Proving the complainant’s consent or lack of consent to a possible exposure to HIV

Although this varies by jurisdiction, in the context of alleged HIV exposure or transmission, explicit disclosure of one’s HIV-positive status to a sexual partner prior to sex can be required before sex that potentially or actually risks HIV exposure. In some jurisdictions, disclosure of known HIV-positive status can be an affirmative defence to criminal charges. In this case, disclosure of known HIV-positive status would mean that the individual with HIV has warned their partner of the specific risk of being exposed to HIV.

There are many reasons why people with HIV cannot or do not explicitly disclose their HIV-positive status before each and every sexual act. Read more about the challenges associated with disclosing one’s HIV-positive status in the chapter: Responsibility.

Disclosure should mean (although in practice proving disclosure is often problematic) that a sexual partner could not later claim that he or she was unwillingly subjected to HIV-related risk.

Almost all cases of criminal HIV exposure or transmission via sexual intercourse are brought to trial because complainants claim that they were not explicitly and specifically informed of the HIV-related risk during otherwise consensual sexual activity. Regardless of whether there are HIV-specific laws requiring disclosure, or general or HIV-specific laws allowing disclosure of HIV status prior to sex as a defence, the issue of disclosure often figures prominently in how cases are resolved.

Evidence regarding disclosure, or lack thereof, can usually only come from the testimony of complainant(s) and the defendant. However, prosecution guidelines from England and Wales allow other evidence and means of disclosure. They state: “Disclosure is one way of informing the complainant, but the [Crown Prosecution Service] will allow for other possible ways in which the complainant might have been ‘informed’ of the defendant’s HIV status – whether from a third party, or a hospital visit, or from obvious symptoms of infection.”¹

Such evidence may be valuable because it is not uncommon for a complainant and defendant to disagree about whether disclosure took place. This does not necessarily indicate that one of them is intentionally lying. UNAIDS notes that “the activities that transmit, or risk transmitting, HIV will generally occur in private without third-party witnesses. Furthermore, the communication regarding sexual encounters is often complex, with both verbal and non-verbal elements, with many assumptions made and many things left unsaid. So it will be difficult in many cases to conclusively prove what was or was not said by the participants regarding:

• their own HIV status;

• the extent of their knowledge about their own HIV status and that of their partner;

• their level of knowledge about how HIV is, and is not, transmitted; and

• the levels of risk to which each participant will consent.”²

Given the difficulty of conflicting testimony, how the burden of proof is placed can be significant for the defendant.  In some jurisdictions, experts convened by WHO have noted that “the onus is on the prosecution to prove the absence of consent on the part of the complainant; the burden of proving consent does not lie on the defendant. There needs to be a clear understanding of this important point on the part of police, prosecutors, the defence bar, and courts (both judges and juries).”³  However, despite this position of WHO, some jurisdictions have enacted statutes that specifically place on the defendant the burden of proving consent.¹

It may strengthen a case if the prosecution can find more than one complainant to show that the defendant has a pattern of non-disclosure. However, some people with HIV – notably in Canada and the United States – have been convicted as the result of a single brief sexual encounter.²

Since it may be difficult for people with HIV to later prove in court that they disclosed their HIV-positive status, a group of Canadian NGOs has issued a guide that contains the following recommendations for gay men with HIV:

• disclosing one’s HIV status to a potential sex partner in front of friends who could act as witnesses.

• asking a third party to confirm that the potential sex partner is aware of the HIV-positive diagnosis.

• saving online conversations and emails that confirm disclosure as well as the potential sexual partner’s confirmation that the information was received.

• disclosing one’s HIV-positive status at a counselling session that the potential sexual partner has been asked to attend as well, with the counsellor noting the disclosure in the client record.

• asking one’s potential sex partner to co-sign a document (which the authors note is “the most unrealistic strategy”).⁴

Other options might also include recording the disclosure conversation with a mobile phone; testimony/affidavits from other partners confirming they were told before sex (providing evidence of a pattern of consistent disclosure), and writing a detailed note of what was said and done just after it happened (evidence that may be legally equivalent to the contemporary notes made by police in their notebooks).

1. For example, in the United States, Idaho Code § 39-608 ("providing that it is an affirmative defense that the sexual activity took place between consenting adults after full disclosure"); 720 Illinois Comp. Stat. § 5/12-16.2 ("consent is part of affirmative defense").

2. For examples, see: Criminal HIV Transmission blog at www.criminalhivtransmission.blogspot.com.