HIV & Criminalisation

Since 2003, the ‘reckless transmission’ of HIV has been brought under section 20 of the 1861 Offences Against the Person Act in England and Wales. In Scotland, a person could be charged with ‘reckless injury’.

If you are HIV+ and you have unprotected sex, and someone becomes infected with HIV as a result, then criminal proceedings can be brought against you. Reckless transmission occurs when someone takes an unjustifiable risk (ie. behaves in a reckless manner).

When considering the charge that could be brought against someone, it is important that the language is used properly, ‘reckless transmission’ is not the same thing as ‘knowingly infecting’ someone, as every case of exposure does not necessarily lead to transmission, so it is impossible for anyone to ‘knowingly infect’ someone else.

Cases of reckless transmission of HIV are not the same thing as intentional transmission infection, and this is not how it is viewed in the eyes of the law. Cases of intentional transmission of HIV are a different offence under Section 18 of the Offences Against the Person Act.

In England and Wales, someone may be guilty of reckless HIV transmission if they knew they had HIV; they understood how HIV is transmitted; they had sex with someone who did not know they had HIV; they had sex without a condom; they transmitted HIV to that person.

The legal system in Scotland is different, and there has been one case of a man being convicted of ‘reckless endangerment’ by exposing sexual partners to HIV even though transmission did not occur.

Several people in the UK have been charged with Grievous Bodily Harm, and even sent to prison because they had not told someone that they were HIV positive before having unprotected sex with them. There have been many more arrests, which can have a devastating effect on people’s lives, as the investigations can last for months in some cases.

Lawyers have stated that if condoms are used every time someone has sex, and for the full duration of sex, then this would be a good defence if transmission did occur, however this has yet to be tested in court.

Advice on what to do if the condom breaks, is generally to inform your partner that you are HIV+ and to advise them to go for Post Exposure Prophylaxis (PEP).

Checkout: www.pep.chapsonline.org.uk

Everyone should be looking after their own health, and be taking steps to ensure that they do not pass on or contract HIV.

However, in the eyes of the law the responsibility lies solely with the person who has HIV. It is important to remember this, and not to assume that someone also has HIV if they initiate unprotected sex.

George House Trust is the main voluntary organisation for supporting people with and affected by HIV in North West England: 0161 274 4499   www.ght.org.uk
NAM works to change lives by sharing information about HIV and AIDS: www.aidsmap.com

August 2011