In the autumn of 2003 many people with HIV and their representative organisations were shocked to learn that a man had been convicted by an English court and sent to prison after infecting his sexual partners with HIV. Several other prosecutions quickly followed, all resulting in conviction, with all but one of the cases involving men, three of whom were African.
The prosecutions have been brought using Section 20 of the 1861 Offences Against the Person Act, with the individuals convicted of grievous bodily harm after ‘recklessly’ transmitting HIV during unprotected sex.
Until the first conviction it had been thought that it was highly unlikely for a prosecution for the reckless transmission of HIV to be brought under English law. Dr Catherine Dodds a research fellow at Sigma research who has raised concerns about the impact of the criminalisation of HIV transmission on the communities most affected by HIV in the United Kingdom explained why. “The reasons date back to the 1890s and the so-called ‘Clarence’ case. Clarence was convicted in the lower courts under the Offences Against the Persons Act of grievous bodily harm after infecting his wife with gonorrhoea. The Court of Appeal overturned this verdict. It had that, because they were married, Mrs Clarence could not withold her consent to sexual intercourse. This meant that because she "consented" there was no assault, even if the transmission of disease could be treated as assault (which, at the time, it could not).
Dr Dodds added that the Law Commission, which makes recommendations for new laws in England and is independent from the government, recommended in 1993 that both the deliberate and reckless transmission of disease should be a criminal offence. The Home Office rejected this in a 1998 White Paper which stated that only the intentional transmission of serious disease (including HIV) should be a criminal offence, a position supported by HIV organisations such as the Terrence Higgins Trust and the National AIDS Trust. The Government's proposal were, however, never implemented.
Five years later, everyone was caught napping. Although some academic lawyers had pointed out that the Clarence case should be seen in the context of late 19th century society, the legal focus of HIV organisations had shifted away from the criminal law towards asylum and immigration. But there were warnings that things might be changing. The conviction of a man for infecting his partner with HIV in Scotland passed with little more than a ripple of concern in England as advocacy organisations and HIV-positive individuals assured themselves that it was a one-off case, brought under a legal system fundamentally different from that of England.
Indeed, so off the ball were HIV organisations, that the first time many knew that a man was in court charged with grievous bodily harm after infecting some of his sexual partners with HIV was when they read about it in the newspapers. This case involved Mohammed Dica, who in November 2003 was sentenced to eight years in prison after being convicted of infecting two women with HIV. “It set off the alarm bells. For the first few weeks following the conviction, nobody knew how to respond”, explained Dr Dodds. (Mr Dica eventually won the right to a retrial on appeal, but was later convicted of recklessly transmitting HIV to one woman and sentenced to four and a half years in prison.)
Over the next few months a pattern emerged as other successful prosecutions were brought. “They were in three different locations, and all three involved African men”, said Dr Dodds, who along with academic and HIV sector colleagues immediately started to question, “why are these prosecutions being brought now, and why do they involve African men?”
First of all, somebody needs to make a complaint to the police, which is then investigated. A file will be prepared by the police that is then considered by the independent Crown Prosecutions Service (CPS) which decides if there is a case to answer, if there is a good chance of securing a conviction, and if a prosecution is in the pubic interest.
Dr Dodds feels that there is some merit in the notion that prosecutors took on cases against HIV-positive African asylum seekers or refugees accused of infecting their female sexual partners with HIV as these might be situations where a jury would be persuaded to convict. This would establish case law for later cases to be brought forward (including cases where white, gay, British men make complaints against their sexual partners).
The convictions had an immediate impact. Dr Dodds recalls the panic that she encountered in many HIV-positive people, particularly, but not exclusively in African men, in the immediate aftermath of the few cases. “There was a real worry amongst people with HIV that these cases could mean a visit from the police and prison”, said Dr Dodds.
Advice was sought by HIV-positive people about their risk of prosecution. Prosecution guidelines that are currently being drafted by the CPS with the help of HIV and sexual health experts make it likely that even if HIV transmission did occur, if the person uses a condom each time he had penetrative sex with a person for the entire duration of sex, then a prosecution would not be brought. However, such guidelines will only be voluntary prosecution policy, and it will be difficult to provide definitive evidence about condom use in the face of conflicting police statements. The existing judgments also make it likely that in the event of unprotected sex and HIV transmission occurring, disclosure of HIV status before sex would provide the basis for a successful defence.
There have also been implications of these prosecutions for HIV organisations. Sometimes, these have been quite painful. Dr Dodds is aware that some organisations had internal debates about whether they should support people recently diagnosed with HIV who wanted to bring a prosecution against a person they thought had infected them. Although some organisations concluded that they should, reasoning that they existed for all HIV-positive people, others came out strongly against supporting prosecutions for reckless transmission in any way.
Health promotion campaigns have also shifted in response – there have been a number of recent campaigns targeted at gay men looking at the issue of assumed status and shared responsibility for HIV prevention and a major disclosure campaign is planned for later this year by THT.
In addition, there have been implications for the doctor-patient relationship. The professional body that represents UK HIV doctors, the British HIV Association (BHIVA), is preparing new guidelines for its members about how to respond to the prosecutions.
Another consequence has been that many HIV-positive patients have lost confidence in the confidentiality of their medical records, as these have been used in court. “Adults attending sexual health clinics used to think that their records were absolutely sacrosanct and confidential,” said Dr Dodds. “These prosecutions show that they aren’t.”
This does raise an additional issue: the attitude of HIV and sexual health professionals to the prosecutions. Dr Dodds is aware of a range of responses – some have been extremely alarmed by the prosecutions whereas others have welcomed them. She added, “some of the initial complaints were made after a health provider encouraged recently diagnosed women to get in touch with the police – until that time some of the women had never even thought about a prosecution.”
And this is an interesting point – does it help a person recently diagnosed with HIV to make a complaint to the police to seek a prosecution. “Many of the woman who have brought complaints mentioned that they ‘wanted to stop him doing it to others’, or ‘to get even’, or to ‘show him what he’d done to’”, said Dr Dodds. Anger is an almost universal experience after diagnosis with HIV, but Dr Dodds questions if pursuing a criminal prosecution is a productive focus for it, “on the plus side it might provide closure, but it could be that the time spent meeting lawyers could be better used thinking about what an HIV diagnosis means in 2006 and how treatment and lifestyle could mean a longer and healthier life.”
The reality of HIV in the early 21st century was also something that seemed to have missed the prosecution counsel in the cases brought so far. Barristers frequently spoke of “AIDS sufferers” and claimed that HIV was a “death sentence”. In some of the very early cases, the defence barristers did not possess the immediate knowledge and awareness to know how important it was to challenge this language or claims about the prognosis of people recently infected with HIV.
Because of these concerns, HIV, sexual health and gay rights organisations have met with the CPS to discuss draft guidelines for the bringing of prosecutions for the transmission of HIV and other sexually transmitted infections. Discussions have been described as “rich”, possibly because the initial CPS working paper came from a very low knowledge base – in its initial form the transmission of pubic lice was under consideration as a basis for criminal charges being brought.
Since then there has been progress. The draft guidelines recommend that very strong biological evidence is needed of transmission between two individuals is now needed before a prosecution can be considered. But it’s important to remember that these guidelines will only be voluntary.
But other real concerns still exist, not least of which are concerns that the prosecutions are not in the public interest. “The criminal prosecution of HIV transmission further increases the stigmatisation of an already stigmatised group”, said Dr Dodds. Ironically, this is occurring at a time when the Department of Health has set itself the target of reducing prejudice against HIV-positive people.
The prosecutions have not provided an opportunity for the wider public implications for health promotion to be considered. The judges delivering the Court of Appeal judgment on the Dica case were only concerned as to whether his conviction was right in law – the wider public health implications should be left for Parliament and politicians, they said. There had been hopes that an appeal to the House of Lords would provide an opportunity for these arguments to be aired, but leave to appeal was refused. This is deeply regrettable since the law is left in a state of uncertainty.
So where now? There have been seven successful prosecutions so far (including the recent guilty plea by a gay man), all but one of which involved men, and as many as 15 further cases are in preparation. Is there any chance that further prosecutions can be halted, for example by an act of Parliament? Isn’t there hope here - after all, the Home Office White Paper did recommend in 1998 that primary legislation should be introduced making the intentional, but not the reckless transmission of HIV an offence.
Dr Dodds is pessimistic that this would provide a solution at this late stage. “For a start, the prosecutions are undoubtedly popular, and politicians don’t like doing something that runs counter to public opinion. Then there’s the risk that it might actually make the situation worse – a backbench MP could introduce an amendment which actually codifies reckless transmission of HIV as a specific crime.”
There has been discussions about a possible appeal to the European Court of Human Rights in the Dica case, on the basis that the prosecution breached his right to privacy, but once again Dr Dodds doesn’t think that this would have any real chance of success. Countries like the UK, which are signatories to the European Convention on Human Rights are allowed a wide "margin of appreciation" in matters of criminal justice, and the right to respect for private life may be limited for reasons including the prevention of crime and public health.
However, she thinks that the support that HIV organisations and clinicians provide to recently diagnosed people could be a way of reducing the number of prosecutions. “For there to be a prosecution, there has to be a complaint. Highly quality support and counselling could help people to channel the anger they feel in the post-diagnosis period to rebuilding their lives; dealing with their changed circumstances.”
But in the meantime the prosecutions will continue. The first full court case involving two gay men will be watched with particular interest by Dr Dodds who wants to see “how the police and CPS went about compiling evidence and if juries look at disclosure differently in cases involving gay men. If the defence team is on the ball, it should point out how much HIV health promotion has been targeted at gay men in the gay media and commercial venues. The instruction from the judge to the jury will be interesting – will it be different from the other cases? Will there be an acknowledgement that gay men have greater proximity to the HIV epidemic than UK heterosexuals?”
Sadly, more prosecutions will be needed to answer these questions.