Principles of Criminalisation for Sexually Trasmitted Diseases

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The issue of whether it is justifiable to prosecute the reckless transmission of diseases and pursue it within a criminalisation framework is a highly contentious and pressing one which has sparked rigorous legal debate and legislators, both in the UK and internationally, have been grappling with the controversy of deploying the criminal law to prosecute reckless transmission of sexually transmitted infections (STIs). Having generated a plethora of well articulated academic analysis, the invocation of penal statutory legislation to eliminate the deliberate or reckless dissemination of sexually transmitted infections holds great significance, albeit effectively actualizing a confounding set of realities alongside. While it is legitimate in the UK jurisdiction to convict a HIV positive individual who put others at risk by failing to disclose his medical condition of an offence under section 20 of the Offences Against the Person Act (OAPA) 1861, the situation sits uncomfortably with less severe STIs like herpes. In the following paragraphs, I will illustrate whether criminal sanctions against reckless transmission of STIs under such circumstances are necessary, directing my focus on herpes especially, pursuant to the theories of criminal law. In 2003, despite the reservations expressed by the Home Office, the Crown Prosecution Service (CPS) adopted a policy of prosecuting reckless transmission of HIV under the OAPA 1861, after the first prosecution in England arose. Until the case of Golding, the convictions for transmitting STIs in England and Wales in recent times have concerned only HIV. In two of the landmark cases, R v Dica and R v Konzani, the Court of Appeal held that a person aware of his HIV positive status at the relevant time is to be liable for recklessly causing serious bodily harm if he or she so transmits the infection to the partner. It was also

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