HIV update - 21st January 2015

Many HIV-positive people’s understanding of the law on HIV transmission is "weak and patchy"

Many people living with HIV in England have a limited understanding of the law on HIV transmission, according to new research. This leaves some people at risk of prosecution while others imagine their legal obligations to be greater than they actually are.

A number of people in England and Wales have been convicted for non-intentional transmission of HIV during consensual sexual intercourse ('reckless' transmission). To simplify, this can occur when an individual who knows they have HIV has sex with someone who is unaware of their partner’s HIV-positive status and, having taken no measure to reduce the risk of HIV transmission, HIV is passed on.

In England and Wales (but not in Scotland, where the law is more far-reaching) a conviction is only possible after HIV has been passed on. Prevention of HIV transmission is therefore an effective way to prevent prosecution. Furthermore, an individual who has made efforts to avoid transmission, either by using condoms or (following specific medical advice) by maintaining an undetectable viral load, may be less likely to be judged by a court to have behaved 'recklessly' even if transmission does occur.

Similarly, prior disclosure of HIV status could have legal benefits in the event of HIV transmission. If it can be shown that a sexual partner had sex with someone they knew to be HIV positive, a court is likely to see them as having agreed to the risk of acquiring HIV.

For the new research, 33 people waiting for their appointments at a large clinic in Manchester were asked to describe their understanding of the law on HIV transmission.

Some were able to explain it with reasonable accuracy.

But most respondents had a poor or incomplete understanding. Some overestimated the burden of the law on people with HIV. For example one man said: “I understand it is unlawful to pass on HIV” when in fact it is only unlawful in certain circumstances.

Similarly another thought that “it is illegal to have unsafe sex when you know you are HIV+” although this would depend on whether HIV transmission and disclosure had occurred or not.

These misunderstandings could contribute to feelings of stigmatisation.

Some respondents thought that they might have a duty to disclose their HIV status to long-term partners, but not necessarily to casual partners. In fact, the law is the same for all sexual partners.

Respondents frequently described their own ethical position rather than a clear description of the law. For example one man said: “Not a good idea to pass on your own HIV to innocent people. Pass it on to others is ungodliness.”

The researchers noted that while many people with HIV mentioned rights and responsibilities, the rights and responsibilities described were always their own. There was little mention of HIV-negative sexual partners having some responsibility for avoiding HIV infection. In this way, people with HIV see the burden of managing transmission risk as something they have to entirely take on themselves.

NAM has a wide range of information on HIV and the criminal law here. This includes a simple illustrated factsheet Transmission and the law and more detailed information in the resource Living with HIV

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