences at Her Majesty’s, and, I must say, my own pleasure. And letting such people see the consequences of this recklessness might just stand a chance of deterring others tempted to infect someone with HIV for kicks and giggles.

Ms Jacks then argues: “Of course, if someone intends to harm a sexual partner by transmitting HIV, that is a malicious assault and should be punished.” It’s difficult to see just how someone doesn’t intend to harm their partner, albeit implicitly. What they hell do they think will happen if they, having HIV, have unprotected sex with someone? It’s like aiming a gun at someone pulling the trigger and trying to convince someone that you never intended to blow your friends face off. Whoopsie! What the hell did you think would happen? It’s basic cause and effect here, not some obscure version of quantum physics we’re expecting people to comprehend. It’s hard to see how the concept of not intending harm is of much defence here anyhow. Take the example of a man driving home from a bar drunk. He doesn’t intend to kill anyone – not directly – but when he falls asleep at the wheel, mounts the footpath and kills a bunch of people do we, and should we, hold him responsible for their deaths? Of course we should, whether he intended the deaths or not.

Her next point is simply downright false: “The prosecuted cases, however, have been different – people in denial, scared, ill-equipped to discuss their infection.” Lies, Ms Jacks, lies. I’m a legal researcher by profession and I can tell you that perpetrators in several cases cannot by a long shot fit that description. For brevity I refer the reader to the two cases I mentioned above: “R v Mohammed Dica” and “R v Feston Konzani,” both of which can found at In the first case Mr Dica was in a long term relationship AND he always insisted on NOT wearing a condom. He had plenty of opportunity to protect and tell his partners. He didn’t. In the second case Mr Konzani (who infected three women, one of whom was a 16 year old girl, and a virgin before Mr Konkani’s exploits), spoke in terms of “eradicating women,” according to witness testimony. In any event it’s a moot point because even if some people are in denial or find themselves unable to talk about their condition, how hard is it to insist on the use of a condom at the very least? In this day and age few people would object if their sexual partner made such a request, and nor would such a request raise any suspicions. It just makes you look, well, sensible. Again an example can help illustrate the point further. Lets say Bob runs a mountain climbing company. Some of his gear is now old and worn and unsafe. However, he doesn’t have the money to replace it and has a number of rich clients coming to climb. If he turns them away he’ll maybe go bankrupt with everything that that involves. He’s scared, in denial and doesn’t want to tell anyone about his dodgy equipment in case they pull out of the climb, so he convinces himself that everything will be OK. When the climbing party set off several of them are killed or injured when the ropes and harnesses give up the ghost. Is Bob liable?

Ms Jacks believes that we should understand if not condone a failure to disclose HIV status. She states that, “With high levels of stigma and discrimination, telling someone your HIV status takes time and care.” Again true. Again utterly missing the point. If you have HIV you simply don’t have sex with anyone unless they know of your condition. If you have a difficult time talking about it you don’t just say, “Oh well, fuck it, I’ll shag a few people regardless until I find a way to tell them.” Perhaps over a romantic candle lit dinner: “Honey, you know how we’ve been fucking like rabbits for a few months, well there’s really something you should know.”

Continuing, Ms Jacks states her belief that: “We do not as a society have to punish every action we deplore.” I wholly agree with this sentiment. How very libertarian it is. In fact, I have argued several times about the danger of banning behaviour that doesn’t breach the fundamental rights of other people. However, infecting someone with HIV without their knowing is hardly a case of not breaching someone’s fundamental rights. So, whilst it is true that we shouldn’t punish every, even most, actions we deplore, we certainly should when fundamental rights are at stake? Not so for Ms Jacks, she thinks that such prosecutions will “make those actions more likely to occur.” This is a fairly definite empirical prediction, and unfortunately, but not surprisingly, Ms Jacks provides absolutely no evidence for it. Not one single digit of a statistic. In any event there has only been a handful of such cases, so it’s hardly causing social disintegration or the public health disaster that Ms Jacks refers to in her article. Moreover, she fails to consider the deterrent effects of punishment. Even if we leave aside the not unrealistic proposal that such prosecutions might deter others from sowing their poisonous oats, it is beyond argument that punishment at least deters the people in question from infecting anyone else. If Mr Dica or Mr Konzani had been caught earlier and imprisoned then at least a few of their victims would never have got infected with HIV. This deterrence value of punishment is a fact.

Of course, Ms Jacks offers alternatives, which aren’t really “alternatives,” since they could easily work alongside prosecution as a way to tackle the issue. Firstly: “end the stigma that makes some people tongue-tied or in denial about their HIV status.” Yes, great, lets! Secondly, “provide properly resourced care to help people come to terms with their diagnosis.” You mean another service alongside several hundred other services doing just that? Thirdly, “negotiate condom use and talk about HIV to partners, encourage everyone to use condoms…” Everyone? Monks? Lesbians? People trying to have babies? Yeah, OK, cheap shot, but I’m getting bored of your article.

Thank God that’s were it ended.

Stephen Graham