February 2005:

HIV and Criminalisation

Last year three men were prosecuted for knowingly infecting other people with HIV. The media coverage highlighted a lack of clarity in policy concerning the criminal law and HIV.

Presenters:

Abstract:

CRIMINAL LAW AND THE TRANSMISSION OF HIV – A BRIEF GUIDE TO THE PRESENT LAW IN ENGLAND AND WALES.

By Dr. Matthew Weait

A person (call them x) who transmits HIV to another person (call them Y) may be guilty of a criminal offence. Before any criminal offence can be committed it must be established that X caused Y’s infection. This is something that can only be established by scientific evidence where it is disputed. The use of such scientific evidence in HIV transmission cases is relatively novel, certainly in England and Wales. The obvious analogue is in cases where DNA evidence has been used, in for example, rape cases. Although DNA evidence can be very persuasive, the only certain thing it can establish is that a person was NOT the person concerned.

Assuming that causation is not disputed, there are two potential offences that can be committed by X. One is that s/he intentionally caused serious bodily harm to Y, and the other is that s/he recklessly caused such harm to Y.

The offence of intentionally causing serious bodily harm is charged under section 18 of the Offences Against the Persons Act 1861 (OAPA), and would be extremely difficult to prove if charged (unless HIV was used as a weapon – in a syringe of infected blood, for example). The maximum sentence if convicted of this offence is life imprisonment, though sentences are usually much shorter than this (5-10 years is the usual range in the more casual cases).

The offence of recklessly causing serious bodily harm is charged under section 20 of the OAPA. The law says that a person is reckless if they are aware of the risk of causing some harm to the person at the time they caused the consequence (i.e. infection). There is some legal dispute about whether a person can be reckless when s/he is aware of the possibility that s/he may be. The Court of Appeal in the Dica case appeared to indicate that a person can only be reckless when s/he knows her/his status.

DEFENCES

It will also be an effective defence if it is established that Y consented to the risk of transmission at the relevant time. It has been suggested by some that the Dica decision imposes a positive duty of disclosure on HIV positive people before they have sec which carries the risk of transmission. The Court of Appeal in Dica did not go this far. What it held, and it is important to emphasise this, is that there is no criminal liability where the person to who HIV transmitted consented to the risk of transmission. This may be difficult to establish in practice in the absence of disclosure of know HIV positive status, but not impossible. For example, in the context of sex between two adult men who are both aware of the risks associated with unprotected sex, a decision to have such sex without discussion may be taken to entail consent to the risk. It might be different where X lies to Y in response to a question about HIV status (or, put more practically, where a jury does not believe that disclosure has been made, or believe that X lied to Y despite any claim to the contrary by him/her).

Supporting people dealing with HIV Criminalisation.

By Chris Morley

Stigma and discrimination impact:

• 1 in 5 people with HIV already experience discrimination in a year.

•  2 out of 3 get no help with stigma and discrimination problems.

•  But 2 out of 3 want help.

source: What do you need? Peter Weatherburn, Sigma Research, July 2002

• Fear of stigna greater among Black Africans

• Fear delays people from seeking help

source: Social Exclusion and HIV, Terrence Higgins Trust, 2002

Public Health impacts:

• Criminalisation ramps up public stigma – nasty stigmatising press coverage.

• Whatever our views about the rights and wrongs of criminalisation, any criminal law has unintended public health consequences

• Some actions can be morally wrong but this does not mean they should be crimes (adultery may be morally wrong - but is not made a crime)

Effects on public health of criminalising transmission:

• Less testing (thinking: if you don’t know you are positive, you can’t be prosecuted)

• Less testing: but unprotected sex by untested people with HIV makes transmissions even more likely

National Strategy for HIV and SH

• Target - to cut annual numbers newly infected by 25%, by 2007

             But HIV is still rising at 20% a year

• Testing provides the key opportunity to:

• encourage disclosure before sex,

• reduce transmission risks,

• egotiate condom use, and

• it provides access to effective and timely treatments

• Safer sex is a joint responsibility but criminalisation transfers all legal responsibility onto HIV+ people

• Criminalisation creates expectation of being told about HIV by all positive partners.

• Criminalisation creates a false sense of safety in HIV negative people.

Conclusion

Criminalisation risks significantly worsening public health

Policing sex or supporting people:

• Should the state provide “tough love” and punish people for reckless or deliberate transmission of STIs and HIV?                

or

• Support people to make choices that may be safer?

Which works better?

• A remote chance of getting caught doesn’t change people’s behaviour

• No evidence from mainland Europe that use of criminal law reduces HIV transmissions

But early testing, treatment and support does reduce transmissions

• Better to stick with what works and avoid worsening a bad situation

Supporting both sides:

• HIV organisations need to provide support even when this seems difficult: without discrimination or cherry-picking.

• Be ready to support both sides:

• support the person complaining about getting infected

• support the person charged

• Some ways of working with both sides:

• use different staff

• refer second person who asks to another agency

• set boundaries: clearly say what you will and will not do for each (e.g. no support with actually making the complaints)

• make referrals for support needs you cannot meet

• seek advice from more experienced organisations

Stigma in the NHS?:

• The consultant in the Middlesbrough case gave evidence for the prosecution despite medical ethics and patient confidentiality

• Consultant at Burton on Trent and the Health Protection Agency tried to get a court injunction to stop a man from having any sex without condoms. If he had disobeyed he could have been jailed.

• The HPA abandoned this new legal strategy  

Some mainland Europe lessons:

• In some EU states, sex without condoms is enough to get you jailed – even when no-one gets infected

• Prosecutions over the last 10 years in Sweden have discouraged people from testing there but the European Ct of Human Rights has just ruled that the policy of hospital detention to prevent HIV transmission is disproportionate

George House Trust Position:

• GHT opposes all criminal action and laws against people with HIV for either reckless or deliberate transmission of HIV or other STIs as a matter of principle

and because

• the unintended public health consequences are too high a price to pay

People with HIV’s views:

• The views of people with HIV are rarely heard.

• The views of black Africans with HIV in particularly are missing.

George House Trust Position:

The main UK HIV organisations now have various policy positions – but most have no formal policy yet.

• Some believe deliberate transmission should be a crime

• Some think lying and deception about HIV status should be a crime