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. Because of this, the Crown Prosecution Service (CPS) published a policy statement on prosecuting people for recklessly or intentionally transmitting HIV and other sexually transmitted infections in March 2008,1 with accompanying legal guidance which was updated in June 2010.2 The guidelines were written to show what makes a prosecution for transmitting HIV more or less likely. It's worth noting that this guidance applies to England and Wales only, although the Offences Against the Person Act still applies in Northern Ireland. Different laws apply in Scotland.
The CPS guidance is still quite vague so the information here is intended as guidance only. If you want further information you can contact THT Direct on 0808 802 1221 to be put in contact with expert advice.
Reckless transmission of HIV
For a successful prosecution to be brought against someone for recklessly transmitting HIV to another person:
HIV transmission must have taken place. The complainant (the person bringing the case) would have to have been actually infected with HIV. There is no offence of attempted reckless transmission (where no infection takes place) in England and Wales. In Scotland, however, this is not the case. In February 2010, an HIV-positive man was convicted of 'culpable and reckless conduct' for having unprotected sex with four women, although three of the women were not infected.
The defendant (the person accused of transmitting HIV) must have 'known' they were HIV-positive. In most cases this will mean he or she must have had a positive HIV test result. However it is theoretically possible that a court could decide that someone 'knew' they were HIV-positive without having tested (e.g. if a person had HIV-related symptoms, and had been advised to test for HIV but refused). A case was brought against a heterosexual man because his former partner had been diagnosed positive and told him that she thought he had infected her. Even though he had not tested himself, the judge ruled that this man should have been aware of his status.
The defendant must have understood that he or she is infectious and known how HIV is transmitted. This means that a court would have to prove that the defendant understood that their actions could lead to HIV being transmitted.
The complainant must not have consented to the risk of transmission. If the defendant disclosed their status before sex, or if the complainant already knew that the defendant was HIV-positive, it is unlikely that a prosecution would be successful. This is because the complainant, by having knowledge of the defendant's positive HIV status, would have consented to the risk of transmission. Here, however, there could be a scenario where it's one person's word against the other, especially if the defendant's disclosure of status took place in private. If someone else heard the disclosure, or if there is email evidence of disclosure, this could be used by the defence. For a successful defence based on disclosure of status, it's also important that the complainant understood that there was a risk of transmission. However, it is also a valid defence if the defendant honestly believed that the complainant consented to the risk of transmission.
The defendant must not have taken reasonable steps to protect the complainant from infection during sex. In the context of HIV transmission this mainly refers to consistent condom use. The CPS guidance states that if the defendant used condoms consistently, even though HIV was transmitted "it will be highly unlikely that the prosecution will be able to demonstrate that the defendant was reckless". However, if the condom broke during sex and the defendant was aware of this and continued having sex without changing the condom or immediately disclosing their status, then this could be regarded as reckless behaviour.
There has to be scientific evidence to support the claim that the defendant infected the complainant. Scientific evidence alone cannot prove that one person infected another; it can only show that the complainant's HIV is closely related to that of the defendant. Scientific evidence can, however, prove that the defendant did not infect the complainant. No prosecution can take place unless the scientific evidence indicates that it is possible that the defendant infected the complainant. However no prosecution can be successful on scientific evidence alone, as this is not enough to establish who infected who. There needs to be other supporting evidence.
In short, all of this means that if a man with HIV says that he is HIV-positive before sex, so that the risks are understood and both partners consent to the sex, or if condoms are used correctly when you fuck, or are being fucked, there should be no grounds for criminal prosecution.
If you have HIV and choose not to disclose your status, you need to consider the risk of the condom slipping off or breaking when you are fucking (or indeed the risks if you don't use condoms at all). If your partner could have been exposed to HIV, telling him straight away means that he can access post-exposure prophylaxis, also known as PEP. This is a 28-day course of anti-HIV drugs which, if accessed within 72 hours of exposure, may help to prevent him from becoming infected with HIV.
You can get PEP at most sexual health clinics, or you can call THT Direct on 0808 802 1221 to find the nearest PEP service to you.
Intentional transmission of HIV
Intentional transmission is where someone deliberately sets out to infect someone else. This is a much more serious offence than reckless transmission; however, it would be much more difficult to prove that someone was deliberately transmitting the virus sexually. No cases of intentional transmission of HIV have been successfully prosecuted to date.
With reckless transmission, someone can consent to the risk of infection with HIV. Agreement to have sex with a risk of transmission means that prosecution should not take place. However you cannot consent to intentional transmission and so consent would not be a defence. It is also possible for the CPS to bring a charge of attempted intentional transmission, even if infection does not take place.
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.3 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. Research has shown that 52% of HIV-negative men would not want to have sex with someone who told them that they were HIV-positive.4 Partly as a result of attitudes such as this, it is little surprise that only about 21% of positive men always disclose their HIV status before sex with a casual partner, and 32% never do.5
Despite the protection of the criminal law, most people still choose to lock their car or their home 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.
A summary of the UK prosecutions to date, along with the National AIDS Trust's position on criminalisation can be found at: www.nat.org.uk/criminalprosecutions/.
NAM also has information on HIV and the law on their website at www.aidsmap.com/law. This includes a detailed analysis of the prosecutions for transmission of HIV that have occurred in the UK and other countries.
1 Crown Prosecution Service (CPS). Policy for prosecuting cases involving the intentional or reckless sexual transmission of infection. Crown Prosecution Service (England and Wales), 14 March 2008.
2 Crown Prosecution Service (CPS). Legal guidance: intentional or reckless sexual transmission of infection. Crown Prosecution Service (England and Wales), 21 June 2010.
3 Global Network of People Living with HIV (GNP+). The global criminalisation scan report: documenting trends, presenting evidence. Global Network of People Living with HIV, July 2010.
4 Hickson F, Bourne A, Weatherburn P, Reid D, Jessup K, Hammond G. Tactical dangers: findings from the United Kingdom Gay Men's Sex Survey 2008. Sigma Research, 2010.
5 Hickson F, Weatherburn P, Reid D, Jessup K, Hammond G. Testing targets: findings from the United Kingdom Gay Men's Sex Survey 2007. Sigma Research, 2009.