HIV and the Law

Introduction
What the law says
Crown Prosecution Service Policy Statement
Who can be prosecuted?
Important things to remember
Frequently asked questions

Introduction

The information provided on this website is for information only and is not to be used as a substitute for obtaining specific legal and professional advice on any specific issue.

Research in the UK shows that the majority of people diagnosed with HIV are very concerned that they do not infect others. However, recent high profile cases in the UK have focused attention on the sexual behaviour of people living with HIV and the possibility of criminal prosecution of a person living with HIV who infects another person.

It is therefore important that people living with HIV have a good understanding of the law. However, as it has only recently become established in law that it is a crime to transmit HIV to someone else, the legal situation is not yet clear and you are strongly advised to keep up-to-date with developments.

We recommend that you contact the legal departments of the National AIDS Trust or the Terrence Higgins Trust for more detailed information and advice on the law relating to HIV/AIDS.

Contact details and more information can be found on thier websites:
National AIDS Trust
Terrence Higgins Trust

What the law says

Recent court cases in England, Wales and Scotland have established that it is a crime to transmit HIV to someone else, although the legal situation is not clear. As more cases come before the courts the legal situation could change. This is why it is important to keep up-to-date with developments.

In Scotland people risk prosecution for ’reckless injury’. In England and Wales people are charged with ’recklessly inflicting grievous bodily harm’ due to transmission of HIV under section 20 of the Offences against the Person Act 1861.

Charges of ’intentional’ sexual transmission require a heavier burden of proof for a conviction compared to that for ’reckless’ transmission. Charges of ’intentional’ transmission are therefore unlikely as sex would be a very ineffective method of passing on HIV if someone was really intent on doing so.

To secure a guilty verdict of ’reckless’ transmission the prosecution has to prove that:

the person with HIV did in fact infect their partner
the person with HIV was (or should have been) aware of the risk of transmission
the person who became infected did not explicitly give informed consent to sex with an individual they knew had HIV.

In legal terms ’reckless’ means the person with HIV was careless before sex because they did not say they had HIV (or they lied), or during sex because they did not use a condom.

The prosecution does not have to prove that they intended to infect their partner with HIV. Rather they have to prove that they are guilty of not trying to stop it happening.

It can only be ’grievous bodily harm’ if someone is actually infected with HIV following sex. If HIV is not transmitted, no crime has been committed.

The penalty for ’reckless grievous bodily harm’ is a maximum prison sentence of five years for each person someone is found guilty of infecting. There is no minimum sentence.

Between 2001 and 2008 there were 16 prosecutions in the UK for transmitting HIV during unprotected sex. The majority of these prosecutions have resulted in prison sentences ranging from two to ten years. You should be aware that such prosecutions are rare unless there are compelling circumstances. No prosecutions have been brought where transmission has not occurred.

In one case the defendant had never had an HIV test, but it was judged that he ought to have known or suspected that he had HIV.

In a number of cases, analysis of virus samples from the complainant and defendant was used to ’prove’ that the defendant infected the complainant. However, it was established in one case that such analysis is incapable of proving conclusively that one party infected the other and the defendant was acquitted. However, where, strains are different, analysis can prove conclusively that one party did not infect the other.

Crown Prosecution Service Policy Statement

The Crown Prosecution Service has recently released a Policy Statement and Guidance on Prosecuting Intentional or Reckless Sexual Transmission of infection. Useful summaries and comment can be found on:
The NAT website
The NAM website

Who can be prosecuted?

A crime is only committed if the ’unsafe sex’ results in someone being infected with HIV. If HIV is not transmitted, there is no crime.

Anyone, regardless of their sex, sexuality, or ethnic background, who has HIV themselves and has passed it on to someone else, can be prosecuted.

A case can only be brought if the person who has been infected with HIV decides to press charges. However, an exception could be if the person infected was under 16 years old or had learning difficulties: in these cases a parent, guardian or a professional like a doctor or teacher could make a complaint to the police.

Terrence Higgins Trust also gives this advice for people living with HIV who are involved in an unrelated police investigation:

"In a small number of cases where a person with HIV has been involved in a police investigation of an unrelated incident, the police have, on discovery of their HIV status, begun to investigate their sexual activities. If this happens to you, we strongly advise that you say nothing until you have been referred to an experienced solicitor by THT Direct (0845 12 21 200)."

You should also be aware that a counsellor or medical staff can tell your sexual partner about the risk if you have not told them yourself that you are HIV positive and they think you are putting them at risk. However, counsellors and medical staff have strict guidelines that restrict them from passing on information to people like the police (except in very exceptional circumstances).

If you are being accused of passing on HIV it is important to get legal advice from an experienced lawyer straight away.

You should not sign anything that would remove your right to confidentiality around things like medical records. You should also keep in close touch with THT or ACET for ongoing advice and support.

Important things to remember

Although the law says responsibility for preventing HIV transmission lies with the person who is infected, it is unwise for uninfected people to believe they can always rely on their sexual partner for protection. Uninfected people still need to take responsibility for protecting their own health.
Many people who are infected do not know they have the virus, so they cannot tell the people they have sex with.
Those who do know will not always tell their partners, or use condoms.
Many people still do things that are not permitted by the law.
Condoms offer the greatest protection against infection if used correctly and consistently

Frequently asked questions

Q. Who is ’responsible’ for preventing HIV infections?

A. Although many people think the uninfected person is responsible for protecting their own health by practising ’safer sex’ and using condoms and that responsibility should be shared between two sexual partners, the law says that responsibility lies with the person who is living with HIV. If HIV is transmitted, it is the person with HIV who can be prosecuted.

Q. What can I do to avoid prosecution?

A. If you have HIV, telling sexual partners before sex that you have HIV and/ or using condoms every time you have anal or vaginal sex would be enough to protect you from prosecution.

If a condom breaks or comes off and you tell your partner you have HIV and also tell them about ’post exposure prophylaxis’ (PEP) this would also make a prosecution less likely, although this has not been tested in court. For more information about PEP click here.

Q. Can someone still bring a prosecution against me for transmission that happened in the past?

A. There is no time limit after which a case cannot be brought. It is possible to be prosecuted if you had unsafe sex years ago before anyone knew it was a crime to pass on HIV.

Q. Can I be prosecuted if I have never had an HIV test?

A. The law says you can be prosecuted if you ought to have known or suspected you had HIV. This is especially true if you are from a group with a high risk of being infected with HIV, such as African people, gay men, injecting drug users, haemophiliacs, and sex workers.

Q. If I tell my partner I have HIV and they decide to go ahead with unprotected sex and become infected as a result, can I still be prosecuted?

A. If you tell your partner that you have HIV and they decide to go ahead with unprotected sex and become infected as a result, you would not be prosecuted.

Q. I am on anti-HIV treatment and have been told I have an undetectable viral load; do I still have to use condoms and inform sexual partners that I have HIV to avoid prosecution?

A. Even with an undetectable viral load in the blood it is still possible to infect others. Therefore the risk of prosecution is still there. An undetectable viral load means that although you have quantities of virus in your bloods that are too low to measure, the virus is still there. Furthermore, levels of HIV in semen or vaginal fluids could be higher than levels in the blood.

Q. I have recently been diagnosed HIV positive. Should I make a report to the police?

A. Before making any decisions, it is important to think things through very carefully. Do not be pressurised by someone else into making a report. If you decide to go ahead you need to be sure that it is your decision. Once a charge has been made it can be difficult to withdraw it, even if you want to.

In any event, avoid making a decision when you are first diagnosed, which can be a time of considerable stress and confusion. You should think through the decision very carefully by talking to someone who can give you more information about what making a complaint to the police and taking legal action will involve. An ACET Support Worker can help you make your own decision in confidence. Alternatively, you can call THT Direct on 0845 1221 200 from 10 till 10 weekdays and from 12 till 6 weekends, and talk to someone in the UK.

Q. I am being accused of passing on HIV. What should I do?

A. If you are being accused of passing on HIV, you should contact ACET or talk to someone at THT Direct who will be able to refer you to an experienced solicitor. They will have details of what you can do, and be able to give you the relevant legal advice. On no account should you sign anything that medical staff or others might give you that would remove your right to confidentiality around things like medical records.

Continue to keep in touch with ACET for ongoing advice and support.

Last updated April 2010