The transmission of HIV is a criminal offence in England and Wales, under s.20 of the Offences Against the Person Act 1861, which criminalises the reckless infliction of grievous bodily harm, and this was upheld by the Court of Appeal in R v Dica. While sex is not the only way that HIV can be transmitted, the majority (if not all) the cases deal with HIV transmission through sex, making this a very sensitive area of the law.
Indeed, one of the difficulties with proving the transmission
of HIV from the defendant to the victim is just that: proving that the
defendant did indeed give the virus to the victim, and the victim didn’t get it
through some other act. The CPS advises that prosecutors pay detailed attention
to the scientific and/or medical evidence before them in helping to prove that
the virus was transmitted by the defendant – one way of doing this is a process
called phylogenetic analysis, which can demonstrate how closely related the HIV
strains are in samples taken from both the defendant and victim, although
aidsmap do stress that this process cannot create a definitive ‘match’, as HIV
is not unique to an individual in the same way that DNA samples or fingerprints
are. Perhaps most problematically, phylogenetic analysis cannot prove that transmission
occurred directly between two individuals, particularly when the two
individuals in question have engaged in risky behaviour with multiple others in
the ‘transmission network’, and so this analysis can only be used to support
other evidence, leading prosecutors to build a case based largely on
circumstantial evidence.
The first conviction in the UK of intentional infection
took place in 2017, and this is the case of Daryll Rowe, who was convicted of grievous
bodily harm in 2017 after intentionally infecting five men with HIV, and
attempting to infect five more. Rowe, a hairdresser, met up with men on Grindr
and embarked on what was called by prosecutors a ‘cynical campaign’ to infect
as many men as he could with HIV after he was diagnosed with the virus. After engaging
in unprotected sex, or sabotaging his own condoms, Rowe would then taunt his
victims, boasting that he was “riddled with diseases” and telling the men “you’re
gonna burn.”
For what is clearly such a heinous crime, when done
intentionally, there is perhaps surprisingly much debate as to whether the criminalisation
of HIV transmission is appropriate. It is worth noting at this point, HIV is
not the only sexually-transmitted infection that is criminalised – the case of R
v Golding also brought the transmission of genital herpes under the ambit of
s.20 OAPA. One reasonable complaint against the criminalisation of HIV transmission
in particular is the fact that the initial stages of the virus are asymptomatic
for a long period, often exceeding a year, meaning that a person who engages in
sexual activity or who donates blood during this period have no reason to
believe that they are transmitting a virus.
Another criticism of HIV transmission that is useful to take
in the wider context is the fact that laws criminalising the transmission of HIV
have a disproportionate impact on marginalised communities, namely the African
community, the LGBTQ+ community, and drug-users, who need support and healthcare
more than they need prosecution. Indeed, the stigma associated with HIV+ status
often leads to violence and social isolation, and prosecutions may be prompted
by jilted lovers who find out their partner has been unfaithful or using intravenous
drugs without their knowledge.
There is also a public health argument to be made on the
issue of criminalising HIV transmission. As the law in England and Wales requires
the transmission to be intentional or reckless (i.e. you must have reasonable
belief that you are HIV+), this may dissuade some individuals from being tested
regularly when engaging in risky behaviour, meaning that not only are they
transmitting HIV, but they are preventing themselves and others from getting a quick
diagnosis and treatment. Such arguments have led Ruth Lowbury, the executive
director of the Medical Foundation for AIDS and Sexual Health in London to argue
that criminal prosecutions for HIV transmission “threaten public health.”
Other academics, including Samantha Ryan (the guest on this
week’s podcast) and Chalmers have argued that criminalising risky behaviour serves
no purpose – Chalmers can be seen to describe it as ‘victim-blaming’, and Ryan
has written extensively on whether risk-taking should be criminalised, with
reference to the seriousness, social utility and likelihood of the risk. Ryan
even raises the question of whether the current law in England and Wales forces
celibacy on those who are HIV+ (and, presumably, those who are not undetectable),
as there is a “lack of clarity” on whether the use of condoms and other precautionary
measures negates the ‘recklessness’ required for a conviction.
One reason why the law is unhelpfully murky is because of
the number of guilty pleas entered by defendants, meaning the issue rarely comes
to the appellate courts for clarification, and this is perhaps demonstrative of
the negative social consequences of being ‘outed’ as HIV+, and the priority for
defendants charged with HIV transmission is to avoid a protracted trial which
may draw unwanted attention.
The law in England and Wales, and around the world, seems to be moving towards a more uniformed criminalisation of HIV transmission, and the one issue that has not been examined thus far in this post, and perhaps the most pressing issue of them all, is that of the victim: the individual who has been infected with HIV without their consent, and who is now having to live a different life because of the behaviour of the defendant. It appears that concern for the victim, and the need for justice, is the only weight in favour of the criminalisation of HIV, but as we get closer to a cure for the virus, HIV transmission is less likely to be of such concern, and, therefore, perhaps less likely to be criminalised.
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