HIV transmission and the law
A number of people in the UK have been prosecuted and jailed for transmitting HIV to their sexual partners. All of the prosecutions in England and Wales to date have been brought under Section 20 of the Offences Against the Person Act. This Act came into law in 1861 and so was not designed to deal with cases of HIV transmission.
When would a prosecution happen?
Prosecutions for the transmission of HIV are likely to remain rare. So long as the law remains undefined it is hard to be sure exactly what actions may or may not result in prosecution. From the cases that have been brought so far there are some indications of what makes a prosecution more or less likely (although this may change as more cases are brought):
It has been ruled that consent (to the risk of transmission) is a valid defence. For this reason it seems unlikely that a prosecution would be brought in any case where the HIV positive person disclosed their status before sex, although it may be difficult to prove whether disclosure took place unless there were other witnesses.
Similarly, if the positive partner used a condom or did not engage in any high-risk activity, it would be harder for the prosecution to argue that they had been 'reckless' towards their partner's health and so a criminal case would probably be unlikely.
In England and Wales, if an HIV positive person fucks without a condom without disclosing their HIV status, but their partner does not become infected, then a prosecution would be very unlikely. In Scotland, however, it is at least theoretically possible that there could be a prosecution for 'reckless endangerment' in the absence of actual transmission.
One of the successful prosecutions involved a man who had not tested positive but who had reason to believe that he may be HIV positive. Avoiding taking an HIV test does not provide immunity from criminal prosecution.
None of the cases in the UK to date have demonstrated an intention to infect. The prosecutions have all been brought on the basis that the positive partner was ‘reckless’ with regard to transmission i.e. that he or she did not take enough to care to prevent transmission from taking place. Currently, disclosure of HIV status prior to sex (if you can prove it) and / or use of a condom would probably be enough to ensure that a prosecution would not be brought.
The impact of criminalisation
Comparative studies of countries that do or do not criminalise transmission of HIV have not demonstrated that criminalisation is effective in reducing levels of HIV transmission. At this point it is impossible to know what the long-term effects of criminalisation in the UK will be. However, so long as there remains a considerable level of stigma attached to being HIV positive, it is unlikely that every positive man will disclose his HIV status before sex. The Gay Men's Sex Survey in 2002 found that 43% of HIV negative men would not want to have sex with someone who told them that they were HIV positive. Partly as a result of attitudes such as this, it is little surprise that research conducted by GMFA suggests that only about 20% of positive men always disclose their HIV status before sex, and 40% never do.
Despite the protection of the criminal law, most people still choose to lock their car or their homes to prevent burglary. Similarly, we would suggest that the best way that HIV negative men can avoid becoming infected with HIV is to take responsibility for their own health and safety when having sex.
Links
A summary of the UK prosecutions to date, along with the National AIDS Trust’s position on criminalisation can be found on NAT’s website: www.nat.org.uk
For a detailed analysis of the prosecutions for transmission of HIV that have occurred in England and Wales go to: www.aidslaw.ca
NAM also has information on HIV and the law on their website: www.aidsmap.com
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