A guide explaining prosecutions for HIV transmission in England and Wales has been produced by UK HIV charities, THT and NAT.
Since 2003, a number of people with HIV have been imprisoned for “reckless” HIV transmission and many more cases have been investigated by the police without reaching court.
The new guide (which can be downloaded here) explains that these prosecutions have been brought using the 1861 Offences Against the Persons Act and that the individuals have been convicted of grievous bodily harm.
For a person to be guilty of reckless HIV transmission, it is necessary for five criteria to apply at the time the alleged offence was committed:
- The person must know they have HIV.
- They must understand how HIV is transmitted.
- They did not tell their sexual partner that they had HIV.
- They did not use a condom.
- HIV was transmitted to their sexual partner.
There is information in the guide about the circumstances in which an offence has not been committed. For example, a person cannot be prosecuted for reckless HIV transmission if they had unprotected sex that did not result in HIV be transmitted.
Scientific evidence has been used to “prove” that a person transmitted HIV to another individual. The new guide explains that this involves complex tests known as phylogentic analysis. Although this can show if the virus in two individuals is similar, it cannot prove that a person transmitted HIV to another.
It is vital that individuals accused of reckless HIV transmission obtain expert legal advice as soon as possible. There is information in the guide about how to obtain this.
Finding out that you have HIV can be a shocking experience and difficult to come to terms with. Anger and blame are common experiences. However, feeling about living with HIV an change over time, and the guide notes that tens of thousands of people with HIV are living normal, productive lives. It therefore urges people not to rush into an allegation of reckless transmission. It also notes that the sexual history of a person making a complaint will be thoroughly investigated ,in effect “put on trial” and previous sexual partners will need to be contacted and tested to rule out the possibility that they were the source of the HIV infection.
THT Direct provides a good source of information and support about the criminal law and HIV transmission. They can be contacted 0845 1221200.
You can also read about HIV and the law here.