In many forms of bondage and sadism, pain is inflicted by the Master or Domatrix on the sub. Sometimes, it is extreme pain, taking the sub to the limits of his or her pain threshold. Yet these forms of sexual behaviour are generally not criminalised because both parties consent to pain being inflicted.
Fisting is another sexual behaviour that carries inherent risk of infection or bowel perforation, yet to my knowledge there has been no successful prosecution by the person being fisted against the “fister” for perforating their bowel or introducing infection into their intestines. Why? Perhaps because no one has yet bought such a case to trial but also there is consent between the parties.
We may not understand bondage or sadism as a sexual practice and the thought of fisting or being fisted may leave us perplexed, however such practices have not been criminalised. Given the element of harm and risk in these practices it is interesting to reflect on why some elements of sexuality are criminalised and others are not. Why is it that some elements of sexuality lie within the realm of personal idiosyncrasies while others are seen as lying within the realm of public morality and hence more open to being criminalised? What is the influence of fear, prejudice and stigma in the wider population that results in certain areas of sexual activity being criminalised?
Under the Criminal Code Act Compilation Act 1913 (WA) grievous bodily harm is defined as any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health
The actual crime of grievous bodily harm is outline in s.297 of the Criminal Code as “any person who unlawfully does grievous bodily harm to another is guilty of a crime….”
In other words, any person who unlawfully causes a bodily injury of such a nature as to endanger or be likely to endanger life or cause permanent injury to health is guilty of grievous bodily harm. As outlined above there are sexual practices that may be likely to endanger life or cause permanent injury to health which are not criminalised.
This raises the question as to whether HIV is likely to endanger life or cause permanent injury to health. Medical and scientific evidence is very clear that HIV in 2018 does not endanger life. Anti-retroviral therapies (ART) enables people who contract HIV to live productive, long and healthy lives. A similar example would be diabetes. Does diabetes endanger health? Uncontrolled it does lead to health complications, controlled by exercise, diet and/or medications people who have diabetes live productive lives.
I mentioned above about consent which brings us to the consideration of criminal responsibility. Section 23 B of the Criminal Code (2) states a person is not criminally responsible for an event which occurs by accident. In the examples given above, if a Dominatrix accidentally harms her client, she is not necessarily guilty of grievous bodily harm.
To translate this to the example of HIV, if two consenting adults engage in sex and one of the people is HIV positive and their viral load is still detectable, and they infect the other person have they committed grievous bodily harm? The medical evidence would clearly indicate the person’s life is not endangered, that instead they have a chronic medical condition that can be managed but will not endanger or permanently risk their life. Hence the medical evidence runs contra to the legal definition.
There is also the fact that both parties consented to the sexual activity. Consent implies responsibility. We must take responsibility for what we consent to. In taking that responsibility, we must weigh up the risks of what we are and are not prepared to accept.
There are still misconceptions and fear around HIV. It is often conflated with AIDS related illnesses. The fear of the epidemic of the 80’s still lies within the subconscious of many people and influences their prejudices and assumptions.
We need to exercise care to ensure there is dialogue between scientific evidence and legal definitions, so the administration of justice is both fair, equitable and scientifically sound particularly in this area of sexuality and public morality. Without such a dialogue occurring, the administration of justice can easily be influenced by unconscious prejudices, fear and unscientific assumptions that may result in criminalisation of what are in effect public health matters.
 The Criminal Code (WA) s.1 pg.29