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HIV and the criminal law

Introduction
One of the key responsibilities of an HIV-positive person is to prevent transmission of the HI-virus. However, not all people have the same level of responsibility. HIV is continually being spread by other HIV-positive people, primarily through sexual intercourse¹.

The question can therefore be asked if one could prosecute a person who transmits the HI-virus. There is unfortunately not a simple answer to the question.

Confidentiality
It is a known fact that a person’s HIV status is protected and he or she is under no obligation to disclose their status to any person. Even medical records are protected by law.² Thus, no-one is under any obligation to share private medical information with anybody. However, it seems that if a person knowingly endanger the lives of other people by not disclosing some important medical information, that person can be held responsible for the consequences of their deeds. Since 2001, thirteen people have been successfully prosecuted in the United Kingdom alone for infecting their sexual partners with HIV.³

The widely accepted and responsible rule would be to disclose your HIV-positive status to a sexual partner before having sexual intercourse. It is preferable that an intimate relation, such as a sexual relation, should therefore be built on trust and respect.

Ironically, research has shown that amongst high-risk groups and in high HIV prevalence areas, there is seldom a disclosure of a HIV-positive status.⁴ The reason being that people are afraid of being rejected and the stigma associated with being HIV-positive.

Types of transmission
The law recognises three types of transmission:

• Intentional transmission: The deliberate transmission of HIV is considered the most serious form of criminal transmission. Some cases have involved individuals where one is HIV positive and the other HIV negative that have used needles or other implements to intentionally infect with HIV. Others have been based on HIV positive people who have had sex with the primary intent of transmitting the virus to their unsuspecting partner.⁵
• Reckless transmission: This is where HIV is transmitted through a careless and not a deliberate act. If a person who knows they have HIV has unprotected sex with an HIV negative person, but fails to inform them of the risk involved, this could be classified as reckless transmission.⁶"Reckless here implies that transmission took place as part of the pursuit of sexual gratification rather than because the HIV positive person intended to give their partner HIV.”⁷
• Accidental transmission: A person have accidentally transmitted HIV if:
  • They were unaware that they had the virus and therefore did not recognise the need to take precautionary steps to protect their partner from becoming HIV-positive too.
  • They were aware of their HIV positive status and they used a condom during sex, but the condom failed in some unforeseen way.⁸

Proof that one person has infected another
It might be argued that if a person gives consent to having sexual intercourse, it stands to reason that such a person takes full responsibility for the consequences of such an act. This is not true, since the law states clearly that “the person who does not have HIV cannot consent to unprotected sex unless this decision is informed”.⁹

Proofing that one person has infected another is often very difficult. Firstly, the person who is infected must have previous blood tests to proof that he or she was HIV-negative shortly before infection. Secondly, if blood tests cannot proof that the virus strains in both persons are not similar, then there is no proof of infection.¹⁰ Even if the blood strains are indeed similar, it is not enough proof on its own to get a person convicted, additional proof is needed. Other evidence will include the medical and sexual history taken from medical records or diaries of both the person making the complaint and the person who is accused, to try and understand the timing of both person’s HIV diagnoses, and whether the person making the complaint could have been infected in another way.¹¹

Under which conditions can a person be convicted of purposefully transmitting HIV to an HIV-negative person?
Getting an HIV-positive person convicted of recklessly and purposefully infecting another person with HIV is challenging to say the least. The prosecution has to prove that:

• The accused had knowledge of his/her own HIV-positive status;
• The accused understood that he/she was infectious;
• The accused understood that HIV is transmitted sexually;
• The accused did not use condoms consistently and/or did not make his/her HIV status known to the person making the complaint so that they could explicitly consent to the risk of HIV transmission.

Conclusion
Many HIV-positive people want to decriminalize HIV-transmission, since it leads to more stigmatization and contributes to the culture of blaming people for AIDS, which was evident in the early years of the epidemic.¹² Whichever way, it is of utmost importance that the following should be stressed:

• Everybody should take full responsibility for their own actions.
• In spite of the fact that disclosure of an HIV-status is up to the individual, it is still the responsibility of the HIV-positive person to indicate his or her HIV-status to an unsuspecting sexual partner who is either HIV-positive or HIV-negative.
• Any person should enquire to the status of the other person before engaging in sexual intercourse and just to be on the safe side, insist on using a condom, especially if that other person is not well known to you.

“Right or wrong, however, criminalisation does mean there is now an extra concern for any HIV-positive person who decides to have a sexual relationship.”¹³ By acting as responsible and trustworthy individuals, the spreading of the virus can be contained and HIV-positive people can maintain a healthy sexual relationship without fear of being prosecuted.

Sources

1. AVERT: Criminal transmission of HIV. Accessed on 19 August 2010 and available at http://www.avert.org/criminal-transmission.htm
2. NAM: Confidentiality. Accessed on 19 August 2010 and available at http://namlife.org/cms1255091.aspx
3. NAM: HIV transmission and the criminal law. Accessed on 19 August 2010 and available at http://namlife.org/cms1255092.aspx
4. AVERT: Criminal transmission of HIV. Accessed on 19 August 2010 and available at http://www.avert.org/criminal-transmission.htm
5. Ibid
6. Ibid
7. Ibid
8. Ibid
9. NAM: Confidentiality. Accessed on 19 August 2010 and available at http://namlife.org/cms1255091.aspx
10. NAM: HIV transmission and the criminal law. Accessed on 19 August 2010 and available at http://namlife.org/cms1255092.aspx
11. Ibid
12. AVERT: Criminal transmission of HIV. Accessed on 19 August 2010 and available at http://www.avert.org/criminal-transmission.htm
13. Ibid

Author: Pieter Visser
Reviewed by: Hendra van Zyl
Contact: afroaidsinfo@mrc.ac.za
Date: September 2010

Last updated: 3 September 2010