Between 2001 and 2008 about 15 people in the UK were put on trial for infecting their partners with HIV. Not all of these cases resulted in convictions. The Crown Prosecution Service (CPS) published guidelines for prosecuting people for recklessly or intentionally transmitting HIV and other sexually transmitted infections in March 2008. Here we explain what the guidance means with specific regard to HIV.

The law that the CPS uses to prosecute people for recklessly or intentionally passing HIV on to another person is the Offences Against the Person Act 1861. The main key points from the CPS guidance are outlined below. 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 information here is intended as guidance only. If you are being investigated or charged with reckless or intentional transmission of HIV then you should seek proper legal advice straight away. Contact THT Direct on 0808 802 1221 to be put in contact with expert advice as soon as possible.

Click on the "Read More" buttons to get more information about reckless and intentional transmission of HIV.

Reckless transmission of HIV
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For a successful prosecution to be brought against someone for recklessly transmitting HIV to another:

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 in England & Wales.

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 believes 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 breaks 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 strain of 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.

If you know you are HIV positive you should not be vulnerable to prosecution if you either:

  • tell him you're HIV positive before sex, so that he understands the risk and consents to the risk of transmission, or
  • use condoms when you fuck, or are being fucked, properly and at all times
  • If the condom does slip off or break when you are fucking (or indeed if you didn't use condoms at all), then you'll need to tell your sexual partner that you have HIV straight away so 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, should prevent him from becoming infected with HIV.

There's more information about PEP on our Sexual Health site including a list of all the clinics in London that offer it. Alternatively you can call THT Direct on 0845 122 1200 to find the nearest one to you. 

Intentional transmission of HIV
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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 successful to date.

With reckless transmission, someone can consent to the risk of infection with HIV, and this can be used as a defence (if you disclose your status and your partner agrees to sex with a risk of transmission you cannot be prosecuted if transmission takes 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.