Discussion
Facts: Neil was a student in Medicine, who had serious shoe fetish, finding brown men’s shoes extremely exciting. One of his course mates, Thomas, bought designers loafers in Neil’s favorite brown color, and Neil was strongly attracted to them. Neil began to follow Thomas everywhere, wearing his new brown shoes in the university, taking photos of him, and often Neil made Thomas presents as brown shoe polish cream, new laces, or leaving pictures of him in his student pigeon-hole. As a result, Thomas became ill because of stress just before his exams and asked the doctor to sign him off the university. The doctor fulfilled his request stating that he suffered from severe depression.
In order to relieve his disappointment from the fact that he could not follow Thomas’s brown shoes, Neil decided to visit his local sado-masochist mistress Kate and asked to make a walk up and down his naked back, wearing her patent stiletto red boots. Kate fulfilled his will and while walking she whipped his back with a whip. That whipping left big wells on Neil’s back and while walking with her stiletto boots, she caused him a number of deep puncture marks.
As a continuation of the walk, Neil had a consensual sexual intercourse with her without any protection nevertheless he thought that he might have been contracted HIV from an earlier mistress. On her side, Kate thought that Neil was the client who showed her his HIV clean certificate earlier that week, but she was mistaken. Because of her mistake, she did not insist that he used a condom. She was diagnosed as having contracted HIV, three months later.
Issues: Have Neil and Kate criminal liability under the Offences Against the Person Act of 1861 and the Common Law?
Application: The basic requirement for the criminal liability to be present is the availability of guilt (culpa). The law had defined different types of guilt according to the behavior of the offender regarding committed offence.
Considering the facts, exhibited above, there are three criminal acts committed: Thomas’s severe depression caused by Neil’s behavior, the deep punctures on Neil’s back caused by Kate’s walk with her stiletto boots and Kate’s contraction of HIV caused by Neil’s irresponsible behavior and her mistake. All these offences raise criminal liability under the Article 42 of the Offences Against the Person Act of 1861 but in order to determine which type of liability the offenders would bear the regulations of the Tort law have to be applied. The guilt could be intentional and unintentional (nuisance). Intentional guilt is available when the actor knew the disadvantageous consequences of his/her act and he/she intended the reach them. Unintentional guilt (nuisance) is available when the disadvantageous consequences were not intended by the actor but he/she had to forеsee and prevent them from happening. Usually this represents an action which is harmful or very annoying to the others. That exactly is the case of Neil and his actions towards Thomas due to his brown shoes. Neil did not intend Thomas illness but he had to foresee and stop behaving that way. Such negligent behavior was demonstrated in the land mark case of Jones v. Powell (1629) where the defendant letting the vapors of his manufacture go through the neighbor’s property damaged his documents. The same kind of negligence demonstrated Kate walking with her stiletto boots on Neil’s back causing him injuries.
In the third case where Kate contracted HIV, ignoring her mistake, Neil committed another type of unintentional guilt, i. e. recklessness. Recklessness is when the actor intends to commit the act knowing it could create a risk for the others more than usual negligence but the actor desperately hopes it not to happen. Neil suspected he had HIV but he recklessly hoped that nothing would happen or worse he was not interested in the consequences.
Conclusion: Considering the written above it may be concluded that Nail and Kate are liable with negligence according the definitions of Tort Law and besides negligence Neil is liable with recklessness in his last action with Kate. Kate’s mistake has to be ignored since it caused no harm to anybody else but her.
References
Jones v. Powell, (1629) 123 Eng. Rep. 1155, Web Retrieved on Aug. 23, 2016 from www.caselaw.findlaw.com/mi-supreme-court/1053884.html
Offences Against the Person Act of 1861, (1861) (24 and 25 Vict. C. 100), Web Retrieved on
Aug, 23, 2016 from http://www.cirp.org/library/legal/UKlaw/oap1861/
