Prosecutions for the transmission of HIV

HIV was identified more than 20 years ago, and until recently there had been no prosecutions for passing on the virus in the UK.

The first prosecution in the UK was of a Scottish man, Stephen Kelly, a heterosexual who had contracted HIV in prison. He was put on trial and convicted of passing on the virus in 2001. There have since been 5 other cases. Four of those have been male heterosexual migrants, (three African and one Portuguese). The latest conviction was that of a young Welsh woman, aged 20, who was sentenced to two years youth custody after pleading guilty under the Offences Against the Person Act 1861, section 20, for 'recklessly inflicting grievous bodily harm' . She is the first woman in the United Kingdom to be successfully prosecuted for HIV transmission. The case was widely reported in English and Welsh newspapers. The headlines used by the majority of the newspapers misrepresented the legal situation by claiming the young woman "deliberately infected" the young man (The Telegraph, Daily Post, Western Mail, the Sun and The Mirror). Other terms used by the media have been "Aids Assassin" and "Death Sentence". This sort of sensationalised and inflammatory reporting can only be destructive to the Public Health work that is being done.

Only The Times, who may have had a reporter in the courtroom, used the proper and less inflammatory phrase "knowingly infected". The Times reported that in sentencing, Judge Christopher Llewellyn Jones said: "You never told your boyfriend and as a result he is now HIV positive. You even sought to mislead him. His health is now devastated for life. In my judgement what you did to that man is so serious that only a custodial sentence can be justified. It is plain that no sentence I can impose will restore the health of that man, but I must impose a sentence which brings home to people the seriousness of this type of offence."

When is HIV transmission a crime?

The law is far from clear; so far the court cases have been for causing reckless, not intentional harm. Intentional transmission involves a clearly deliberate, premeditated plan or desire to cause harm. It requires a high burden of proof to secure a conviction. However if such a case did come to court it would carry a maximum sentence of life imprisonment. Reckless transmission on the other hand involves carelessness or lack of action to avoid causing harm. It requires a lower burden of proof to achieve a guilty verdict. Reckless transmission currently holds a maximum sentence of five years in prison for each person infected.

Following the recent cases it has been established that sexual transmission of HIV can count as reckless transmission. The prosecutions so far have all been for reckless transmission.

For a prosecution to take place the following needs to have happened:

A person who is HIV positive does not disclose to their sexual partner that they have HIV
Condoms are not consistently used during anal or vaginal sex
As a result, the sexual partner becomes infected with HIV
The sexual partner makes a complaint to the Police

Who is responsible?

Since the beginning of the HIV epidemic, HIV prevention work has centred on promoting awareness about the shared responsibility for preventing the transmission of HIV. Health promoters have consistently promoted the following messages:

HIV negative people should be responsible for protecting their own health.
HIV negative and positive people should share responsibility for preventing transmission of HIV.

No-one ever promoted 'people with HIV are totally responsible for stopping HIV being passed on' yet the Judge in the case of the young Welsh woman who was recently convicted said just that. He said "You never told your boyfriend ...." which seems to be saying that the person who is HIV positive is the person with sole responsibility for making sure the virus is not passed on.

Some campaigners such as, The George House Trust in Manchester continue to lobby, in the interest of public health, for an end to all trials involving HIV transmission. Others such as The Terrence Higgins Trust, The UK Coalition of People living with HIV and AIDS and National AIDS Trust concede that, while 'reckless' transmission should not be a crime, 'intentional' transmission could be.

In reality though, people are being prosecuted for the transmission of HIV. This can mean that people who are HIV positive now have to also live with fear of prosecution, confusion around the lack of clarity in the law, added worries about disclosure and confidentiality, and the pressure of sole responsibility of not passing on the virus.

This also presents a challenge for organisations such as The Eddystone Trust who are working with people who are HIV positive. It is vital for us to try and keep informed and to keep the people who use the service informed.

Information for people who are HIV positive:

Understand the law and its consequences.
A charge is only likely to be brought if you do not disclose your status or do not consistently use a condom for anal or vaginal sex.
Understand that medical records are not completely confidential.
Know what to do if an accusation is made.
Be aware that the law may encourage the uninfected to expect disclosure or condom use by people who are HIV positive.
Be aware of the risks and difficulties of disclosing HIV status.
Understand that avoiding testing does not protect from prosecution – but it does endanger health through late diagnosis.
Know where to go for further information and support.
Remember that condoms, used properly for every sexual encounter, offer the best protection against HIV transmission and prosecution.

Information for people who do not have HIV:

Know that about a third of people with HIV do not know they have got it.
Understand the law and its consequences – including how the law may make a disclosure of HIV status less likely.
Understand that just because a law exists, does not mean that everyone will obey the law.
Remember that condoms, used properly, offer the best protection against HIV infection.
Be aware of reasons why disclosure or condom use cannot be expected despite the law. Reasons include, undiagnosed infection, stigma, assumptions of shared HIV status, differing views on where responsibility lays, dishonesty, and a lack of concern from some with HIV.

For further information contact The Eddystone Trust on 01752-257077 Plymouth, or 01803-380692 Torbay.
Useful reading: National AIDS Trust (2005). Criminalisation of HIV transmission: Nat policy update. www.nat.org.uk
THT (2005),Criminal prosecution of HIV: a THT policy statement www.tht.org.uk/prosecutions
Sigma Research briefing paper (2005), Grievous harm? Use of the Offences Against the Person Act 1861 for sexual transmission of HIV www.sigmaresearch.org.uk

Source- THT ISSUE Nov 05 and Aidsmap news Nov 05