Criminalisation of HIV transmission

The criminal law was first used in the context of HIV transmission in England in 2003 when an individual was found culpable for HIV transmission under the Offences Against the Person Act 1861. Two sections of the act relating to ‘grievous bodily harm’ can be used to prosecute HIV transmission:- Section 18, 'intentional transmission' and Section 20, 'reckless transmission'. However there has never been a successful prosecution for intentional transmission. Moreover, in England and Wales it is not possible to be charged for ‘exposure’ where there has been no transmission.

However the law in Scotland is different. A common law offence of ‘culpable and reckless conduct’, which may also be called ‘causing real injury’, is used. Importantly, exposure to a sexually transmitted infection without transmission actually taking place may be a crime in Scotland.

In England and Wales, someone may be guilty of reckless HIV transmission if all five points below applied to them at the time of the alleged offence:

• They knew they had HIV.
• They understood how HIV is transmitted.
• They had sex with someone who did not know they had HIV.
• They had sex without a condom.
• They transmitted HIV to that person.¹

There is no evidence to suggest that criminalisation will impede the spread of HIV. On the contrary, advocates believe that it contributes to the stigmatisation of people with HIV, undermines the notion that HIV prevention is a responsibility that is shared between HIV-negative and HIV-positive people, and discourages people from testing for HIV.

Internationally, such laws are often applied selectively, targeting particularly marginalized groups.² In the UK, many of the first cases were prosecutions of black African men. However, since then, a wider variety of individuals with HIV have been prosecuted.