Any comments on the following?
1. I believe that it was the universal practice inBritish and Imperial forces during WW1 for soldiers to forfeit their pay while they were being treated in hospital for venereal disease. The thinking behind forfeiture was, as I understand it, that by becoming infected with venereal disease a soldier had, by his own conduct, made himself unfit for military duty and that if a person makes himself unfit for duty he should not be paid for performing it.This seems logical.
2. But, of course, forfeiture of pay is a punishment and for there to be a punishment there had to be an offence (a criminal offence), and for a soldier to be found guilty of a criminal offence acourt or other proper authority had to establish two things:
a. that the defendant committed the criminal act ('actus reus' - 'did the deed');
b. that, in the absence of strict liability, the defendant intended to commit the act ('mens rea' – 'had a guiltymind');
and to do this a soldier had to be charged with the offence and found guilty of that offence by due process of law.
3. So there are three issues:
a. What was the nature of the offence?
b. How did they establish 'intent'?
c. How were soldiers, apparently, punished without due process of law; that is, a court-martial or other form of disciplinary proceedings?
4. With regard to the nature of the offence, s.18 Army Act made it an offence for a soldier (which word excludes officers unders.190(6)) to make himself ill as follows:
a. s.18(1) covers malingering or feigning or producing disease or infirmity. Note 3 makes it clear that this must be done 'in order to escape duty', in otherwords with the intention of escaping duty, which means that an intention to escape duty had to be proved, which means that an intention to produce disease in order to escape duty had to be proved (where that was the charge).
b. s.18(2) covers maiming or injuring with intent to render oneself or another unfit for duty. Note 2 states that intent will have to be proved 'but it would besufficient to raise a presumption of intent if the act were shown to have been done wilfully and not accidentally'.
c. s.18(3) covers misconduct or disobedience which produces or aggravates illness or infirmity or delays its cure. Note 5 states that the misconduct must be with intent and that the involuntary production,aggravation or prolongation of venereal disease by immoral conduct (so it wasOK to deliberately catch VD off your wife I guess) 'does not render a soldier liable under this paragraph'.
5. Thus it was necessary to prove actual intent except in relation to maiming or injuring under s.18(2) where a presumption ofintent could be made if the act was done wilfully and not accidentally; that is, it had to be both wilful and not accidental. However, as far as I can see, catching VD did not amount to either maiming or injuring (it was an illness/disease) and, even if it did, I cannot see that a court would be entitled to infer that a person wilfully and not accidentally caught VD simply because he wilfully and not accidentally visited a prostitute. I submit that the one cannot reasonably be inferred from the other.
6. With regard to actual intent, as opposed to presumed intent, how can anyone prove, to the required legal standard of beyond reasonable doubt, that a soldier intended to catch VD? Short of a confession byone of the 'parties involved' or the evidence of a witness ('And then, Your Honour, she said: "Ere,darlin'! Fancy a dose?"') I do not see how it is possible. Was the argument effectively that visiting a prostitute was a voluntary act and that if asoldier caught VD as a result of a voluntary act he was deemed (presumed) to have voluntarily caught VD, which takes us back to presumed guilt? But, as stated, voluntarily visiting a prostitute does not necessarily imply an intention to catch VD. In fact it seems to me that the one (the act of visiting a prostitute) falls very far short of implying the other (an intention to catchVD). More to the point, I know of no valid way by which a court or military authority could infer the one from the other, because to do so would be to turn the whole process of law on its head. The court would, in effect, be saying 'We no longer have to prove that you intended to commit the offence of making yourself ill (by catching VD), we merely have to prove that you did something that is not a crime, that is visit a prostitute or have sex with a woman who is not a prostitute, which might have led to you catching VD, even if you had no way of knowing that it would do soor even if, in fact, the prostitute or woman told you she did not have VD.'
7. Of course, if voluntarily visiting a prostitute did necessarily imply an intention to catch VD then the British military authorities necessarily authorized and solicited crime (the catching of VD) by sanctioning the use of brothels in France ('the Blue Lamp reserved for officers, the Red Lamp for men').
8. With regard to the word 'involuntary' in s.18(3) one could perhaps argue that someone who visited a prostitute volunteered to catch VD, because being aware of a risk of infection, if not the fact of infection, they went ahead anyway, but does this argument hold water? If a man crosses a road he runs the risk of being run over and is aware of that risk. But if he is run over does that mean that he volunteered to be run over? Of course not. At some point, perhaps, a risk might be so great (so near to acertainty) that one could argue that the person did volunteer but, in my view, the level of risk would have to be considerable. A man might voluntarily take arisk of catching a disease but that is not the same as voluntarily catching adisease.
9. So, for soldiers, but not officers, there was an offence under the Army Act but it seems to me that it would have been virtually impossible to either raise a presumption of intent or prove an actual intention to commit that offence or prove that a person effectively volunteered to infect himself. And even if the offence was provable in theory, in practice forfeiture of pay was, I believe, to all intents and purposes, automatic on proof of infection; that is, there was no due process of law to establish that the soldier was guilty of an offence under s.18 Army Act. Perhaps some order was issued to cover this but could the military authorities simply overrule the Army Act and The Manual of Military Law, as laid down by Parliament, in such a manner? I doubt it, and, in fact, ss.69 and 70 Army Act prohibited punishment not provided by the Act.
10. Since there was no specific offence for officers equivalent to s.18 Army Act the only charges that might have been brought in relation to catching VD were, as far as I can see, conduct prejudicial (s. 40 Army Act) or disgraceful conduct (s.16 Army Act). But again,it would still have been necessary to prove the offence, including intent, by due process of law; that is, by a court-martial.
11. s.138(2) Army Act allowed deductions from a soldier's pay (but not an officer's) in respect of time spent in hospital as a result of a sickness certified by the proper medical officer attending on him to have been caused by an offence under the Army Act committed by the soldier. Note 9 states that 'this deduction is only authorised where the sickness is caused by an offence of which the soldier has been found guilty and therefore does not extend to sickness caused by immorality or intemperance whenthere is no conviction (either by a court-martial or under the award of a commanding officer) for an offence by which the sickness was caused.' In other words, no deduction could be made without due process of law, which, of course, required proof of intent as described above.
12. s.137 Army Act allowed deductions from an officer's pay as a result of being absent without leave or any expense, loss or damage caused by an offence or wrongful retention of a soldier's pay or any loss or damage caused by any wrongful act or negligence. So, if an officer was found guilty of conduct prejudicial or disgraceful conduct in that he intentionally caught VD, could it be argued that the officer caused a loss to the public purse to the extent that he had deprived the army of his services bycatching VD? Well, I think that the answer is 'No'. The reason for this is that there was a specific provision covering illness in s.138 in relation to soldiers, as stated above, which means that the other provisions in that section, which reflect those in s.137 listed above relating to officers, were clearly not intended to cover illness. If we put the question another way we can ask'Why would the provision concerning illness have been put in if illness wasalready covered by the any loss or damage provision?' Had Parliament wished tomake specific provision covering illness in s.137 to parallel s.138 it would have done so. So, the absence of a specific provision in s.137 parallel to that in s.138 proves that Parliament did not intend to allow deductions from an officer's pay in respect of illness. s.136 did allow deductions where providedby a Royal Warrant but ss.69 and 70 prohibited punishment not provided by the Act, which presumably included penal deductions from ordinary pay. In other words, as far as I can see, short of specific provision in an Act of Parliament amending the Army Act, possibly theArmy (Annual) Act, the Army Act did not allow deductions from an officer's pay in respect of illness amounting to an offence. Of course, even if such deductions were allowed it was still necessary to prove the offence.
13. So it would seem that the military authorities were not entitled to deprive soldiers of their pay without due process of law,which would mean that pay was improperly with held in respect of all of the 400,000 cases of VD in the British Army during WW1.