BEING HIV POSITIVE IS ALREADY A SENTENCE. NOW YOU CAN GET ANOTHER BY PASSING IT ON
BEING DIAGNOSED AS HIV-POSITIVE IS ONE OF THE HARDEST THINGS ANY PERSON COULD GO THROUGH.
To know that your life has altered forever with very little that can be done to reverse the diagnosis; to have to consider your own mortality at an earlier age than normal; to decide whether or not to tell family or loved ones of your diagnosis; to consider the possibility of a future alone.
All of these thoughts – and perhaps many more – will, at some stage, go through the mind of a person diagnosed HIV-positive at some stage.It is a very hard diagnosis to bear and despite many people’s mistaken belief that HIV is “just like diabetes”, HIV is still heavily stigmatised.
Yes, like diabetes we have drugs that help us to control the early onset of AIDS.
Yes, like diabetes it is more difficult to tell if a person is, in fact, HIV-positive.
But diabetics are not stigmatised by society to the extent that HIV-positive people still are.Whether it be in the workplace (admittedly, due to the efforts of organisations such as Positively Women, The National AIDS Trust, The Terrence Higgins Trust or The UK Coalition of People Living with HIV/AIDS this stigma is less pronounced), your sexual orientation, the colour of your skin or the country in which you were born, stigma and discrimination around HIV is still there and is still as ugly in 2007 as it was in the early 1980s.
As if that was not enough to deal with, in the UK (or would it be politically correct to say in England, Scotland and Wales – I never know these days!) you can now go to prison if you “knowingly infect” another person with HIV.
And it is not just in the UK (I will continue to use this term for the time being) that these prosecutions are becoming increasingly common.Other European countries are starting to enact similar legislation that, at best will undo all the work of the previous 20 or so years in recognising HIV as a disease that is relentless and totally unconcerned with gender, sexual orientation or nationality, and at worst will lead to an undiagnosed population of HIV-positive individuals that could conceivably number in the millions.
The reason I make that last statement is important.If a person does not take an HIV test then they cannot be accused of knowingly passing on HIV.After all, if a person does not know they have the virus then they don’t know if they are passing it on and therefore cannot be prosecuted.
And that is the particular nightmare that we potentially face in the light of this ill-conceived piece of legislation.
Like the United States of America, Britain has become enamoured by the “suing culture”.Why take the blame yourself if you can possibly blame someone else, and along the way may be entitled to more than a couple of thousand pounds in compensation.
It is a road that, now we have started down it, will be difficult to reverse back up.And let us take a minute to consider the “punishment” that these HIV-positive people that are convicted face.
The UK prison network is overcrowded and already at breaking point.They are ill equipped to handle prisoners with complex medical needs.As our own work within the prison system consistently showed, standards of care for HIV-Positive people were erratic, with no one standard between different prisons in any part of the country.The medical professionals within the service were as dedicated and professional as any I have had the pleasure to meet, but staff turnover is extremely high and knowledge of HIV (or other viral illnesses) is extremely fractured.
Add in the cost of keeping one person in prison per year (Conflicting reports vary this cost between an average of £27,320 per year (http://www.prisonworks.org/2006/04/prison_works.html) to an average of £36,000 per year (http://www.crimeinfo.org.uk/topicofthemonth/index.jsp) to keep someone in prison) and trips out to their consulting physician every three months (no figures readily available) and factor in their HIV medication costs (the median duration of first-line treatment was seven years, costing approximately £112,000 per patient and that second- and third-line therapy each lasted for a median of four years each costing in the region of £70,000 (Source: http://www.aidsmap.com/en/news/108F8C52-7D94-40FA-87E9-34EB58A67005.asp)) and economically it makes little sense to be pursuing this line of prosecution.
This legislation is also open to abuse by people who have broken up from a relationship and, in the heat of anger and hurt, may make a complaint to the authorities that begin a criminal prosecution.Once started, it is extremely hard to stop criminal proceedings and the person making the complaint could also face prosecution.
A number of UK organisations have taken on the challenge of dissecting this law and advising people on the ramifications of pursuing a criminal prosecution so a number of information providers have also covered this issue in the past two years and we would be remiss if we didn’t cover the same ground, but we are not here to pass on advice, rather to highlight the relevant considerations a person must take before they consider instigating a criminal proceeding.
In researching this article, I came across many features and information sources that will be signposted throughout this article.What I have attempted to do is consolidate their advice to the accuser and the accused.
The law regarding this issue is far from settled. What holds true now may change with later trials.This is why it is important to be regularly updated about the current state of play.To date prosecutions have provided judgements on a range of legal complexities.
'Intentional' vs. 'reckless'
A continuing debate among health promoters centres on whether prosecutions should be entertained under any circumstance.Some, such as George House Trust in Manchester, campaign for absolutely no prosecutions whatever the circumstances.Others, such as Terrence Higgins Trust, UK Coalition of People Living with HIV and AIDS and National AIDS Trust concede that, while 'reckless' transmission of HIV should not be a crime, 'intentional' transmission could be (e.g. if someone was to attack another with a syringe of contaminated blood).The distinction between intentional and reckless transmission is important for anyone campaigning around this issue or advising people with HIV.
In England, Wales and Northern Ireland (the charge under Scottish law is slightly different), prosecutions for transmitting HIV fall under the 1861 Offences against the Person Act.Section 18 of the act covers intentional grievous bodily harm (GBH), and section 20 deals with reckless GBH.
In law, intentional transmission involves a clearly deliberate, premeditated plan or desire to cause harm.It requires a high burden of proof to secure a conviction.However if such a case does come to court, the maximum sentence will be life imprisonment.
Reckless transmission on the other hand involves carelessness or lack of action to avoid causing harm.It requires a lower burden of proof to achieve a guilty verdict.
Following recent court cases it has now been established that sexual transmission of HIV can clearly count as reckless transmission.All prosecutions so far have been for causing reckless, not intentional harm.The maximum sentence is five years in prison for each person infected.
What constitutes the crime?
The law is still not clear, but it seems likely that the following need to have taken place for a prosecution to happen:
A person with HIV does not tell their sexual partner that they have HIV;
Condoms are not used consistently during vaginal or anal sex;
As a result, the sexual partner is infected;
The sexual partner complains to the police.
Where does responsibility lie?
Since the HIV epidemic began, a key element in HIV prevention has been raising awareness about where responsibility lies for stopping the transmission of HIV.A consensus existed amongst health promoters, with one or both of the following messages promoted:
The uninfected should be responsible for protecting their own health.
Both HIV negative and positive partners shared responsibility for preventing HIV transmission.
The one message never promoted was 'people with HIV are solely responsible for stopping HIV being passed on.'Yet the law has now intervened and said precisely that: only those with HIV are legally accountable.
Who is being prosecuted?
It is revealing to look at the profile of the individuals who have faced charges.While cases so far have frequently been of African heterosexual male migrants, cases are currently being prepared against a diversity of individuals - male, female, those born in the UK, asylum seekers, migrant workers, black, white, heterosexual and homosexual.The first prosecutions of gay men are expected before the end of 2005.
The way forward: Lessons for HIV organisations
Some campaigners continue to lobby, in the interest of public health, for an end to all trials involving HIV transmission.The reality, however, is that prosecutions are taking place.For organisations working with people with HIV, the challenges are many. In such a fast changing situation, keeping abreast of legal developments is crucial.
Staff and volunteers will need training to bring them up to speed.Policies on issues such as confidentiality and record keeping may need to be reviewed and publicised.
Organisations will need to consider how legal developments alter the information and support they offer to people with HIV over prevention and sex.They will need to consider how to support any people with HIV who face charges, or are worried about this prospect.
If a case does occur, advice should be sought from others who have worked on similar situations (contact the Policy and Public Affairs team at THT in London).
Organisations also need to decide how to deal with people with HIV who wish to press charges themselves.Organisations in France have faced a backlash because they defended those put on trial, but had not offered any support to those making the accusations.
The Crown Prosecution Service is being lobbied by HIV and public health organisations, urging a clarification and reform of the use of the law in connection with HIV transmission.
There is also a need for work with local police on their awareness of HIV and sexual health issues, as well as discussions with clinicians on their understanding of confidentiality guidelines.
Health promotion information will certainly need reviewing to take into account the new legal situation.The major challenge is to educate people about the new legal landscape, whilst increasing awareness that the reality of interpersonal relationships may be different to legal prescriptions.
As you have just read, the law is still very new and being applied in a number of different ways and no two cases have been alike.From the table below, you can see that the majority of cases have involved heterosexual transmission of HIV, but there are also two cases of homosexual transmission, one was found guilty and one was acquitted.
There is no right way or wrong way to look at this information.As THT so clearly states, the law has decided that the onus is on the person with HIV to disclose their status.If they don’t disclose then they can be prosecuted.The very fact that someone knows their HIV status leaves them open to prosecution (somewhere along the line) if they do not disclose to prospective sexual partners their HIV (or hepatitis C) status.
This is a very dangerous situation.We have heard of people refusing, point blank, to go for an HIV test because “if I don’t know my status then there is no way that I can be accused of knowingly passing on the virus and possibly ending up in prison”.
As I said earlier, if we proceed along this route, how long before the developed world encounters an HIV epidemic like Africa or Asia?Do we really want to be responsible for HIV taking a grip in countries where we have managed to contain the outbreak and successfully encouraged people to test so that the disease can be controlled?Policies such as this bring stigma and discrimination straight back to the top of the agenda for people deciding whether or not to test for HIV.The genie is out of the bottle and now it is OK to prosecute HIV- positive (and hepatitis C-positive) people.The only thing we are really doing is creating a society of distrust and apathy, where what isn’t known can’t be used against us in a Court of Law – until they change the law so that it can!
