Details of our policy

THT's policy on prosecution is wide-ranging and includes calls for:

• putting public health first
• not singling HIV out from other blood-borne viruses
• dealing with deliberate deception
• supporting first, not prosecuting
• an understanding that imprisonment doesn't reduce transmission
• better education and information.

Find out more about these on this page and read our Call to action.

Putting public health first

In any sexual relationship, both partners have a responsibility towards their own health and that of each other. Where both partners are responsible adults, both should be able to participate in any decision about the kinds of sex they have.

It's clear that in the vast majority of cases of onward transmission, people with HIV do not intentionally transmit the virus onward. Where onward transmission does occur, it is often the result of a joint failure to choose safer sex. In these cases, THT does not believe it is in the interests of public health policy to pursue prosecution, since transmission should be considered the joint responsibility of both parties, not a matter for prosecution of one of them.

In public health terms, we believe that the need to encourage people to find out whether they have HIV, and the need to support people with HIV in maintaining safer sex, in often difficult circumstances, overrides the public interest in prosecution of individual acts of unsafe sex leading to transmission of HIV.

Don't single out HIV

THT does not believe that any prosecution policy or legal statute should single out HIV as a condition. If transmission of life-threatening, blood-borne viruses is to be prosecuted, then it should be all or none.

Where there is clear evidence that HIV, or any other serious blood-borne virus, has been used as a deliberate and intentional cause of harm, THT believes that this (intentional) transmission should be a prosecutable offence. THT does not believe that this stigmatises people with the virus.

Deception

THT is concerned that deliberate deception about someone's HIV status (that is, lying in answer to a direct question with the primary intent of obtaining unprotected sex) effectively negates the ability of the other partner to participate in what should be a joint decision for unsafe sex. However, under current English law, there appears to be no way of accepting that this behaviour could be criminal without opening the way to more general prosecution of reckless transmission, which THT believes would be in nobody's interests.

Support first, not prosecution

Criminal prosecution of HIV should always be a matter of last resort. There are many and complex reasons why people, whether they have HIV or not, may find it difficult to maintain safer sex at all times; relationships are complicated, and accidents can happen. It is vital that support is provided to people with HIV around managing disclosure in sexual situations, and that criminal proceedings do not stop someone with HIV coming forward for such support.

Imprisonment is not the answer

Imprisoning someone for transmission of HIV does not represent any potential reduction in the epidemic. Placing someone who has difficulty in maintaining safer sex, and has a sexually transmissible and potentially fatal condition, into a situation where they cannot access basic safer sex materials but may have little choice about sexual activity is potentially harmful both to themselves and to others. It may be liable to increase rather than decrease future infection rates. Therefore, where there are prosecutions, alternatives to imprisonment should be considered.

Better education and information

Discrimination against people with HIV needs to be eradicated, but this needs support, as does encouraging everyone to have safer sex. We need better public education to make sure that people realise that many people with HIV do not know they are infected, and that people with HIV or other blood-borne viruses may find it difficult to disclose this, for many reasons.

Our call to action

It is important that people with HIV are able to know what actions may or may not result in prosecution. The current situation is both unclear and untenable, in that prosecutions are being pursued on what appears to be a haphazard and discriminatory basis. We call upon the Government and the Crown Prosecution Service to meet with us, and with legal experts and people with HIV, to clarify and reform the law as it stands on HIV transmission. We also call upon them to cease to prosecute in circumstances where both parties were involved in a decision, without active deception, to participate in unprotected and therefore risky sex.