Introduction

Up until relatively recently, it was thought that the transmission of HIV (at least through consensual sexual intercourse, or the sharing of drug-injecting equipment) could not amount to a criminal offence in the UK. In England and Wales, this was because the relevant offence - “unlawfully and maliciously inflicting grievous bodily harm” – had been interpreted by the courts in the nineteenth century as being restricted to cases where one person had attacked another, for example by striking a blow or using a knife. However, that interpretation of the offence changed over time, and it was gradually recognised that the offence could apply to any case of “causing” harm.

The first successful prosecution for HIV transmission in England and Wales was brought against Mohammed Dica, who was convicted of two counts of unlawfully and maliciously inflicting grievous bodily harm in October 2003. Although his conviction was later quashed by the Court of Appeal (because the judge had misdirected the jury on the question of consent), the court accepted that the transmission of HIV could, in certain circumstances, amount to a criminal offence, and Dica was convicted of a single count at a retrial. A similar conclusion had already been reached in Scotland in 2001 (where a different system of criminal law applies), when Stephen Kelly was convicted of having ‘recklessly injured’ his former partner by infecting her with HIV.

It should be stressed at the outset that prosecutions for the transmission of HIV are likely to be unusual. There have been two in Scotland since Stephen Kelly’s conviction in 2001 (neither of which went to trial), while there have been five convictions in England following the Dica case. The Crown Prosecution Service was, at the time of writing, about to start a consultation exercise on the circumstances in which prosecutions might be appropriate.

The offence is not, it should be noted, limited to HIV, but might extend to any other sexually transmitted infection which could be considered to amount to “grievous bodily harm”.

The “state of mind” required for the offence

There is no question of any person being liable of a criminal offence simply because they have transmitted HIV to another person. To be guilty of any serious criminal offence, a person must have acted with a culpable state of mind - which lawyers refer to as mens rea. The mens rea required for the offence of inflicting grievous bodily harm is intention or recklessness. In other words, for a conviction, it would be necessary to show that the defendant intended to infect the other party with HIV, or that they were reckless as to this possibility - that is, that the defendant was aware of the risk of infection. This would also be necessary in Scotland for the offence of “reckless injury” of which Stephen Kelly was convicted.

It is theoretically possible, therefore, that a person could be guilty of this offence even if they had not received a positive result from an HIV test. It would, however, be necessary to show that they were aware of a significant risk that they might be HIV-positive - for example, if they had previously been regularly engaged in unprotected intercourse with a person or persons whom they knew to be HIV-positive. While a prosecution in such a case would be unlikely, it should be made clear that avoiding taking an HIV test does not provide immunity from criminal prosecution. One of the English prosecutions to date involved a man who had never taken an HIV test, but had been diagnosed with other sexually transmitted infections, warned that he was at very high risk of being HIV-positive and had failed thereafter to attend an appointment for testing.

What is the effect of consent?

In quashing Mohammed Dica’s convictions after his first trial, the Court of Appeal ruled that, where a person chooses to consent to the risk of HIV transmission (that is, they know that their sexual partner is HIV-positive and choose to have unprotected intercourse regardless of this fact), then that will be a valid defence to a criminal prosecution. This would not, however, apply in the unlikely event that the consenting party had actually wanted to become infected with HIV (and the other party had intended this to happen). It is thought that the Scottish courts would take the same view.

What if condoms are used, or high-risk activities avoided?

What is the situation if a person who is HIV-positive does not disclose this fact to their sexual partner, but uses condoms, and HIV is nevertheless transmitted? In the Dica case, the Court of Appeal suggested that the use of condoms might mean that the HIV-positive person could not be said to have acted “recklessly”, and so therefore would not have the state of mind required for the offence. Similarly, if the parties refrain from high-risk sexual activities, again, “recklessness” would not be present. A problem does arise, however, in relation to unprotected oral sex, which is not normally considered high-risk but does present a more than negligible risk. It is thought that it would not be caught by the criminal law, but the exact position is unclear.

What if transmission does not occur?

In England and Wales, if an HIV-positive person has unprotected sexual intercourse without disclosing their serostatus, but the other party does not become infected, then a prosecution would be very unlikely. It is possible that there could be a prosecution for an attempt to inflict grievous bodily harm in such a case, but the prosecutor would have to show that the defendant actually intended to transmit the disease. It would not be enough to show that the positive person was simply reckless as to the possibility of the disease being transmitted. In Scotland, however, it is at least theoretically possible that there could be a prosecution for “reckless endangerment” in the absence of actual transmission.

A duty to disclose?

Because consent is a valid defence, it seems fair to say that the Dica case effectively places a legal duty on HIV-positive persons to disclose their HIV-status before engaging in high-risk sexual activities.