HIV transmission and the criminal law

Since 2001, thirteen people have been successfully prosecuted in the United Kingdom (eleven in England & Wales, and two in Scotland which has a different legal system) for giving their sexual partners HIV. In addition, four people have been acquitted. The laws used to prosecute criminal HIV transmission developed from existing assault laws - ‘recklessly inflicting grievous bodily harm’ in England and Wales and ‘reckless injury’ in Scotland.

To secure a guilty verdict for either ‘recklessly inflicting grievous bodily harm’ or ‘reckless injury’ the prosecution has to prove that:

• the person with HIV did, in fact, infect their partner
• the person with HIV was aware of their HIV status and the risk of transmission
• the person who became infected did not explicitly consent to sex with an individual they knew had HIV.

Providing advice to individuals about the specific circumstances and the kind of behaviours that might come to the attention of the police and be prosecuted is difficult. This is because the law has developed from individual cases.

However, in March 2008, the Crown Prosecution Service, which is responsible for prosecuting criminal cases investigated by the police in England and Wales, published a policy statement and guidance for prosecutors that helps to clarify who is most likely to be prosecuted, and under what circumstances. There is no equivalent guidance in Scotland.

Below are some of the most frequently asked questions and concerns about prosecutions for HIV transmission. However, this information does not replace appropriate legal advice for anyone who is being investigated or charged in such cases, or who is thinking of making a complaint. Anyone personally concerned about the possibility of prosecution should contact THT Direct on 0845 1221 200 to be put in contact with expert advice as soon as possible.

Unprotected sex that does not result in HIV transmission is not against the law in England and Wales. There is no crime of ‘attempted reckless' transmission. Although it is theoretically possible to be prosecuted for ‘reckless endangerment’ in the absence of actual transmission in Scotland, there have been no prosecutions so far.

However, it is possible to be charged with ‘attempted intentional’ transmission, and there is no defence of consent available in charges of intent. To date, nobody has been successfully prosecuted for either ‘intentional’ or ‘attempted intentional’ transmission because proving that one person intended to give another person HIV sexually is extremely difficult.

Since HIV transmission is silent and unseen, neither you nor your partner can know whether HIV has been transmitted during sex. So, there is a possibility that if your HIV-negative or untested partner tests HIV-positive, suspects that they were infected by you, and they complain to the police because you had not told them you were HIV-positive, you might be subject to a police investigation. If you are concerned about this, the best advice is to use condoms consistently for vaginal and anal sex, and/or to make sure your partner explicitly agrees to have sex with you, knowing you are HIV-positive.

You might think that someone having unprotected sex must realise the risk they’re taking, so whatever happens is their responsibility. But the law says the person who does not have HIV cannot consent to unprotected sex unless this decision is informed. Proving that there was consent to the risk of HIV transmission is difficult, and may often be one person’s word against another.

A very important part of the Crown Prosecution Service (CPS) guidance concerns difficulties proving that one person infected another. It will be harder to prove this if the person making the complaint has had more than one sexual partner (or any other HIV infection risk) since their last negative HIV test. By taking blood samples from both people involved, if the virus strains are not very similar, it is possible to say with some certainty that one person did not infect the other.

If the samples are very similar, however, this is considered to be just one - albeit important - piece of evidence supporting the claim that one person infected the other, but it cannot be used as proof on its own. Other evidence will include the medical and sexual history (for example, from medical records or diaries) of both the person making the complaint and the person who is accused, to try and understand the timing of both people’s HIV diagnoses, and whether the person making the complaint could have been infected in another way.

Even if it can be shown that one person has infected another, the prosecution still needs to prove that person has been ‘reckless’. In legal terms, ‘reckless’ means the person with HIV did not intend for their sexual partner to get HIV, but did not try to stop it happening, because they did not use a condom for vaginal or anal sex and did not have express permission from their partner to have unprotected sex.

Specifically, the prosecution has to prove that the accused had knowledge of their HIV-positive status; understood they were infectious and how HIV is transmitted sexually; and did not use condoms consistently and/or did not make their HIV status known to the person making the complaint so that they could explicitly consent to the risk of HIV transmission.

The prosecution will have to prove that the accused knew that they were HIV-positive when sex that resulted in transmission took place. Most people will only ‘know’ they are infected once they have been diagnosed (and this will be proved by using medical records, including anonymous records at a GUM/sexual health clinic).

In exceptional circumstances - such as where someone has refused to test despite specific advice to do so by a doctor, or does not get a confirmatory blood test following a rapid test - this might be seen as being ‘wilfully blind’ to having knowledge of their HIV-positive status. Usually, however, if someone has not been diagnosed, they will not be prosecuted.

The prosecution will have to prove that the accused was told they were infectious by their doctor or other healthcare professional and really understood the nature of their infectiousness and relevant risk behaviours. However, the CPS guidance acknowledges that people are often shocked when first diagnosed and do not necessarily take in what they are told.

In addition, it is not clear how - or whether - information from other sources, such as that provided by Swiss experts in January 2008 regarding the relationship between HIV treatment and infectiousness, will be taken into consideration. However, the prosecution may also use experts who have differing opinions about the relationship between treatment and infectiousness, since this is a constantly developing and controversial area.

Consistent condom use is a defence against a charge of reckless HIV transmission. However, the consistent use of condoms is extremely difficult to prove and, as in rape cases, it may often be just one person’s word against another.

There is no clear guidance about legal liability for transmission following condom breakage, but both Terrence Higgins Trust and the National AIDS Trust argue that if a condom is found to have broken during sex and HIV transmission occurs as a result, it should be an adequate defence for the accused to have promptly advised their partner to obtain post-exposure prophylaxis (PEP).

This information was correct as of November 2008. For the latest advice and further detailed information, call THT Direct on 0845 1221 200 or visit the Terrence Higgins Trust or National AIDS Trust websites.