The Crown Prosecution Service's (CPS) current policy of prosecuting reckless HIV transmission “lacks a real understanding of the very different concerns, circumstances and vulnerabilities of people living with HIV,” according to the Expert Advisory Group on AIDS (EAGA), which published their response to the CPS public consultation this week. EAGA also asserts that “the damage to the public health is such as to outweigh any benefit from prosecuting reckless transmission, except in the most extreme and unusual cases.”
Since 2001, eleven prosecutions have taken place in the United Kingdom (one in Scotland; ten in England and Wales, with just one acquittal) for the sexual transmission of HIV. In addition, several more cases are due to go to trial in Scotland and England over the coming weeks and months. Although relatively few in number, the impact of these prosecutions has been widespread, galvanising civil society, and resulting in a public consultation regarding confidentiality from the Department of Health, and a public consultation on the CPS policy itself.
EAGA consists of many of the UK's top HIV and sexual health consultants; other experts in the epidemiological, psychological, public health, and legal aspects of HIV; and members of voluntary and community HIV organisations. EAGA's main role is to advise the various Departments of Health in the UK on HIV and AIDS.
Public interest includes more than convicting alleged criminals
EAGA notes that the CPS's idea of what might be in the public interest “seems narrow” and that the “public have interests other than the conviction of criminals. One interest they have is in the proper control of sexually transmitted infections (STIs), including prevention of future transmissions. If the law is framed in such a way that prosecutions, or the possibility of such prosecutions, interfere with the ability of the health care system to control [STIs], then that would surely be detrimental to the public interest.”
Consequently EAGA only “supports the use of criminal sanctions for transmission of HIV under certain circumstances where there is a recognised threat to public health” and where “the benefits of prosecution outweigh the negative impacts on individual and public health.” These include deliberate, intentional infection and “deception about infection status/deliberate attempt to mislead, in the absence of extenuating circumstances”.
EAGA suggests that “where a person's reckless sexual behaviour has resulted in the infection of more than one sexual partner, and that behaviour is continuing, there will be a stronger public health argument for prosecution than when there is a single victim” although “prosecution should be a last resort, having exhausted all other less punitive measures.”
Prosecutions have a 'negative impact on public health'
EAGA states that in their “expert opinion, based on direct and indirect experience of members, that criminal prosecution for reckless transmission of HIV is having a negative impact on public health, because such a policy is a major barrier to normalising the disease.”
It notes that “health professionals [are] modifying the advice given to HIV-infected patients” because they “are conflicted between building trust with their patients and knowing that information provided by patients about their sexual partners and recorded in the patient's notes could be subpoenaed and used against them in a court of law”.
Conversely, it notes, “the risk of criminal prosecution may be leading to" HIV-positive individuals not disclosing the full details of their sexual practices, "to the detriment of partner notification and public health.”
CPS policy 'undermines' Department of Health policy
EAGA notes the inherent “conflict between the government's policy on criminal prosecution and its objectives for HIV prevention and health promotion” and states that it “would not approve any policy which had the effect of undermining initiatives that are integral to the Department of Health's response to the HIV epidemic.”
It suggests that prosecutions are increasing “stigma and discrimination towards those affected by and infected with HIV" and notes that “the defendants may themselves be victims”.
EAGA stresses that “as a general principle it is important that the CPS policy supports the public health messages that sexual health is a shared responsibility and that assumptions about infection status should not be relied upon as a means of protection.”
The CPS needs to understand the science of HIV
EAGA also stresses that “the CPS needs to reconsider the scope of this policy both on scientific and practical grounds. In order to implement it, prosecutors will need to have a good understanding not only of HIV, but of each of the other STIs, their means and probability of transmission, etc.”
“There seems to be an assumption,” notes EAGA, “that the science of HIV transmission is sufficiently robust to provide definitive evidence of the timing and route of transmission. The limitations of the scientific evidence are not addressed. The position as regards bacterial infections is even more uncertain.”
EAGA highlights the fact that “criminal cases cannot be brought on the basis of virological evidence alone,” which was also stressed by virologist Dr Anna Maria Geretti acting as an expert witness in the recent criminal trial that resulted in a not guilty verdict.
“Taken in isolation,” it says, “evidence demonstrating genetic similarity of HIV isolated from two infected individuals cannot prove the direction of transmission nor exclude the possibility that the two individuals share a common source of infection. Such evidence needs to be examined in the context of clinical and epidemiological information to understand the probable sequence of events (e.g. timing of diagnosis may be critical).”
EAGA's key recommendations
- The CPS policy should promote responsible sexual behaviours and attitudes to HIV testing by: stating that appropriate condom use is incompatible with a charge of reckless transmission; clarifying that disclosure following an exposure incident to enable post-exposure prophylaxis (PEP) to be sought will create a strong presumption against prosecution for reckless transmission; acknowledging the fact that, because only people who know their HIV-positive status can be prosecuted, this policy may operate as a disincentive to testing.
- The CPS policy should support public health by making it one of the factors always taken into account when considering the public interest test.
- The CPS should set a high threshold for its definition of serious harm to discourage 'trivial' cases and ensure prosecution is a proportionate response.
- The CPS should set far more stringent criteria for assessing whether to prosecute.
- The CPS should not prosecute for reckless transmission of HIV on the basis of virological evidence alone.
EAGA's complete response to the CPS consultation can be downloaded from EAGA's consultation response web page.
Need to pragmatically define “really serious harm”
EAGA notes that “public perception of HIV infection as a dreaded disease with an inevitably fatal outcome has not kept pace with reality. Advances in treatment mean that HIV infection can, like many other chronic conditions, be managed medically with considerable success. There is strong evidence to demonstrate that those diagnosed early in the course of the disease can expect a good quality of life and prolonged survival."
The CPS consultation also includes reference to a wide variety of viral and bacterial infections, some of which can be acquired sexually. EAGA notes that this is “one of the most disturbing aspects of the document.” It concedes that “broadening the policy to cover other infections may be desirable to avoid stigmatising HIV,” but adds that “there is a danger of confusion because of significant differences between the infections listed. It questions the CPS's understanding of the nature of STIs, how they are transmitted and whether they actually cause any serious harm in pragmatic terms.
As an example it uses the case of genital herpes, which “is simply a cold sore on the genitals, indeed half of all cases in the UK are thought to be caused by transmission of herpes from the mouth to the partner's genitals during oral sex. It causes little serious physical harm and most people who contract it are not even psychologically disturbed by it in the longer term. Even given the definition in the document, it seems to defy common sense that this could constitute grievous bodily harm.”
EAGA adds that HSV, the virus that causes genital herpes, is often passed from parent to child with a kiss on the cheek. “Why should it be grievous bodily harm to infect a partner with genital herpes through sex, but not when an adult infects a child by kissing their cheek, or another adult by kissing their mouth?”
It stresses that “the CPS needs to take the advice of experts regarding the seriousness of [STIs]. In the vast majority of cases, seeking to prosecute transmission would be an entirely disproportionate response.”