The Crown Prosecution Service (CPS) has made available for public consultation a draft version of their policy for prosecuting cases involving sexual transmission of infections which cause grievous bodily harm. The document covers the intentional or reckless sexual transmission of HIV, as well as the following sexually transmitted infections (STIs): chlamydia; genital herpes; gonorrhoea; hepatitis A, B and C; LGV (lymphogranuloma venereum); non-specific urethritis (NSU), and syphilis. The deadline for comments is November 3rd.
Since 2003, there have been eight convictions in England and Wales under Section 20 of the Offences Against the Person Act 1861, all of which have been for the reckless transmission of HIV. Only two of these cases went to trial; the remainder pleaded guilty. A ninth individual was found not guilty last month.
The spectre of criminalisation of HIV transmission has created a great deal of debate within the HIV community, as well as the public at large via sensationalist newspaper headlines.
It should be noted that the decision to prosecute a case is the full responsibility of the CPS, not that of the complainant nor of the police.
In addition, the CPS is not looking to change the law, but merely to interpret the law as it has been created by the decisions in the various trials of the first man to be successfully prosecuted for reckless HIV transmission in England, Mohammed Dica.
The CPS has consulted on the draft document with some doctors and several HIV and sexual health charities that advocate on behalf of HIV-positive people. These include the African HIV Policy Network (AHPN); National AIDS Trust (NAT); Positively Women; Terrence Higgins Trust (THT); and the UK Coalition of People Living with HIV and AIDS (UKC). A full list of everyone consulted so far can be found here.
However, the UKC said it was ‘disappointed’ with the draft document. “We were pleased that the CPS were persuaded to consult the HIV community on recent prosecutions, but feel that our views were largely ignored and that the energy we put into a series of meetings was wasted,” said UKC Chair, Bernard Forbes.
“The CPS says it is ‘determined to play our part in stopping the sexual transmission of infections’,” he adds. “Whether throwing people in jail does anything to stop HIV or just fuels public hatred of people with the virus is something they don’t consider.”
Seamus Taylor, the CPS’ Director of Equality and Diversity, says that the CPS’s guidelines on the criminal prosecution of HIV and other STIs exist in order “to issue a clear statement that explains the way we handle cases involving the intentional or reckless sexual transmission of infections. We wish to set out our position clearly as we want to promote greater confidence in the criminal justice system - a key aim for all agencies involved.”
The CPS is now seeking views from individuals affected by HIV and other STIs, as well as clinicians and organisations that work with these individuals (such as doctors, nurses, and sexual health advisors) and/or those who advocate on their behalf.
In particular, the CPS is seeking comments regarding the following questions:
- What relevance, if any, should be given to the defendant's reliance on medical/clinical advice that he/she received?
- When determining whether it is in the public interest to prosecute what weight, if any, should be given to a defendant's limited ability to ensure the use of protection?
- Should the context in which the sexual behaviour occurred be a relevant factor when determining whether it is the public interest to prosecute; and if so, why?
- Should the defendant's age, vulnerability or understanding of the nature of the infection be relevant to the public interest considerations?
- Are there any other relevant public interest factors that should be taken into consideration?
However, the CPS makes it clear that the final version of the document – which will be published in February 2007 – is the responsibility of the CPS alone. “It should be noted [that the above questions] are listed for consultation and have not been settled as agreed public interest factors,” the document reads. “Thus they may be changed, altered or omitted from the final agreed document. Even then, the list will not be binding in any particular case, and the CPS will also be required to consider any additional factors which appear relevant.”
THT and NAT have joined together to provide further information on the criminal prosecution of HIV and other STIs as well as guidelines for commenting on the CPS consultation document. These are available from special sections of THT's website and NAT's website.
Lisa Power, THT’s Head of Policy says that "it's vital that people who have something to say about the way in which people are being prosecuted for sexual transmission of HIV respond to this consultation. The CPS need to hear what is really happening and how it affects the ability of people with HIV to live their lives, and the ability of doctors and others to provide services for them."
The full CPS consultation document can now be read online at the CPS website.
The consultation document is also available to view on the UKC website which also includes an anonymous online response form for individuals who would like the UKC to respond on their behalf.