Criminalisation of HIV Transmission

The legal situation regarding HIV transmission is confusing and ever-changing. Since 2003, four men have been tried in England and Wales for infecting someone with HIV, causing them �grievous bodily harm� under the Offences Against the Person Act 1861. Although around 80% of HIV transmissions in the UK occur as a result of sex between men, all of these cases involved male to female transmission.

In none of the cases was transmission found to be deliberate. Instead, the behaviour of the defendants was judged to be �reckless� and �unreasonable�. All of the defendants so far have been convicted (in the most famous case, involving Mohammed Dica, conviction came after protracted legal wranglings), with the average sentence being around three years per transmission.

These convictions would appear to go against government policy. In 2000 the Home Office published a consultation paper on the law relating to manslaughter, which stated that "only the intentional transmission of disease should be a criminal offence. �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 and hepatitis B and 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". However, English law is not only made by parliament; judges also do so with their rulings, and they have ignored this government policy.

Although the situation is still unclear, it would appear that a person living with HIV would only be likely to face a prosecution if:

• Their HIV+ status was not known by their sexual partner,
• AND they do not tell the partner,
• AND condoms are not used during sex,
• AND the partner becomes infected as a direct result,
• AND the partner decides to make a complaint to the police.

As the law surrounding HIV transmission is very complex and rapidly changing, we suggest anyone needing more information should seek out professional legal advice.