This was written in May 2005, and updated in June, July, November and December 2005, February, April, June and July 2006, and most recently on 10th August 2006. We say this at the top because the law in this area is changing rapidly and we expect it to go on changing. We will try to keep it up to date, but be careful about relying on it if it is more than a couple of months old.
It is also not legal Advice - for that, you need to speak to a specialist solicitor - and it applies mostly to England and Wales, rather than Scotland or Northern Ireland. (If you are affected by this, please contact us as soon as possible and we can put you in touch with specialists.)
When we use the word 'think', it is an acknowledgement that there are people who disagree, but there is no way of knowing which of us is right until a court decides.
OK with that in mind...
Ten cases to date...
Since 2003, seven men and two women have been tried in England and Wales for infecting someone with HIV, thus causing them 'grievous bodily harm' ("GBH"). One man in Scotland, which has a different legal system, has been tried for 'culpable and reckless conduct' resulting in someone else being infected.
Although around 80% of HIV transmissions in the UK happen as a result of sex between men, all but two of the cases involved heterosexual, i.e. male to female or female to male, transmission. (Although at least one of the six men convicted for male-female transmission is bisexual.)
As far as we know, and despite some consistently appalling misreporting in the media, in none of the cases was it suggested that the infection was deliberate: that they set out to infect their partners.
Rather, it was 'reckless': they were:
- aware of a risk of infection
- but behaved in a way that was 'unreasonable'
- and which resulted in infection.
(This is the so-called 'Cunningham' test of recklessness, which requires the defendant to know that a risk is being taken, even if the injury is not intended.)
More cases are pending. For example, one in Scotland was due to start in April 2005 but has been delayed until the accused is able to stand trial there. Several other people have also been interviewed by the police as part of the process of deciding whether or not to prosecute, and someone else has been declared unfit to stand trial for the offence by reason of insanity.
... nine convictions ...
The average sentence was around three years per infection.
In all but three of the cases in England & Wales, there was a 'guilty' plea; in another, "Konzani", an initial conviction was upheld by the Court of Appeal; and in the other case, "Dica", an initial conviction was overturned by the Court of Appeal but a re-trial resulted in another conviction.
... one acquittal
In August 2006, a gay man was acquitted on the direction of the judge following evidence that it could not be proved that he had, in fact, infected the complainant.
An expert from London’s Royal Free Hospital, recommended to the defence by the Terrence Higgins Trust, successfully argued that the analysis of the virus in both men, combined with the complainant's sexual history of unprotected sex with other men, could not prove who had infected him.
How did this happen?
The initial prosecutions came as a big shock to many, because until they happened, the position was thought to be clear: reckless infection with a sexually transmitted infection, even when the disease was concealed from the partner, was not an offence.
'Clarence' - [1888] 22 QBD 23 - is the critical case: a Victorian husband deliberately didn't tell his wife he had gonorrhoea, and she said that she would not have consented to sexual intercourse with him had she been aware of his disease. She was infected, but he was found not guilty, on appeal, of assault contrary to section 20 of the Offences Against the Person Act 1861 - the same act being used now.
This principle held for over a century, but in the first of the English cases, the Appeal Court decided that Clarence no longer applied with regard to transmission of concealed infections: if Clarence were tried again today, he'd be convicted.
This was particularly surprising because the decision went against stated Government policy. In 2000, the Home Office published a consultation paper on the law relating to manslaughter in which they said (section 4.3)
".. we made it clear that the Government proposed that only the intentional transmission of disease should be a criminal offence. This was in part because the Government is determined to ensure that people are not deterred from coming forward for diagnostic tests and treatment and for advice about the prevention of sexually transmitted diseases such as HIV or hepatitis B and that someone with such a disease should have no reason to fear prosecution, unless they deliberately set out to cause serious injury to another by passing on the disease. The Government remains wholly committed to this approach."
(Emphasis ours.)
However in the English legal system, it is not just the Government through Parliament that makes the law: judges do so too by their rulings, and these tend to come in stages as various aspects of the law are 'clarified' by judges in new ways.
As with virtually all criminal cases in England & Wales, the cases were brought by the Crown Prosecution Service (a government department whose head, the Director of Public Prosecutions, is appointed by a government minister, the Attorney General) who have a duty to only proceed with cases where it is "in the public interest" to do so.
As far as we know, there have not been any cases for anything other than HIV although the overturning of Clarence means that the reckless transmission of any sexually transmitted disease may be seen as criminal. This singling out of HIV is one of the many disturbing aspects of the situation.
Are you at risk?
So the situation is still not entirely clear. Unfortunately, in December 2005, the House of Lords refused to hear the appeal in the Dica case, despite the important principles involved. What will happen next is unknown.
As best as we can tell - and this is our view, and might not be that of the Crown Prosecution Service who actually decide this - if you have HIV, you are only likely to be prosecuted if:
your partner doesn’t know you have HIV
and you don’t tell them
and you don’t use a condom for all anal and vaginal intercourse
and they become infected as a direct result
and someone decides to make a complaint to the police.
Looking at these in order:
Your partner doesn't know and you don't tell them..
Most people who do not have HIV say that they expect that anyone who does have it will tell them before they have sex.
Unfortunately, many people also say that if a potential partner did tell them they had HIV, they'd run away screaming.
This fear and prejudice is a major reason why many people with HIV do not tell their partners, at least at first.
Issues of disclosure have been at the heart of all the cases, and it is the area which may change the most with new cases and new appeals.
In the Dica case, the judge in the first trial said that whether or not the women knew of his HIV status, their consent to having sex with him was irrelevant and provided no defence. This appalling ruling was overturned by the Court of Appeal, who ordered a re-trial.
The situation was complicated by the later appeal in the Konzani case, where the Court of Appeal made the curious distinction between
being aware of the risks of having unprotected sex with someone, including infection or pregnancy,
and
consenting to the specific risk that they might be infected with HIV as a result.
Because his HIV status was concealed from the women, the court controversally declared that there could not have been informed consent to the second risk, or even an "honest belief" on his part that there was, despite their willingness to have unprotected sex with him, knowing of the more general risks.
So at the moment, it looks like
IF someone knows you have HIV, and they consent to have unprotected sex with you,
THEN that consent will protect you from being convicted as a result of any infection
..but..
IF someone does not know you have HIV, and they consent to have unprotected sex with you,
THEN that consent will be ignored by the courts, even if they know that unprotected sex can be risky
Note that not testing will not protect you from being prosecuted!
One of the convicted men, Adaye, had never had an HIV test, but the court decided that he should have known he had HIV. It was reported that he knew a long-term partner had HIV, but we now know that this is not the case and it was just that he had been told by a GP that he was at high risk of having HIV.
Unfortunately, because there was a guilty plea in this case, this very disturbing aspect has yet to be tested by the Court of Appeal. If it is upheld, it could mean that anyone thought to be in a 'high risk' group (ie gay and bisexual men, people from sub-Saharan Africa, IV drug users etc etc) will be expected to act as if they know they have HIV.
It is also unclear when the convicted woman was diagnosed - it is possible that she was diagnosed after the transmission of infection for which she has been convicted.
In any case, if you have reason to think you could have contracted HIV, not getting a test is not only bad for your long-term health – it might not stop you getting prosecuted either. So it’s not a good reason to refuse to test.
..and you don’t use a condom for all anal and vaginal intercourse..
Condoms are highly effective at protecting people from HIV and most other sexually transmitted infections. Even using a condom that breaks can be better than not using one at all.
We think - and again, this is our thoughts rather than those of the Crown Prosecution Service - that this means it is unlikely that anyone who uses a condom every time with a particular partner would ever be charged with infecting them: they're many many times less likely to be infected, and if something did go wrong, the person with HIV has not been reckless, but has followed the best advice in practicing safer sex.
The same reasoning applies to unprotected oral sex.
..and they become infected as a direct result..
If someone with HIV has any reason to believe that transmission could occur (for instance, if a condom breaks during sex) when they had not previously disclosed, then they should consider telling their partner they have HIV and advise them to get PEP (post-exposure prophylaxis) immediately in order to help prevent possible transmission.
..and someone decides to make a complaint to the police
When people first test HIV+ve, it is not uncommon for them to be angry, but there are a number of issues to think hard about before making a complaint. Anyone in that situation should talk to a specialist, for example by contacting the Terrence Higgins Trust.
In the case of Sarah Porter, the second woman to be convicted, the complaint to the police came from someone who had unprotected sex with her, was not infected, but heard a rumour that she had HIV. Amazingly, this lead to an extensive police investigation into her sex life and one man was found to have been infected as a result of also having unprotected sex with her. She was then prosecuted.
We believe two other people's sex lives are being investigated in a similar manner.
Issues for HIV+ escorts and sex workers
We think - the disclaimer applies doubly so here! - that escorts with HIV are unlikely to be prosecuted for infecting a client.
As well as the very high levels of condom use by escorts, we have two other reasons for thinking this.
Firstly, anyone paying you for unprotected sex is probably having it with someone else - as the August 2006 acquital shows, it would be difficult to demonstrate that you are the source of infection, instead of you both being infected with the same strain caught from someone else, for example. It is noticeable that virtually all of the people the convicted defendants were accused of infecting gave evidence that they did not have any other partners at the time.
Secondly, the Court of Appeal in the Dica case explicitly contrasted the situation of "casual sex between complete strangers .. when the attendant risks are known to be higher" and "sexual intercourse between couples in a long-term and loving, and trusting relationship" where they expected a higher burden of honesty and care.
This aspect was not addressed by the Konzani appeal, but it is difficult to see a court deciding that an escort-client relationship was one of the latter rather than the former. Anyone booking an escort knows that the escort has probably recently had sex with a large number of men, for example.
Want to know more about the issues?
There's much more at THT's main site, with several pages on the cases so far, more on the legal and health promotion issues involved and links to other relevant sites. You can also call THT Direct on 0845 12 21 200.
Sigma Research have also produced an excellent briefing paper on this issue. Published in October 2005, it covers events up to August that year and thus does not include anything since then (including subsequent cases and the refusal of the House of Lords to hear an appeal in the Dica case). With that in mind, it is highly recommended reading.
It can be downloaded here (PDF file, 372k bytes long) or from Sigma Research's own website.
Finally
If you want to be sure that the person you’re having sex with can’t pass anything on to you (nor you pass anything to them), then use a condom. You are responsible for your own sexual health; don’t expect someone else to take that responsibility for you.
If you're a male or transgender escort or sex worker, don't forget that you can get free condoms from us.
Comments? Queries?
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