Many people living with HIV in England have a limited understanding of the law which leaves them either at risk of prosecution for HIV transmission or with an overestimation of their legal obligations, according to a small qualitative study published online ahead of print in the Journal of Family Planning and Reproductive Health Care.
A number of people in England and Wales have been convicted for non-intentional transmission of HIV during consensual sexual intercourse (‘reckless’ transmission). To simplify, this can occur when an individual who knows they have HIV has sex with someone who is unaware of their partner’s HIV-positive status and, having taken no measure to reduce the risk of HIV transmission, HIV is passed on.
In England and Wales (but not in Scotland, where the law is more far-reaching) a conviction is only possible after HIV has been passed on. Prevention of HIV transmission is therefore an effective way to prevent prosecution. Furthermore, an individual who has made efforts to avoid transmission, either by using condoms or (following specific medical advice) by maintaining an undetectable viral load, may be less likely to be judged by a court to have behaved ‘recklessly’ even if transmission does occur.
Similarly, prior disclosure of HIV status could have legal benefits in the event of HIV transmission. If it can be shown that a sexual partner had sex with someone they knew to be HIV positive, a court is likely to see them as having agreed to the risk of acquiring HIV.
Health professionals are recommended to address the legal implications of HIV transmission with their patients. The British HIV Association (BHIVA) and the British Association for Sexual Health and HIV (BASHH) have published a position statement with some guidance on how to do so.
Do people living with HIV understand the law?
In this study, 33 people waiting for their clinical appointments at a large clinic in Manchester completed written questionnaires. Using open questions, respondents were invited to describe their understanding of various issues in their own words. The key themes in these responses were analysed qualitatively.
While the majority of respondents were gay men of white British ethnicity, ten respondents were heterosexual, five were women and seven were African.
Respondents were asked: “Do you understand the legal issues surrounding HIV transmission in England and Wales? Particularly consider any circumstances where it is against the law to pass on HIV, and the way that the law deals with people who pass on HIV”.
A few respondents were able to describe the law with reasonable accuracy.
However most respondents had a poor understanding. While some frankly stated that they had “no idea” of what the law was, others appeared to have confidence in their knowledge but in fact had an incomplete understanding. This could put some individuals at risk of prosecution.
On the other hand, several respondents overestimated the burden of the law on people with HIV. For example one man said: “I understand it is unlawful to pass on HIV” when in fact it is only unlawful in certain circumstances. Similarly another thought that “it is illegal to have unsafe sex when you know you are HIV+” although this would depend on whether HIV transmission and disclosure had occurred or not. Some respondents thought that the criminal offence could be manslaughter or attempted murder, rather than grievous bodily harm.
The researchers note that when individuals overestimate how the law restricts their own behaviour or the nature of punishment, this could contribute to feelings of stigmatisation and marginalisation.
Explanations of the law often entailed descriptions of specific sexual practices (especially sex without a condom), disclosure of HIV status and the nature of the relationship between sexual partners.
Some suggested that there might a duty to disclose to certain people who are not sexual partners, while other respondents felt that disclosure might depend on the type of relationship.
“Not clear about disclosure and the law and if there (in particular) [is] a difference between casual encounters and regular partner sexual activity.”
“It is essential to disclose your status before entering a relationship.”
Rather than considering the absolute risk of transmission, some respondents appeared to assess the need for disclosure based on the longevity or importance of the relationship, with obligations to a regular partner being stronger than those to a casual partner.
Respondents frequently described their own ethical position rather than a clear description of the law.
“I feel it is immoral to knowingly pass on HIV.”
“Not a good idea to pass on your own HIV to innocent people. Pass it on to others is ungodliness.”
A number of respondents mentioned rights and responsibilities. However the rights and responsibilities described were always those of the respondent, of the person living with HIV. There was little mention of (HIV negative) sexual partners having some responsibility for avoiding HIV infection.
What should clinicians do?
As noted above, BHIVA and BASHH have published a position statement with guidance on how clinicians should describe the law to patients and how clinicians should understand their ethical responsibilities.
But while the study was conducted in a clinic where this issue is discussed with all newly diagnosed people and with all patients new to the clinic, many respondents had no recollection of such a discussion taking place. This was of concern to the researchers. “It is possible that the data are being given at a point where there is an information overload, and that understanding of the law should be treated more as a process than an event,” they comment.
Moreover they note that the way in which respondents understood the law and the transmission of HIV was as much influenced by their own sociocultural perspective – such as their religious beliefs or view of appropriate behaviour with a sexual partner – as by the facts of the law and the prospect of prosecution.
“This has major bearings on the approach of clinicians when discussing the law with patients, and perhaps explains why many participants did not feel they had had the law discussed with them, despite the fact it is recorded in notes in line with clinic policy,” the authors comment. “Due to time pressures and a wish not to distress individuals in clinic, the facts relating to prosecution may be presented to PLWHA without reference to their sexual behaviour and their own perception of blame and responsibility. Rather than stating facts and hoping that a person will digest the information, there is a need to take these wider issues into account.”
Ongoing discussion of the law needs to be enable people living with HIV to understand the law in terms of their own sociocultural perspective, they suggest.
For more information on HIV and the criminal law
NAM's information resources for people living with HIV include a simple illustrated factsheet Transmission and the law and more detailed information in the resource Living with HIV.
Phillips M & Schembri G. Narratives of HIV: measuring understanding of HIV and the law in HIV-positive patients. Journal of Family Planning and Reproductive Health Care, published online ahead of print, 2015.