As of Autumn 2005, there have only been five successful prosecutions in England and Wales, and two in Scotland (under a slightly different law).Because the law is currently confused and there is, as yet, no guidance from the Crown Prosecution Service (CPS) on what should be prosecuted, we have to base our advice on the decisions made in those cases and this advice may change in the light of future appeals and other cases.
But, as best as THT can currently tell, someone with HIV is only likely to be prosecuted if:
·Their sexual partner doesn’t know they have HIV
oand they don’t tell them
oand they don’t use a condom for all and any penetrative sex
oand their partner becomes infected as a direct result
oand that partner decides to make a complaint to the police.
Strictly speaking, someone could theoretically be prosecuted for any sex that results in transmission of HIV where they did not explicitly disclose a positive status in advance; however, it is likely that consistent condom use would be a reasonable defence.
If this changes in any way, THT will put out changed advice.We hope to get guidance from the CPS within the next few months, which will clarify the situation.
Disclosure to sexual partners
Some people have said that people with HIV must disclose their HIV status to all sexual partners, whether or not they have safer sex. This is based upon a strict interpretation (see above) of one piece of guidance by a judge. THT thinks that this is unrealistic and also thinks that the CPS would be very unlikely to take forward a case where the defendant had clearly tried to avoid risk by using condoms consistently.
Condom breakage during sex
Prosecutions have only taken place where HIV has been transmitted, not simply for having sex.So, if someone with HIV has any reason to believe that transmission could have happened (for instance, if a condom breaks during sex) when they had not previously disclosed, then in order to ensure safety for both parties they should tell their partner they have HIV and advise them to get PEP (post-exposure prophylaxis) immediately in order to prevent possible transmission.
Expectations of disclosure
Many people who know or believe they are HIV negative have an expectation that someone with HIV will automatically disclose their status without being asked. This is unwarranted.Also, while you can ask if someone has HIV, there is no guarantee that the answer they give will be accurate.
The answer “no” could mean any of the following:
No, because I was tested last week and haven’t had sex since before the “window period”
I don’t think so, because I tested last year. I’ve only had unprotected sex with a few people since then
No, because I don’t feel ill and I’d know if I had it, wouldn’t I?
I have no idea, but don’t be nosy
Actually I do have HIV, but if I tell you that, you won’t sleep with me, will you?
If someone wants to be sure that the person they’re having sex with can’t pass anything on (and nor can they), then they should use a condom.
Everyone is responsible for their own sexual health; don’t expect someone else to take that responsibility for you.
Persons thinking of making a complaint
Making a complaint to the police is a very serious matter, and someone may ask for help.It’s important that it is not something done in the heat of the moment or while someone is upset – which is generally true for someone who’s just been newly diagnosed. The person may need support to think through what the consequences might be before they make a decision either way.
Issues that may get raised include:
Is it really them who wants to make the complaint, or is someone else (e.g. a friend or a clinic worker) pushing them to do so?It’s important that they make their own mind up and understand what it will mean.Making a police complaint is unlikely to make someone feel any better about having HIV, and it may take over their life for a very long time – cases can take years to be resolved.
The prosecution of a long term partner may enable family or workmates to identify the complainant, and thus find out they are living with HIV; would this be a problem?
Investigations and a court case will go over all parties’ love life and medical history in close detail. Are they sure they want or can cope with that?
If someone has known (or suspected) that they have had HIV for a while, but only made a complaint when the relationship with the person they think infected them broke up, is this about getting HIV or is it anger for being left? This could also be used in court.
Are they really sure that they got HIV from that particular person?If they assume it was their last partner, but actually they already had it from a previous one, it could end up with a very messy failed police investigation, or even charges against them if they had passed it on themselves
Is the complaint going to do anything positive to help them cope with their new status, or will it become something that won’t let them put HIV in its place and get on with the rest of their life?
Enquiries by people who have had unprotected sex with someone with HIV
Sometimes someone is not thinking of prosecuting, but just exploring the matter.Some of the issues that may arise include:
Does the person they had sex with definitely have HIV, or have they just heard it as gossip?
Did they have the kind of sex that might cause HIV transmission, and what is the likelihood of transmission in any single act of sex?
When did this happen, and could they still benefit from PEP (within 72 hours of the encounter)?
Was this a one-off encounter, or have they had risky sex with other people without knowing their HIV status, on the assumption that anyone positive would say so?
When was the last time they had a sexual health check themselves?
Persons facing prosecution
If someone is told that they have been reported to the police, or police have begun to make enquiries, they should immediately obtain legal advice, preferably from a solicitor experienced in this area of the criminal law.THT Direct can make referrals to solicitors.
If someone has been invited to attend at the police station, it is important that they take a solicitor with them, or get advice in advance about their rights.
Because this is a new area of law, a number of initial investigations have been inappropriately conducted, or based upon a very faulty understanding of HIV.It is important for any agency supporting someone in this situation to get advice as early as possible from people in the HIV sector who have had direct experience of these cases, such as THT’s or George House Trust in Manchester’s policy staff.
Fear of false accusations
This is a very common fear at present for people with HIV, because these cases are on everyone’s mind.But it would already be easy for anyone with whom you had sex to turn round and make a rape accusation (much easier, in fact, than an HIV accusation, which requires transmission) and yet most people don’t worry about that when they consider going to bed with someone.It might happen but it’s extremely unlikely, and the likelihood is even lower provided the advice above is followed.
If someone has strong reasons not to trust a particular person they’re thinking of having sex with, maybe they should choose someone else.
If an accusation is made by someone with whom the accused has not had sex, then the matter will usually be cleared up by the blood tests both parties to all such cases are required to take, which checks whether their “viral type” is the same.
The responsibilities of clinical and social care workers
Many HIV workers, including doctors, are concerned about whether their duties and responsibilities have changed because of the prosecutions.If you are a doctor, or working in a clinic, the General Medical Council has guidelines which cover this and if those are adhered to, they should not be subject to a complaint of any kind.If in doubt, they should talk to someone from the British Association for Sexual Health & HIV (BASHH) or the British HIV Association (BHIVA).
If someone is a counsellor accredited to the British Association for Counselling, again they have professional guidelines.If they are counselling in any other type of situation, they should consult THT’s Head of Counselling.
If they are neither of these, then there is no existing external guidance on which to fall back.However, if an organisation has a clear written Confidentiality Policy and the worker acts in a way that encourages minimisation of harm and promotion of safer sex, it is highly unlikely that they could be in any way held liable for someone else’s sexual behaviour.It is important, though, to give people as accurate advice as possible about the risks they may be running themselves.
Any organisation which keeps records on its clients or service users should examine what data they keep and whether it is appropriate or needed.They should also get legal advice in advaice about what to do if approached by police or someone’s lawyers about access to their records.
This advice was last revised in October 2005 for THT.Anyone else is welcome to adapt it for use elsewhere, but please retain the date stamp and check to see whether there have been further legal moves subsequently which could affect the advice given.
plus|v|e acknowledges the assistance of the Terrence Higgins Trust in the writing of these articles, although it is clearly stated that some of this information may have been superceeded by new information.
