Conclusion

Unprotected sex with an HIV-positive individual does not inevitably lead to HIV transmission. HIV exposure is also extremely unlikely when there is not enough infectious virus in sexual fluids due to successful antiretroviral treatment. Neither are spitting, biting and throwing body fluids significant risks of HIV exposure.

The gulf between the criminal justice system's understanding of HIV-related risk and risk based on the latest scientific evidence can be illustrated by two recent cases in the United States. In one, during sentencing for a single one-off unprotected oral-sex encounter between two men where the complainant was not infected, a United States judge stated that the risk was "just like if you would have shot a gun".¹ In another case the prosecutor likened unprotected sex to "playing with a loaded gun, playing Russian roulette".² The comparisons between unprotected sex and Russian roulette are inaccurate at best and inflammatory at worst.

This misunderstanding of risk may be understandable given the language of well-meaning public figures who unhelpfully compare the risk of unprotected sex to Russian roulette. For example, pop icon and HIV-awareness spokesperson for the MAC Foundation, Lady Gaga, recently gave an interview where she said: "We all know that having sex with a condom is a negotiation but it is Russian roulette."³

However, in Russian roulette there is a one-in-six chance that a bullet will enter your head. Here the risk of harm and the risk of death are closely allied. However, the estimated average risk of HIV transmission during even the riskiest sexual act – receptive, unprotected anal intercourse to ejaculation where the insertive partner is neither wearing a condom nor receiving antiretroviral treatment – is 1-in-70. In addition, should transmission occur, the most recent studies from high-income settings suggest that, due to improved treatments, someone infected with HIV today would have a similar life expectancy to their HIV-negative counterpart.⁴

The risk of a single encounter of unprotected sex with an HIV-positive individual on successful antiretroviral therapy is, in fact, even lower than the lifetime risk of being killed by lightning. According to the United States National Safety Council, the lifetime risk of dying after being struck by lightning is 1 in 81,701.⁵ According to the Swiss Federal AIDS Commission, the per-act risk of HIV transmission for someone under regular medical care, on antiretroviral with an undetectable viral load for longer than six months and with no other sexually transmitted infections is around 1 in 100,000.⁶

This chapter has shown that criminalising HIV exposure or transmission on the basis of the risk conferred by the act or acts in question raises many issues about how courts and lawmakers frame the nature of such risks. Scientific perspectives on HIV-risk levels are based on a wealth of evidence collected from many years of both laboratory and field research. Perceptions about whether or not a person is likely to expose someone to, or transmit, HIV need to be carefully reconsidered in light of this evidence.