Criminal Prosecution for HIV Transmission

With ENORMOUS thanks to: Yusef Azad – NAT Lisa Power - THT

Prosecutions to Date: England and Wales 13 prosecutions for reckless transmissions since 2003 (Last prosecution 2006) 10 heterosexual/3 homosexual 10 convictions/3 acquittals All convicted got custodial sentences 6 migrant men (5 African/1 EU) 5 white British men 5 white British men 2 white British women 2 white British women

Offences Against the Person Act 1861 All England /Wales prosecutions have been under: Section 20 – “inflicting any grievous bodily harm with or without a weapon” – applies to reckless transmission In Scotland, the crime is “culpable and reckless conduct” - a common law offence

Clarifying the Law in England/Wales CPS Policy Statement and Guidance on Prosecuting Intentional or Reckless sexual transmission of infection – March 2008 No such clarification in Scotland yet No such clarification in Scotland yet

Recklessness “ The conscious taking of an unjustifiable risk” The key legal concepts for recklessness in disease transmission: Need to infect their partner with HIV Need to know they are HIV+ Need to understand the risk of transmission Need to engage in behaviour which carries a risk of transmission

The Defence of Consent “Consent” of the sexual partner to risk of infection is a defence BUT…. Consent to risk does not mean someone understanding in general terms the risk of HIV from UPSI

I. Infecting your partner with HIV For reckless transmission cases, the sexual partner MUST have been infected by the defendant with HIV Currently there are problems with complaints, arrests and investigations where it is not clear anyone has actually been infected

II. Infecting your partner with HIV Are we sure it was the defendant/accused who infected the complainant? The assumption should not be made that it is the person first to be diagnosed who is responsible for the infection Various elements of evidence combine to demonstrate the likelihood of infection: Sexual histories of both parties Testing histories of both parties Phylogenic analysis of virus samples from defendant and complainant

III. Infecting your partner with HIV :Phylogenic analysis Used in prosecutions to see if virus samples of complainant and defendant “match” PA has to take place for a prosecution to be successful PA can prove that the defendant did NOT infect the complainant – i.e. the samples to not “match” If the samples DO match, it is possible the defendant infected the complainant – but there are other possibilities e.g. – both infected by a 3 rd party, the complainant infected the defendant Proof of responsibility for infection will be extremely difficult where the complainant has had more than one sexual partner over the relevant period

Knowing you are HIV+ Knowing you are HIV+ In the vast majority of cases a person only knows they are HIV+ if they have been diagnosed In the vast majority of cases a person only knows they are HIV+ if they have been diagnosed Need to prove defendant understood: 1) Knowledge they were HIV+ 2) Knowledge they are infectious to other people 3) Knowledge of how HIV can be transmitted

CPS note “shock of diagnosis” – “any further information that is given at the same time as diagnosis may be unlikely to have registered with the defendant”

I.Risk Taking behaviour UPVI/UPAI constitutes risk taking behaviour CPS guidance states “appropriate and reasonable safeguards” are a defence against a charge of reckless transmission – for HIV the safeguard would ordinarily be a condom Where a condom has been used appropriately (or the defendant in good faith believed it had been so used) it is likely a prosecution would fail even if transmission had taken place

II. Risk taking behaviour What if the condom breaks and is noticed? CPS guidance is less clear although encourages a “reasonable and practical view” of whether recklessness is provable If the defendant becomes aware of the condom breaking, status should be immediately disclosed or resume sex with a new condom

PEP CPS guidance is silent on this NAT/THT currently seeking greater clarity Unclear whether there is any legal obligation on PEP advice where it is thought transmission could have taken place It is safer from a responsible and legal point of view to advise partner to access PEP

III. Risk Taking behaviour Oral sex? No cases as yet which is unsurprising To be completely safe from prosecution advisable to disclose status to sexual partners or use a condom Undetectable VL? While HIV clinicians and health professionals continue to advise condom use for those with an undetectable VL, it is questionable that whether a defence bases on VL would succeed

Consent of Complainant to risk of Transmission Consent of complainant to the risk of HIV transmission is a defence BUT a general knowledge of the risks of UPSI does NOT constitute consent for the purposes of law The complainant HAS to have known of the HIV status of the defendant – usually through the defendant disclosing their status CPS does acknowledge possibility of knowledge from a 3 rd party, hospital visit, symptoms

Sentencing Maximum sentence for a single charge of reckless transmission is 5 years in prison All sentences to date have been custodial and most over 3 years

In Conclusion….. You may be prosecuted for reckless transmission of HIV if: You know you are HIV+ You understand the risk of HIV transmission You engage in risk taking sexual behaviour, and as a result…. You infect your sexual partner You have not previously disclosed your HIV status to that sexual partner.

Role of Health Advisers Make sure your information is up to date Don’t advise on what you don’t know Ensure you are a source of support to both people facing charges and people bringing charges Ensure people with HIV know about the law HOWEVER Give people FACTS – do NOT become emotionally/personally involved Refer on to THT/NAT who have experience dealing with both sides of the situation and have lawyers they work with

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Further Information