‘Biological’ battery?

Mohammed Dica, a Somali-born resident of Mitcham, London, on 14 October was found guilty on two counts of ‘biological’ grievous bodily harm, after he infected two women with the HIV virus.

Dica has not yet been sentenced, but could face up to 10 years in jail. He has already been christened ‘The Aids assassin’ by newspaper headlines. ‘My sentence has just begun’, said Deborah (not her real name), the second of Dica’s victims. ‘But I can now move on, knowing that justice has been done.’ Justice? Revenge, maybe; but there’s no place for justice in this.

You can’t help but feel sympathy for these two women. All accounts (except for his wife’s) have portrayed Dica, a father of three, as a bit of a bastard, who lied and deceived his way into his mistresses’ beds and affections. He told them that he was a lawyer, a Gulf War veteran and could speak 10 languages; he told the first woman that he had had a vasectomy, and the second that he loved her and wanted her to have his children. The women, apparently, were then persuaded to have unprotected sex with Dica, from whom they then contracted HIV. They then found out that Dica both knew beforehand that he was HIV positive, and that he had a wife and children.

But however bad Dica’s behaviour, and however terrible its effect on his victims, the idea of resolving this matter in court is as disturbing as it is bizarre. What kind of society threatens to send people to jail for having unprotected sex? What kind of law court feels equipped to rule on such intimate matters as the kind of contraception that people use in the privacy of their bedrooms? And what is ‘biological’ grievous bodily harm (GBH) anyway?

‘There can be no better example of grievous bodily harm than infecting with HIV’, the prosecutor, Mark Gadsen, told the jury in this case. He explained that grievous bodily harm could be used to describe somebody being attacked with a hammer, and that it could also include psychological harm from being stalked or getting nuisance calls. Whatever ‘biological bodily harm’ is, it seems to have benefited from the ever-expanding definition of GBH, and how it is caused.

How is it possible to equate giving somebody HIV through consensual sex with being battered with a blunt instrument? Consensual sex is surely as far removed from being the victim of a physical attack as it possibly could be. And how is it possible to equate the act of knowingly putting a sexual partner at risk of infection with bombarding them with unwanted phone calls? Because the perpetrator knows he is behaving badly, or the fact that the victim will be upset by the consequences? Who knows. Dica is the first person to have been found guilty of the crime of inflicting ‘biological’ grievous bodily harm – which presumably reduces the need for precise explanations.

Whatever the garbled rationale behind this notion of HIV transmission as some form of GBH, this case reinforces the notion that consensual sex can be a crime, and that the courts both should, and are able to, administer punishment.

In order to convict Mohammed Dica, the court had to prove not only that he had HIV prior to sleeping with his two victims, but that he intentionally infected them with it. Dica, of course, claimed that both women knew that he was HIV positive, while the women claimed that they did not. In this case of his word against theirs, how is the court supposed to know the truth about who knew what? Even the notion that the courts should be able to second-guess such conversations, and make decisions about such murky areas of intimate relationships, illustrates the worrying degree of involvement that today’s estranged society allows the law in our private lives.

Aside from the difficulties involved in prosecuting such a case, there is a highly dubious philosophy behind the notion that transmitting diseases such as HIV should be a crime. Back in 1998, government ministers were proposing to create a new offence of ‘intentional transmission of a disease with intent to cause serious harm’ – and eventually decided that there was no need, because (as this recent case has proven) such cases could be brought under existing legislation (1).

How one would prove ‘intentional transmission of a disease with intent to cause serious harm’ strays dangerously close to the area of thought crime – you are prosecuted, not for having HIV or transmitting HIV or even transmitting it intentionally, but for what you were thinking when you were transmitting it.

And why stop at HIV? There was an attempt in England last year to charge a doctor with grievous bodily harm for infecting a solicitor with genital herpes – the case was dropped after it emerged that the woman had reported symptoms 10 months before having sex with the doctor, and the doctor could not be proven to have known that he had herpes. But what about people who take their flu or chicken pox to work, aware of the danger it could pose to their colleagues?

Taken to its logical conclusion, this preoccupation with spreading disease could result in a rash of court cases about everything. As Charles Foster, a barrister specialising in medical and professional negligence, said: ‘It is it theoretically possible, for instance, for someone with flu to be criminally liable to people he may infect.’ Proof might be difficult with an illness that is so widespread – ‘But if, for instance, someone knew he had tuberculosis, and came in coughing and spluttering over the person at the next desk, then he could be prosecuted’ (2).

In all likelihood, though, it will remain restricted to sex – in particular, HIV. Because however rare the reality of cases like this one are, they tap into a widespread fear that sex can be dangerous, and sexual relationships are potentially toxic. A bogeyman character like Mohammed Dica, out to wine you, dine you, love you, leave you and on the way infect you with a virus like HIV, which won’t kill you immediately but will hold the threat of death over your head for years, as an ever-present reminder of your reckless behaviour, are fitting symbols for our times.

For this case is not about flu, TB, or unintended pregnancy and the various other adverse consequences of unprotected sex. It is about HIV/AIDS, and plays off the role that this continues to play as a potent scare in our fearful world. From the AIDS panic of the 1980s, when official propaganda inflated statistics and massaged science to promote the message that unprotected sex kills you, HIV/Aids has retained the status of the Grim Reaper, stalking all those who dare have intercourse without a condom. Court cases such as these buy into such panics – with dubious consequences for those who tragically suffer from HIV/AIDS.

A number of AIDS charities have spoken out against this ruling, for obvious reasons. Derek Bodell, National AIDS Trust chief executive, said: ‘Today’s case is a tragedy for all parties.
Treating cases like this as a criminal offence will not prevent such incidents in the future, and on the contrary may be counterproductive. People with HIV should feel able to disclose their HIV status without fear of rejection or discrimination.’ A statement from the HIV charity George House Trust said: ‘Every adult has a responsibility for their own consenting sexual behaviour and for protecting themselves. Criminalising the transmission of HIV simply puts all of the responsibility on people living with the virus.’ (3)

Furthermore, surely the logical consequence of cases such as these is to criminalise unprotected sex, on the grounds that it can so easily cause some kind of physical/psychological/biological grievous bodily harm. And from there, to criminalise sex – because of the sense of emotional betrayal when you realise that your bedfellows have lied to you about their jobs, skills and marital status.

It is a tragedy that the two women in this case have ended up suffering with HIV. But it is a travesty that such a case should come to court.

Read on:

spiked-issue: Love and sex

(1) Justice for HIV man who sentenced lovers to death, The Times (London), 15 October 2003

(2) HIV conviction is a landmark case, BBC News, 14 October, 2003

(3) HIV man guilty of infecting lovers, BBC News, 14 October 2003