Criminal Prosecution for Transmission of HIV

The current position

July 2006 – THT Policy Division

What’s the charge?

• Offences Against The Person Act (1861)• Grievous Bodily Harm (used for all kinds of

assault or harm)• Section 18 (intentional: up to life sentence) or

Section 20 (reckless: up to 5 years)• Judges can also order deportation after prison for

migrants; case under consideration currently• All prosecutions so far for reckless transmission

What’s the difference?

• “Intent” means you intended to harm – difficult to prove unless statement of intent

• Reckless simply means you didn’t take care whether you transmitted or not

• Recklessness far easier to prove; you only need proof of transmission and no disclosure of status

• Much of media coverage calls cases “deliberate” when only charged as reckless

Is this just about HIV and sex?

• All successful UK prosecutions so far for HIV• Law doesn’t specify HIV or STIs, only “serious harm”• Prosecution taken (2002/3) for passing herpes;

abandoned due to lack of proof, not wrongness of charge

• Could theoretically be used for any condition that causes long term or serious harm

• CPS only considering sexual transmission currently, but unclear what could be (theoretically) prosecuted

• Stigma means that HIV is most likely/frequent target – all current known investigations include it

Who is being prosecuted?

• All cases so far required a complaint from someone infected BUT police are starting to trawl for “victims”

• All successful prosecutions so far heterosexual, but at least three gay ones in pipeline

• Wide variety of complaints under investigation, in wide variety of situations – no clear pattern of “hard cases”

• Wide variety of police & CPS practices in investigating and charging

• Anyone found to be positive in other investigations at risk of sudden police interest re: onward transmission

Implications of judgements so far

• PWHIV responsible for disclosure; no disclosure risks a charge if transmission

• Consistent condom use may be a defence, but unclear as yet (and not seen as such by police currently)

• Test or knowledge of status likely to be a requirement in future

• Prosecution only likely where:– No disclosure– No/inconsistent use of condom/safer sex– Transmission occurs– Infected person makes a complaint

Confidentiality & disclosure

• Many clinicians concerned re obligations• Importance of understanding GMC guidance• No obligation to approach police• Medical records should only be handed over with

“informed consent” of patient or by court order• Discussion in staff teams recommended• Review of promises to patients re confidentiality

recommended• Consider how best to manage safer sex work and

STI diagnosis and management with PWHIV in these circumstances

Miscarriage of justice – experience so far

• Accusations in revenge for ending a relationship• Some newly diagnosed people encouraged to

complain while in state of shock re: diagnosis• Accusations made as defence by people facing

violence charges • Very poor advice by inexperienced solicitors• Poor practice by uninformed/inexperienced police• Poor practice by local CPS staff despite central

advice• Sentencing disproportionate through lack of HIV

knowledge in judiciary• Attempted deportation to countries without

treatment access at end of sentence for some

What are THT and others doing?

• Working to inform PWHIV of the situation and support them

• Working to ensure others don’t assume disclosure in sexual situations

• Providing advice to PWHIV, clinicians and other support organisations, particularly on disclosure & confidentiality and on advice to newly diagnosed

• Providing advice to solicitors and other involved parties

• Collecting case studies and other research• Maintaining website information and updates for all

What can you do?

• CPS consultation later this month• Spread the word about what’s happening• Let THT Policy Team know of all and any police

investigations• Ensure your team is well informed• Work with your local police liaison team to

– improve understanding of the realities of HIV transmission

– encourage them to talk to you if a case happens– Minimise HIV prejudice and be able to challenge

poor practice

Contacts

lisa.power@tht.org.uk

www.tht.org.uk/prosecutions