A 47 year-old gay man yesterday became the seventh person in England and Wales to be successfully prosecuted for recklessly inflicting grievous bodily harm under the Offences Against the Person Act 1861, Section 20 by transmitting HIV to his 37 year-old partner. The man pleaded guilty after being faced with "scientific proof" from the prosecution, and has not yet been sentenced. As with previous HIV transmission prosecutions, the mainstream media has again misreported the law, referring to "deliberate infection".
The man, who cannot be named, is the first to be successfully prosecuted for reckless transmission of HIV to another man. Last year, a young Welsh woman became the first female to be convicted of reckless transmission.
The man pleaded guilty yesterday at Isleworth crown court, West London, and will be sentenced at a later date. He faces a maximum prison sentence of five years.
According to press reports in the Mirror, and two gay news websites,Pink News and Rainbow Network, the couple had been together for two years. It appears the 47 year-old discovered that he was HIV-positive during the relationship and did not disclose his status to his partner, who found out seven months later from a mutual friend.
According to the Mirror, the man changed his plea to guilty "at the last minute due to overwhelming scientific proof".
Dr Matthew Weait, Lecturer in Law at Keele University, who has lectured and written extensively on the criminalisation of HIV transmission, told aidsmap.com: "This case highlights the critical importance of scientific evidence in cases concerning the reckless transmission of HIV. It is vital that defendants, their lawyers and the court are made aware of the fact that such evidence may indicate who infected whom and when, but it may not."
"What matters," continued Dr Weait, "is whether a jury is satisfied, beyond reasonable doubt, that all the evidence offered in a particular case provides convincing proof of the facts necessary for a conviction. Where a person pleads guilty on the basis of virological evidence (which may be open to a variety of different interpretations) a jury is not given the opportunity to make such an evaluation."
This is the fifth time that someone has pleaded guilty to charges of reckless transmission in England and Wales, with only two cases - those of Mohammed Dica and Feston Konzani - actually going to trial. The judgments in these cases have established the principles that apply in England and Wales to those charged in cases involving reckless HIV transmission.
Put simply, the judgments confirm that if someone knows they are HIV-positive, is aware of the risk of transmission, and takes an unjustifiable risk that results in the transmission of HIV, they could potentially be accused of recklessly inflicting grievous bodily harm.
Although a valid defence is to claim that the person who became infected with HIV consented to the risk of transmission, the kind of consent needed to avoid prosecution is “informed consent”. In most cases informed consent will be established if there has been disclosure by the HIV-positive person of their HIV status, but it is unclear whether disclosure is absolutely necessary to avoid prosecution.
It is also unclear whether transmission of HIV under any circumstances is considered reckless - such as when a condom fails, or through oral sex - or whether it only applies to when condoms are not used in vaginal or anal intercourse.
In addition, the cases do not make clear the relationship between nondisclosure and recklessness.
The Crown Prosecution Service (CPS), which is responsible for bringing these cases to court, has been consulting with HIV policy campaigners about creating a nationwide policy regarding whether, when and how these cases should be prosecuted in the future. At the moment, there is no such policy and each local CPS office acts without central guidance.
A public consultation process is expected within the next few weeks, and further details will be reported on aidsmap.com.
James Chalmers, Lecturer in Law at the University of Aberdeen, who has also written extensively on the criminalisation of HIV transmission, told aidsmap.com that this case highlights the need for the CPS to clarify their policy of prosecution. "It is possible that another CPS office might have viewed this case differently," he said. "This illustrates the need for the CPS consultation to move forward as soon as possible."
Further information
Several experts in this area have written policy papers and articles that discuss the implications of the criminalisation of HIV transmission in England and Wales.
Grievous Harm?, by Sigma Research in collaboration with CHAPS, is available for download in pdf format, from the Sigma Research website.
An article in the Canadian HIV/AIDS Legal Network's Policy and Law Review by Matthew Weait and Yusef Azad can be read online here.
The National AIDS Trust has written a policy update on the criminalisation of HIV transmission that can be downloaded from its website, although this is off-line until Friday 7th April.
James Chalmers has written a chapter on HIV and the law in NAM's book Living with HIV. HIV transmission and the criminal law can be read online here