Introduction to the legislation

The criminal law was first used in 2003 in England to find an individual culpable for HIV transmission under the Offences Against the Person Act 1861 (OAPA 1861).

Two sections of the OAPA 1861 relating to ‘grievous bodily harm’ can be used prosecute HIV transmission: Section 18, 'intentional transmission' and Section 20, 'reckless transmission'.

Section 18 – Wounding with intent to do grievous bodily harm ('intentional transmission') reads: “Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person...with intent...to do some...grievous bodily harm to any person, shall be guilty of an offence, and being convicted thereof shall be liable...to imprisonment for life.”

Section 20 – Inflicting bodily injury, with or without weapon ('reckless transmission') reads: “Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour, and being convicted thereof shall be liable...to imprisonment...for not more than five years."ⁱ

Whilst it also possible to be charged with 'attempted intentional transmission', there is no such charge as 'attempted reckless transmission’. So far, all prosecutions that have reached the courts were for 'reckless transmission'. Although some individuals were initially charged under Section 18 (‘intentional’), to date there have been no successful prosecutions for either ‘intentional transmission’ or ‘attempted intentional transmission'. This is primarily because proving that someone intended to sexually transmit HIV is extremely difficult (see FAQs below).

Although, to date, only 13 'reckless transmission' prosecutions have reached the English courts (plus one prosecution in Wales and none so far in Northern Ireland), many more individuals – possibly hundreds – have been arrested and investigated.¹ These investigations had a serious impact upon the lives of the accused and complainants. Some investigations that did not reach the courts lasted up to a year, and some cases were only dropped by the Crown Prosecution Service (CPS) once it became clear that they did not have enough evidence to show that the complainant(s) could have only been infected by the defendant (see FAQs below).

Of the 14 England and Wales cases that reached the courts:

• all but two of the people charged were male

• all but three were charged in relation to heterosexual transmission

• eight were British-born nationals

• nine individuals pleaded guilty

• of the five 'not guilty' pleas, the two earliest pleas resulted in convictions

• the longest prison sentence was for ten years (primarily because there were three complainants)

• sentences for 'reckless transmission' to one complainant have ranged from between two and four-and-a-half years.²

Non-disclosure of HIV-positive status prior to consensual sex is not considered rape or sexual assault in England, Wales and Northern Ireland. However, the transmission of HIV following non-consensual sex can be taken into account as an additional aggravating factor for sentencing purposes.

i. Seven years in Northern Ireland.

HIV is also subject to the Public Health (Control of Disease) Act 1984, which was recently amended by the Health and Social Care Act 2008. These have been implemented in both Health Protection (Local Authority Powers) Regulations 2010 and the Health Protection (Part 2A Orders) Regulations 2010, which only apply to England.

Under these recently enacted English public-health laws, a justice of the peace can, under "exceptional circumstances"³ make a Part 2A Order requiring someone with HIV who is thought to be placing others at risk to:

• provide information or answer questions about their health or sexual partners

• undergo medical examination (although they cannot be forced to take antiretroviral treatment)

• have their health monitored and the results reported

• attend training or advice sessions on how to reduce the risk of infecting others

• be subject to restrictions on where they go or who they have contact with

• be taken and detained in hospital

• be kept in isolation or quarantine.

The (English) Department of Health has recently provided guidance regarding how these powers should be used in people living with HIV. The guidance makes it clear that Part 2A orders are a last resort and "not a tool for managing long-term problems".⁴ It clarifies that they are not meant to change the current culture of confidentiality within sexual-health services and should not be a routine part of managing people living with HIV who present with evidence of ongoing unsafe sex. If a Part 2A order is being considered, advice should be sought from the treating clinician and clinic director as to the possible consequences of such an order, with confidentiality respected at all times.

Since these powers are new, there is no information regarding if, and under what circumstances, they have been applied. However, any application for, or use of, these powers must be reported to the Health Protection Agency, which will be providing an annual report of all cases to the Department of Health in future.