CRIMINAL PROSECUTION FOR HIV TRANSMISSION

The Crown Prosecution Service (CPS) for England and Wales recently issued new guidance on criminal prosecution for the “sexual transmission of infections which cause grievous bodily harm”. You can however download a copy of the consultation document from here.

The policy is most likely to be used in cases relating to transmission of HIV, although other sexually transmitted infections can be prosecuted. As of March 2006 there had been seven criminal convictions for the reckless transmission of HIV in the UK, one in Scotland and six in England and Wales. All have involved the transmission of HIV through heterosexual contact. English cases have been brought under the Offences against the Person Act of 1861, Section 20 (recklessly inflicting grievous bodily harm). Some have argued that prosecutions under the current 1861 Act should be restricted to cases where the transmission of HIV was intentional and not to have the law used for cases of reckless transmission. Much of the legal discussion in the cases to date has focussed on the issue of disclosure (or lack of disclosure) of HIV status to sexual partners and the definitions of what might constitute recklessness.

Criminal prosecution for reckless transmission of HIV presents a further challenge to how we respond to HIV and support positive individuals. The first prosecution in England and Wales took place in 2003 and led to a great deal of discussion and debate within the HIV sector and amongst those living with HIV.

Whilst it is accepted that developing criteria for prosecutions is of benefit there are concerns about using the law to criminalise disease transmission. People living with HIV have seen treatments improve and many are able to live relatively healthy lives. There has never been a better time to encourage individuals at risk to come forward for testing and if positive provide access to treatment and support. The prevalence of HIV infection continues to rise and this provides the incentive for prevention initiatives that focus on avoiding exposing sexual partners to infection.

Those living with HIV already face prejudice and discrimination so it is important to support people with HIV in managing their everyday lives free from the fear of prosecution. Individuals in this situation need support to plan how and to whom they will disclose their HIV status working with them to protect their sexual partners and others from infection, yet acknowledging the need to deal with instances of intentional transmission.

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