In order to critically evaluate the legal responses to the 'violence' of barebacking we must first understand a little about the subject, and then focus on the problems associated with the phenomenon. In this paper I will attempt to address some of the key cases surrounding the subject and also critically analyse the existing laws that govern the area.
Bareback sex had its beginnings established from the moment people began having sex, but the term itself is far younger - in fact it "barely existed pre 1997" (Dean 2009). Bareback sex is the terminology originally coined as a sexual reference to men having unprotected anal sex with other men but before the sexual reference was introduced, barebacking only related to riding a horse without a saddle, a reference which still applies today only in a much more liberal sense. The concept of the word "bareback" and "barebacking" took off in the 1990's when pornographic film studios began producing video titles featuring men having unprotected sex with other men.
There are many theories as to why gay men take sexual risks but no definitive answers. For the past thirty years there have been an abundance of safe sex messages advocating condoms and avoiding death and sickness, the health services have improved and offered HIV sufferers treatments and the chance for long-term survival. It is harsh to tar one group with the same brush - gay men as much as anyone else wants the HIV epidemic to end. Dean notes:
"In view of statistics on new seroconversions, some AIDS educators have begun to acknowledge that, unlikely though it may seem, remaining HIV-negative in fact poses significant psychological challenges to gay men" (Dean, 2000)
After years of activism, risk awareness, and AIDS prevention, increasing numbers of gay men are not using condoms, and new infections of HIV are on the rise. Odets (1995) was one of the first mental health professionals to question why gay men who had thus far escaped becoming infected with HIV were placing themselves at risk for becoming so. In Britain, the latest research reveals that a third of gay men have occasional unprotected sex. During the first wave of the AIDS epidemic, sexually active gay men began using condoms during anal intercourse (Martin, 1987).
The problem that the UK faces is that the laws governing such acts and practices are at best archaic. Because the law is currently confused and there is, as yet, no set guidance from the Crown Prosecution Service on what should be prosecuted, we have to base our advice on the decisions made in those cases and this advice may change in the light of future appeals and other cases.
A number of people in the UK have been prosecuted and jailed for transmitting HIV to their sexual partners and all of the prosecutions in England and Wales to date have been brought under Section 20 of the Offences Against the Person Act. The glaring problem is that the Act was enacted in 1861 and was created long before the AIDS epidemic - thus prompting the Crown Prosecution Service to react and to publish guidelines for prosecuting people who recklessly or intentionally transmit HIV or other sexually transmitted infections in March 2008.
Criminal convictions for exposing another person to HIV through sex are very rare. Since the beginning of the AIDS epidemic, more than 300 people have been criminally prosecuted for exposing another person to HIV but yet only a small percentage of these cases involve exposure through consensual sex. Most involve activities such as biting, scratching and spitting, or violent sex crimes such as rape or forcible sodomy.
The first problem is that it has taken the Crown Prosecution Service so long to do anything about this ongoing problem. The guidelines were written to show what makes a prosecution for transmitting HIV more or less likely. It's worth noting that this guidance applies to England and Wales only, although the Offences Against the Person Act still applies in Northern Ireland and different laws apply in Scotland. Someone with HIV is only likely to be prosecuted if:
their sexual partner doesn't know they have HIV
they don't tell them
they don't use a condom for all and any penetrative sex
their partner becomes infected as a direct result
that partner decides to make a complaint to the police.
In order for any successful prosecutions to take place there are certain criteria that must be met:
HIV transmission must have taken place.
The defendant must have 'known' they were HIV positive.
The defendant must have understood that he or she is infectious and known how HIV is transmitted.
The complainant must not have consented to the risk of transmission.
The defendant must not have taken reasonable steps to protect the complainant from infection during sex.
There has to be scientific evidence to support the claim that the defendant infected the complainant.
These 'guidelines' at least set a bench mark for the Crown Prosecution Service to build upon however they are by no means enough. At present there is no offence of attempted reckless transmission in England & Wales. In Scotland, however, it is possible that there could be a prosecution for 'reckless endangerment' in the absence of actual transmission.
In R v Dica [2005] the defendant infected two women with HIV during unprotected, consensual, sex and was convicted of "biological" grievous bodily harm under s.20 of the Offences Against the Person Act 1861. The issue of consent lead to a successful appeal and a retrial was ordered and he was again convicted by jury. This rejected the ruling set forth in R v Clarence (1888) 22 QBD 23 which stated that because the women consented it was not grievous bodily harm.
However it is also important to note that Clarence was still being applied when rape was finally acknowledged as a crime within a marriage. Again this points to an outdated system lacking a sense of direction. It is also theoretically possible that a court could decide that someone knowingly was HIV positive without having tested for example if a person had HIV related symptoms, and had been advised to test for HIV but refused to do so. Intentional transmission is classified as a much more serious offence however it is extremely difficult to prove and as such there have been no cases for intentional transmission to date.
With reckless transmission, someone can consent to the risk of infection with HIV. Agreement to have sex with a risk of transmission in theory means that prosecution should not take place however a person cannot consent to intentional transmission and so consent would not be accepted as a defence yet it is also possible for the Crown Prosecution Service to bring a charge of attempted intentional transmission, even if infection does not take place.
In R. v Konzani [2004], the central issue for the court in this case was whether the trial judge had misdirected the jury as to the meaning of consent, and its availability as a defence, where the defendant had been convicted under section 20 of the Offences Against the Person Act 1861 it was held that a person accused of recklessly transmitting HIV could only raise the defence of consent where that consent was a "willing" or "conscious" consent. In other words, the court distinguished between willingly running the risk of transmission and willingly consenting to the risk of transmission.
In Regina v. Brown [1993] each of the ten defendants participated in sado-masochistic homosexual activity in which they had all consented to the activity and did not suffer permanent injury. The defendants faced charges of assault occasioning actual bodily harm and unlawful wounding. Is consent a defence to an assault causing grievous bodily harm?
The judge ruled that consent was not a defence to causing grievous bodily harm. It was ruled consent is immaterial when the unlawful act involves a degree of violence such that the infliction of bodily harm is a probable consequence and that a person may be convicted of unlawful wounding and assault occasioning actual bodily harm for committing sado-masochistic acts which inflicted injuries neither transient nor trifling. It does not matter that these acts were committed in private and the person had given consent, and it does not matter if the person who consented only sustained minor injuries and no permanent suffering.
The judge ruled that "society must be protected against a cult of violence which presents the danger of the proselytisation and corruption of young men and the potential for the infliction of serious personal injury". To describe such activities as a cult would seem a little trivial - as sado-machism like any other sexual fetishes are a preference and a human choice. It is not something that people are inducted into or forced into doing.
The court ruled that there was no evidence to support the assertion that sado-masochist activities are essential to the happiness of the defendants or any other participants or a violation of their civil rights. But in truth the same could be argued for any type of activity - surely it would not be unfair to say that sex itself then is not essential to the happiness of its participants.
Sadomasochism is "not only concerned with sex; it is concerned with violence". It has been described as "unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consent was dubious or worthless". However what people do in private should not constitute what is legal and not.
The defendants were middle aged men and the victims were introduced to this activity by the defendants before they were 21 and evidence showed that alcohol and drugs were used to obtain consent and increase enthusiasm - but with poppers being such a regular occurrence in today's gay nightclubs and shops and not being classified as illegal it appears that the courts were stumbling over their own feet in making these rulings. In the similar ways it could be argued that the same sentence could be imposed on someone who has a anal sex with a male or female as a 'one night stand'.
There have been numerous rulings on the transmission of diseases and the 'violence' associated with them but in reality there needs to be a direct and a set in stone rulings and laws. It would be impractical to say that the consensual taking of risks should be illegal - it would not be physically possible for this to be enforced. People are generally consenting adults who prefer to have their sexual relations kept as private matters - people should not be held liable for taking known risks with their own health. This is my eyes would constitute a gross interference on a person's human rights.
It would also not be reasonable to expect people to disclose such personal information from the beginning of a relationship - whether it be long term or for one night only. Barebacking is a preference and to counsel the use of condoms would only fuel peoples want to do the extreme. It is human nature. It would also discourage people from taking medical tests and advice which could help them in the future.
In conclusion barebacking is not something that has just taken off - it is more like something that has been thrust into the spotlight. Section 20 is not a provision that was designed to deal with the transmission of disease, let alone the complexities associated with the transmission of disease in the context of intimate sexual relations. The fact that consent has been identified as the main requirement yet it is not even mentioned in the act demonstrates this.
I personally don't see the 'violence' side as it is more a personal choice. However I do feel the law is outdated and sparse on the subject of sexually transmitted infections and sado-machism. The Crown Prosecution Service and the government need to address an outdated Act to bring it into line with a modern world. In R v Dica the Court of Appeal has, for the first time since provided an indication of the circumstances in which those who do in fact transmit serious disease to their partners during sex will be criminalised and in a clear nod to prevailing political sensibilities the Court of Appeal has used Dica as an opportunity finally to consign the ruling in Clarence to the grave.
"We have learned to cherish different cultures as unique expressions of human inventiveness rather as the inferior or disgusting habits of savages. We need a similarly anthropological understanding of different sexual cultures." (Rubin 1993).
It is time that clear boundaries and guidelines are given to allow the health and safety of others. As for the supposed violence of barebacking as I have stated previously it is an entirely personal preference and to try and enforce some sort of ruling or making it taboo would simply be ineffective and quite simply pointless. Time moves quickly and it is imperative that the law grows and changes with the times - sadly at present this is not true in this case and although steps are being made in the right direction the focal point will remain the same until something concrete is done.
