R v B
Court of Appeal
Citations:  EWCA Crim 2945;  1 WLR 1567.
The defendant and the complainant had sex. The defendant was aware that he was HIV positive at the time, but did not inform the complainant. He told police that the complainant had consented to sex. However, the complainant said that he had attacked and raped her. Both agreed that either way, the defendant had failed to disclose his HIV status to her. This fact was provided to the jury.
The defendant was convicted of rape. The defendant appealed on the basis that the jury should not have been told his HIV status nor that the complainant was unaware of it. That information, he argued, was irrelevant and risked prejudicing the jury against him. The prosecution argued that it was relevant since even if the defendant’s account of events was correct, failing to reveal his HIV status could vitiate the complainant’s consent.
- Does the defendant’s failure to disclose a sexually transmissible disease before sex vitiate their partner’s consent?
The Court of Appeal quashed the conviction. The defendant’s failure to disclose his HIV status was irrelevant to the issue of consent to sex.
This Case is Authority For…
Failing to disclose a sexually transmissible disease (STD) does not vitiate consent to sex act. The presumption of non-consent under s.76(2)(a) of the Sexual Offences Act 2003 (deceit as to the nature or purpose of the sex act) is not relevant because STD status does not affect the nature or purpose of a sex act.
The Court left open the question of whether consent would be vitiated where the defendant actively deceived the complainant into thinking he had no STDs. However, the Court of Appeal in R v Lawrance  EWCA Crim 971 later stated that there is no distinction between ‘active’ and ‘passive’ deception.
Other cases have held that failing to disclose sexually transmissible diseases can lead to liability for offences against the person if the complainant is infected: R v Dica  EWCA 1103.