Criminal prosecution for HIV transmission
Authors: Ruth Lowbury, George R Kinghorn
Journal: BMJ (2006)

The Crown Prosecution Service for England and Wales has issued, for public consultation, new guidance on criminal prosecution for the “sexual transmission of infections which cause grievous bodily harm.”1 It is likely to be used mostly in relation to HIV. Although this attempt to introduce standardised criteria for prosecutions is welcome, we have serious concerns about the public health impact of using the law to criminalise disease transmission.

People infected with HIV who are taking antiretroviral treatment are able to live relatively healthy lives, but those whose infection remains undiagnosed still face serious illness and death. There has never been a stronger imperative to encourage individuals at risk to come forward for testing so they can access treatment. In the face of a rapidly rising prevalence of HIV infection, there is an equally strong imperative for preventing transmission. This includes support for those infected, helping them work out how to avoid exposing their sexual partners to infection and dealing with the challenges this may involve.

The government has made it a policy priority to increase uptake of HIV testing2,3 and is funding prevention programmes in England for the population groups most at risk. Services around the country offer voluntary testing, confidential partner notification, and education and support for affected individuals and their partners. Crucially, these measures rely on a relationship of trust and confidence between patients and healthcare professionals.

The sustainability and success of this approach are threatened by the policy of criminal prosecution. While those living with HIV infection or at risk of infection have had many reasons to be fearful about the impact of HIV, the possibility of appearing in a court of law followed by imprisonment had not until recently been one of them. However, 2001 saw the first successful prosecution in Scotland for “reckless injury,” followed by some in England and Wales for “reckless transmission” of HIV, under the 1861 Offences Against the Person Act. According to the Terrence Higgins Trust, more cases are in the pipeline.

Already there are indications that this use of the criminal law is having unintended negative consequences. Awareness is spreading among those infected with HIV that they face the threat of criminal prosecution. Media coverage has vilified those convicted as “AIDS assassins,” exacerbating the stigma already associated with infection. No wonder those unlucky enough to become infected often choose to keep their status a secret.

Individuals in this situation need help and support to plan how and to whom they will disclose their status, and to find strategies for protecting others from infection. With a spouse or long term partner, suddenly refusing to have sex or requiring the use of condoms without explanation is unlikely to be effective, but disclosure of HIV status may lead to rejection, physical violence, and financial destitution. If word gets out into the community, perhaps through a sexual partner, individuals with HIV risk being ostracised, with their families taunted and their employment and entire existence under threat. Health professionals can advise and assist, but their patients, if fearful of prosecution, may be unwilling even to tell them if they are having difficulties avoiding unprotected sex.4

An estimated 20 000 people in the United Kingdom have HIV infection that is still undiagnosed.5 There is a clear disincentive to testing when prosecution relies on defendants knowing they are infected. Meanwhile, those who do take the test may not agree to their partners being notified for fear of legal repercussions, thereby jeopardising essential public health control efforts. In addition, the threat to the confidentiality of data posed by criminal investigations may deter participation (or honesty) in the sexual behaviour research which provides an essential evidence base for HIV prevention.

Doctors need guidance on whether the potential for criminal prosecutions changes their legal and ethical duty of confidentiality, and how to advise their HIV positive patients, who may become “victims” or “defendants” if a prosecution occurs. A briefing paper to inform clinicians is in preparation, a draft of which can be obtained from the British HIV Association.6

Research evidence on the public health impact of criminal prosecutions for reckless transmission of HIV is limited,7 and there is an urgent need for further research. Rates of uptake of HIV testing in groups at highest risk should be monitored to see whether criminalisation may be leading to reductions.

In the short term, there is the opportunity to respond to the Crown Prosecution Service consultation. The draft guidance includes advice on how to apply the Code for Crown Prosecutors, which states that a prosecution will usually take place “unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour.” Putting aside the difficulties in attributing who infected whom, we would argue that, in the case of criminal prosecution for reckless transmission of HIV, the public interest is not best served by pursuing justice against the few at the expense of the health of the many.