In cases of assault by – for example – stabbing with a syringe, or biting, the transmission (or risk of transmission) of HIV or another blood-borne virus is likely to be considered an aggravating factor in determining the sentence to be passed. This will be so even where transmission is threatened by an assailant but does not occur because of the certain distress caused to the victim having to wait for an antibody test. For example, in R v Schwartzkopf [2003] EWCA Crim 2997, where the accused had headbutted a custody officer and said “Have some hep C you bastards” before biting the officer on his leg, the Court of Appeal commented:

We, of course, must also look at the aggravating factors of this particular offence. The appellant threatened to inflict a life threatening disease upon his victim. He inflicted a 6 month period of waiting upon his victim, during which the victim did not know whether or not he may have contracted hepatitis C. That must have been a dreadful period of anxiety, not only for the victim but for his family and friends. The victim was a public servant, in a particularly vulnerable position, vulnerable to just this form of attack… Biting is a very nasty, painful and dangerous form of wounding, particularly when perpetrated by an intravenous drugs user.

With respect to sexual offences the Court of Appeal suggested in the case of R v Malcolm (1987) 9 Cr App R (S) 487 that HIV would only be an aggravating factor if the victim of the sexual offence had a valid reason for believing that he or she had contracted it from the offender or where that actually happened. However, the court has more recently regarded it as an aggravating factor without any reference to any such restriction: R v Steward [2005] 1 Cr App R (S) 5

In the context of consensual sexual offences (for example, those involving a person who is under the age of consent), the failure to use a condom or otherwise engage in acknowledged safer sex practices may be regarded as an aggravating factor, even when the virus is not actually transmitted.