During 2005, X was charged with having knowingly transmitted, communicated or passed on a disease or condition mentioned in Sub-article 3 of Legal Notice 137 of 2005 to three women not otherwise suffering from it or afflicted by it. The disease in question was the HIV virus. X allegedly knew of such a disease, or should have known that he suffered from such a disease. He was further charged with having defiled one of the women who was still a minor at the time.

One of the women (A) gave evidence stating that X was the first sexual partner with whom she engaged in intercourse on a number of occasions (she was 17 years old at the time). She subsequently suffered from a series of infections and after tests were carried out, it resulted that she was HIV Positive.

She stated that X had never mentioned that he was HIV Positive and she was not sure whether he had used contraception.

She stated further that, at her own invitation, the accused had sexual intercourse with her and another woman (B) at a hotel. Now pregnant, A stated that the relationship with X had ended and the father of her baby was a Syrian national with whom she has an ongoing relationship.

The accused tried to shift the blame onto another foreigner with whom A had had sexual encounters and also onto the father of the baby.

B told the Court that she had had a relationship with X that had lasted two years and a few months. B stated that X had informed her of his HIV infection but she claimed she was unable to remember the exact time he had informed her. It resulted that the accused had told B of his infection at a late stage (when she was positively diagnosed) and when he did so, he told her that since their relationship would be continuing, it did not really matter that they were both HIV Positive.

C, a third female, confirmed that she had had sexual intercourse with the accused and later tests proved her to be HIV Positive. She claimed that the accused had, on occasions, refused to use contraception.

The Court was convinced beyond reasonable doubt through the evidence brought before it, particularly by doctors as well as the witnesses, that X was the person who had knowingly infected the three women. The reasons the Court gave were the following:

• he was the common

contact person

• at least two of the three women manifested immediate health deterioration after sexual encounters with the accused.

The accused reiterated that he had told the women of his HIV infection, but it was possible that they had not quite understood him.

An interesting aspect that was raised by the Defence was the fact that the Legal Notice listing the diseases under the heading of “Communicable Diseases and Regulations, 2005” including HIV, upon which Article 244A(1)and (2) depend could not be applied retroactively since Criminal Law cannot as a general principle be applied retroactively.

Hence, with regard to two of the women, since both incidents occurred before May 2005, the applicability of Article 244A (1) and (2) immediately excluded any offence. However, as regards the third woman, it transpired that the accused continued a relationship beyond such date. The Attorney General had also deduced Article 18 relating to continuous offences against the accused.

The Court was sure that X had knowingly and voluntarily transmitted his disease to the three females, but due to the date of the coming into force of the Legal Notice, he could only be imputed with regard to the condition of one of the females.

Article 244(1) of the Criminal Code (Chapter 9 – Laws of Malta) states that

244A. (1) Any person who, knowing that he suffers from, or is afflicted by, any disease or condition as may be specified in accordance with sub-article (3), in any manner knowingly transmits, communicates or passes on such disease or condition to any other person not otherwise suffering from it or afflicted by it, shall, on conviction, be liable to imprisonment for a term from four year to nine years:

Provided that where the other person dies as a result of such disease or condition, the offender shall be liable to the punishment established in article 211(1) (ie the punishment for wilful homicide: Life Imprison-ment).

The Court felt that, despite the fact that X did not have the dolo diretto, he definitely had what a well-renowned jurist, Antolisei, called the dolo eventuale regarding the consequences of his actions.

The Court further commented that, with proper care and attention, the spreading of the virus can be avoided.

X was also charged with Article 203 which states:

203. (1) Whosoever, by lewd acts, defiles a minor of either sex, shall, on conviction, be liable to imprisonment for a term not exceeding three years, with or without solitary confinement…

The defendant later admitted that he knew one of the women was 17 years old at the time. In fact, the Defence relied on the legal maxim of “corrupta non corrumpitur”. (This maxim holds that once one is corrupted, further corruption is impossible – a lost good cannot be further lost. Before, our Courts felt that a corrupted person had a right not to be further corrupted and should not be stopped from changing his/her habits. However, opinion changed later, holding that although the doctrine may be applicable, each case must be examined individually and on its own merits.)

Hence, the defence held that since A had sexual intimacy with another male when she was 15 years old, and had invited the accused to a hotel and finally ended up pregnant by a Syrian male with whom she claims to have an on-going relationship, her further corruption could not be contemplated.

A, however, reiterated that she was first exposed to sex by the accused. Although the young woman encouraged the relationship, the court stated that it is this young age that the Law seeks to protect.

Hence, although her participation was voluntary, this did not render her already corrupted and hence did not justify the accused in encouraging such activity.

The fact remains that A was underage and exposed to sexual intercourse in January 2005. The fact that she became pregnant by another man a few months later was evidence of her lack of maturity and education and not, as the defence claimed, her sexually corrupted nature.

The accused was found guilty of such defilement and the spreading of

disease.

Taking into consideration the gravity of the transmission of the disease in question, ie HIV, the Court sentenced the accused to five years’ imprisonment (deducting the period spent in preventive arrest).