Lifestyle

HIV, Prosecution and Law

If you have HIV it is important that you keep a clear picture of the law and HIV. This can be very confusing and there are some high profile cases which have put a spotlight on the sexual behaviour of people with HIV.

This section of the website will hopefully explain some of issues around criminalisation and transmission of HIV.

There are also some helpful advice and support pages around the internet which explains this issue very clearly. Some of these are listed in the links section.

If there is any further information you require about criminal prosecution of HIV or would like to talk to someone about this you can always contact the office.

The Background – What the law says

Court cases in England, Wales and Scotland have seen the criminal prosecution of individuals who have infected their sexual partners with HIV. It has only recently in law become established that it is a crime to give someone HIV and therefore the legal position could still change. This website will be updated regularly when important developments occur.

The Legal framework

At this moment in time (October 2006); In England and Wales people who infect someone with HIV can be charged with 'Recklessly Inflicting Grievous Bodily Harm' under section 20 of the Offences Against the Person Act 1861. In Scotland people can be prosecuted for 'Reckless Injury'.

The 1861 Offences Against the Person Act also has a charge of 'Intentional Grievous Harm', (Section 18). This offence has never been successfully used although the media has suggested otherwise. In England and Wales all of the cases so far have been of 'reckless grevious bodily harm' (Section 20)

To secure a conviction of 'reckless grievous bodily harm' (Section 20) there has to be proof of:

  • The person infecting their partner.
  • The person with HIV was aware (or should have been aware) of the risk of transmission.
  • The person who became infected did not explicitly give informed consent to sex with someone who they knew was HIV positive.

The punishment of 'reckless grievous bodily harm' is a maximum prison sentence of five years for every person infected. There is no minimum sentence.

There is a possibility that someone who has no settled residency status in the UK can be deported after finishing their sentence, and this has been recommended in some cases already.

The penalty for 'intentional grievous bodily harm' is a maximum sentence of life imprisonment.

Definitions

In legal terms 'reckless' means that the person with HIV was careless before sex because either:

  • They did not say that they had HIV (or lied about their status)
  • They did not use a condom
  • They did not plan for their partner to become infected – but they are guilty of not trying to stop it happening.

There can only be a case of 'grievous bodily harm' (GBH) if a case of transmission has occurred.

Although it is theoretically possible that a case of 'intentional' grievous bodily harm could be brought in the case of sexual transmission of HIV it is highly unlikely. It is more likely that cases of 'intentional' grievous bodily harm may come to court where there has been attacks that specifically intend to infect others, such as attacks with a syringe of infected blood.

Whose responsibility?

Many people have heard the saying 'it takes two to tango', this means that it is the responsibility of both partners. There is a huge debate about who's responsibility it is to prevent HIV infections. Some people believe that it is the responsibility of the HIV positive partner to tell their sexual partners about their status, other believe that is all our responsibility to make sure that we have sex that is safe enough for us.

It has become clear that 'in law' the responsibility for safer sex lies with the person who is living with HIV. This is because if HIV transmission occurs then it is the person who is living with HIV that can be prosecuted.

Uninfected people still need to take some responsibility for protecting their health. It is unrealistic and unwise to believe that all of your sexual partners will either know or disclose their HIV status.

Your responsibilities if you are HIV positive

If you are HIV positive you should think about your responsibilities, especially as you could be prosecuted for transmitting HIV if you do not use a condom. Please read Criminalisation – The Background on the HIV Prevention Service's Positively Sexy website after you read this page.

You may think that if your partner chooses to have unprotected sex that they are aware of the risks that they are taking or have the same HIV status as you. The law says that if someone is not informed about the positive HIV status of their partner they cannot make an informed choice about having unprotected sex. If you have told your partner about your HIV status and they choose to have unprotected sex with you then you would be protected in law. This would mean that they would have had what is called 'informed consent'.

Knowledge of your HIV status

If you have not tested or have no reason to believe that you have an HIV positive status this may be a reasonable defence against prosecution of transmission; although in one case someone was prosecuted even though they had never tested because the law states if you ought to have known or suspected your HIV positive status then you should have taken reasonable precautions. This is especially true of groups where there is a high risk of infection including African people, sex workers and injecting drug users.

Staying untested may not protect you from the law and could also damage your health. The longer that someone is HIV positive and untested then the more damage the virus can do to their body.

In conclusion

It is important to think about your responsibilities for transmission of HIV, but do not allow these to spoil your sex life. If you need a reminder of the key points we have made a small list below and if you want to talk to someone about these issues please feel free to call our office (on 0800 075 1 057), or send an email.

Key Points

  • Think about disclosing your HIV status before having sex, if you do not wish to do this or it is not appropriate always use a condom. The law states that if you are HIV positive then it is your responsibility to have safer sex.

  • If you don't use a condom or if a condom breaks you should inform your partner of your positive HIV status and help them to access PEP (Post Exposure Prophylaxis) – see After a condom fails...

  • Ignorance about your status cannot be a legal defence. Especially if you are in a 'high risk' group.

  • If you find yourself in a situation where you think you may be at risk of legal action for transmission of HIV get some legal advice as soon as possible. Any of the services listed in the Links page can support you to do this.