Analysis of Sexual Offences Act - Case Study Example

CRIMINAL LAW A court is d as the moral guardian of the individuals of society and serves as the custodian of their rights. It takes serious notice of any offence, presented before it or brought to its notice for judgment, in respect of violating the statute(s) of law and damaging the individual(s) mentally or physically or both. Criminal Procedural Code defines an offence in these words: “Offence means any act or omission made punishable by any law for the time being in force; it also includes any action respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1871.” Sexual Offences Act 2003 signifies the offences related to sexual assaults and immoral offences. The Act describes the nature of such offences and suggests penalties against such acts and omissions. In the same way, the Act condemns any sexual activity practiced or performed without free consent of both the parties to the contract and views such sexual act an offence, which is based on fraudulence, undue influence, coercion, misrepresentation or any other related act that reveals the non-compliance of the aggrieved party and hits his/her freedom of choice. Malignantly doing any act known to be likely to spread infection of any disease dangerous to life is a serious offence and the offender of such act is liable to be punished under the section 269 of the Code of Criminal Procedure. In the same way, Law forbids a person undergoing contagious and venereal disease(s) from entering into sexual relationship with any other person without bringing to the knowledge of the other all information regarding his/her infectious disease, as well as taking protective measures necessary to save the partner form bodily harm of transmitting the disease he suffers. In addition, the statute of law not only condemns involving into sexual intercourse without the free will of the parties, but also it does not allow any such act in which the element of misrepresentation involves. Misrepresentation stands for the statement made by a party to a contract, that a thing relating to it is in fact in a particular way, when he knows it is not so. Sexual Offence 2003 is the outcome of the changes that took place with the induction of new laws as well as discovery of new diseases afflicting the individuals of society. Free sex with the consent of the parties as well as homosexual activities are also among the significant factors along with the discovery of human immunodeficiency virus known as HIV more than a decade ago, to bring in new laws and amend old ones for the benefit of the public. Having sexual intercourse with or by the person afflicted with this virus is likely to transfers the disease. It is in the wake of inclusion of this disease that many countries have introduced laws and passed bills related to the restriction of wilful sexual performance leading towards the transmission of HIV. Also, precautionary measures including use of condom and informing the partner regarding the disease are strictly directed by the medical counsellors. Before discussing the cases related to the HIV transmittable diseases, it will be advisable to define venereal and contagious diseases. Biology on-line defines the term “contagious disease” in these words: “An infectious disease transmissible by direct or indirect contact; now used synonymously with communicable disease.” Retrieved from "http://www.biology-online.org/dictionary/Contagious_disease" This page has been accessed 558 times. This page was last modified 21:16, 3 October 2005. The case of Smith v. Davis is a precedent for the courts to imitate and follow for the judgement of relevant cases of transmitting bodily harm through HIV or any venereal syndrome. Mr. Davis had been afflicted with the HIV-positive status, and developed unprotected sexual relationship with Miss Smith, without revealing to her the facts about his infection. Davis never intended to inform her about his medical status, nor did he take any measures for the safety of his sex partner. On coming to know regarding Davis’s transmittable disease, Miss Smith prosecuted the case in the court of law. As there was no reason to doubt regarding Davis’s mala fide intention, he was convicted by the court. The court verdict revealed the fact that the sexual relationships were not based on the free consent of the complainant, as Section 74 of the Sexual Offences Act, 2003 defines “Consent” in these words: “For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.” As in the case above, though Miss Smith freely agreed to develop sexual relationship with Davis, but she was absolutely ignorant of anything about the disease of her partner; thus, her choice cannot be declared as free one. Had she acquainted with the venereal disease of Mr. Davis, she would have never been entered into relationship with the latter. In reaching this conclusion, the court relied in particular on the opinion of McLachlin J in the Canadian case of R v Cuerrier [1998] 2 SCR 371. The court’s verdict reminded the famous R v Clarence case that was decided in 1888, in which the offender named Clarence had been suffering from a contagious disease gonorrhoea. He did never disclose the health problem before his wife and practised routine sexual performance with her, who was also affected with the same problem because of the physical relationship between the two. In the beginning, Clarence was convicted of the Offences against the Persons Act 1861. The section 20 of this Act clearly states: “Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanor, and, being convicted thereof shall be liable ... to be kept in penal servitude…” The same is the case with Zimmerman. In the case of Zebulon v. Zimmerman, the court observed almost the same verdict. The defendant, named Zechariah Zebulon, got positive-HIV in a medical test and was directed by his medical counsel to use condom while doing sex. Also, he was directed to inform his sex partner(s) regarding his health status, but he never observed it. Instead, he violated the law by having intercourse with a woman named Zimmerman, transmitted his HIV to her and thus exercised bodily harm to the woman. It was disclosed after six months of their relations, when Zimmerman had got an opportunity of testing her HIV. There was positive result, and really shocking for her. There was no doubt of the reason behind that all. As she had insisted Zebulon for using condom during sex, but was convinced to use alternative contraceptive devices. Thus, she was kept in the dark, and by doing this Zebulon violated the terms of law and was guilty of committing fraudulence and misrepresentation on the part of his partner. The victim quite unknowingly consumed oral contraceptives to evade pregnancy and suffered from HIV. “It was not disputed that Mr Zebulon was the source of her infection and he was convicted both of unlawfully and maliciously inflicting grievous bodily harm on Ms Zimmerman, contrary to section 20 of the Offences Against the Person Act 1861, and rape, contrary to section 1 of the Sexual Offences Act 2003 on invalidating Ms Zimmerman’s consent. In reaching this conclusion, the court relied in particular on the opinion of McLachlin J in the Canadian case of R. v. Cuerrier [1998] 2 SCR 371 in the Supreme Court of Canada on 27th March, 1998. The judge was therefore clearly entitled to direct the jury that the conclusive presumptions laid out in section 76 of the Sexual Offences Act 2003 could be made. The court held that in the context of the wording of section. 265, an accused’s failure to disclose that he is HIV‑positive is a type of fraud which may vitiate consent to sexual intercourse.  The essential elements of fraud in commercial criminal law are dishonesty, which can include non‑disclosure of important facts, and deprivation or risk of deprivation.(Quoted in the Judgements of the Supreme Court of Canada, 1998:2). The first case of HIV transmitting case appeared in 2003 in England, and a man named Muhammad Dica, having positive HIV-status, was convicted on October 14th 2003 for having sexual intercourse with two women without taking precautionary or protective measures and causing a serious threat of harm to their body and life. The accused, Mohammed Dica, was convicted of two counts i.e. unlawfully and maliciously inflicting grievous bodily harm on two women for infecting them with HIV. The accused had never informed the women about his positive HIV status, and thus they allowed him do all without the use of condom. The case enjoys the status of the first conviction for the sexual transmission of disease in England as well as the first ever for the transmission of HIV. The contents of Section 76 of the Sexual Offences Act states: Conclusive presumptions about consent (1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed- (1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed- (a) that the complainant did not consent to the relevant act, and (b) that the defendant did not believe that the complainant consented to the relevant act. (2) The circumstances are that- (a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act; (b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant. The contents specifically maintain that “any relevant act” related to violating free consent makes the contract voidable. As the act committed by the sex offenders in the above cases served as fraudulence and misrepresentation, as well as threat to bodily harm, the court made the judgement that the accused had not got the consent of the complainant. It is therefore, the defendant (accused did not give her consent of having sex with the patient undergoing HIV positive status, and thus no free will of the complainant was sought by the defendant, that is an offence under the Sexual Offence Act, 2003. REFERENCES Aidsmap. (2003) Criminalising HIV Infection. (Quoted in http://www.aidsmap.com/en/docs/3AED05A3-9F58-4E19-AB21-3615804CCFE0.asp) ESU-Essex Court Chambers. National Mooting Competitions. (2003-4). (Quoted in http://www.essexcourt.net/mooting/problem.asp?p=22) Wagner, Adam. (2002). Criminal Law Research. (Quoted in http://adamwagner.co.uk/documents/AdamWagner-ConsentintheCriminalLaw.pdf) Criminal, Deliberate and Reckless HIV Transmission (Quoted in http://www.avert.org/criminal-transmission.htm). Chalmers, J. (2002) The criminalisation of HIV transmission ETHICS, LAW, AND MEDICINE http://jme.bmj.com/cgi/content/full/28/3/160#BIBL http://www.opsi.gov.uk/ACTS/acts2003/30042--b.htm http://www.opsi.gov.uk/ACTS/acts2003/20030042.htm The Judgements of the Supreme Court Canada, 1998 (Quoted in http://scc.lexum.umontreal.ca/en/1998/1998rcs2-371/1998rcs2-371.html) Read More