Prosecutions

Who can be prosecuted?

If you have HIV and have unprotected sex but the other person doesn’t get HIV as a result then a crime has not been committed. A crime is only committed if the ‘unsafe sex’ leads to someone getting HIV. So, no infection equals no crime.

Anyone, regardless of sex, sexuality or ethnic background, who has HIV and has passed on the infection to someone else can be prosecuted. A range of people in the UK have been prosecuted so far, including African people and white heterosexuals, and two cases involving gay men are about to go to court.

A case can only be brought if the person who has become infected with HIV decides to press charges. An exception would be if they were under-age (under 16 years old) or had learning difficulties: then a parent, guardian or someone like a doctor or teacher could make a complaint to the police.

In a small number of cases where a person with HIV has been involved in a police investigation of an unrelated incident, the police have, on discovery of their HIV status, begun to investigate their sexual activities. If this happens to you, we strongly advise that you say nothing until you have been referred to an experienced solicitor by THT Direct (0845 12 21 200).

Reporting a crime

If you want to make a report to the police that someone gave you HIV then be sure it’s your decision to do this and there aren’t others who are urging you to involve the law. Once a charge is made it can be difficult to go back, even if you want to.

When a person is first diagnosed it can be a time of considerable stress, confusion and anger. With time those feelings and a wish to prosecute may change. Avoid going to the police in the heat of the moment soon after being diagnosed. Before you do anything, think it through by talking to someone in confidence. THT Direct can help you by discussing with you how you feel, what your options are and what making a complaint to the police and taking legal action can involve.

If your partner doesn’t know you have HIV and a counsellor or medical staff thinks you’re putting them at risk, they can tell your partner about the risk you’re putting them at. Counsellors and medical staff have professional guidelines that restrict them from passing on information to people like the police (except in very exceptional circumstances).

Being accused of passing on HIV

If you are being accused of passing on HIV then you can talk to someone at THT Direct, who will be able to refer you to an experienced solicitor. They will have details of what you can do, and be able to give you the relevant legal advice. Do not sign anything that medical staff or others might give you that would remove your right to confidentiality around things like medical records. Get advice from a solicitor before signing anything. Keep in touch with THT or another HIV organisation for ongoing advice and support.

Proving a crime has been committed

As in rape cases it is often just one person’s word against another, as who can really know what was or wasn’t said? By taking blood samples from both people involved, it is possible to have a very good idea which person an infection came from. If the test shows that both parties have a virus that is the same or very similar this is a good indication one of them infected the other, although it can’t be 100% certain and it could be that both people were infected by the same third person. This type of test can be used as evidence in a court to help a jury decide their verdict.

A court order can force someone to take the necessary test. Also, medical records and testing history can be used as evidence to help show who got HIV first and who gave the infection to whom.

If an HIV test shows the virus did not come from a certain person, then this is 100% reliable and there can be no prosecution.

The court case and your identity

If you are the person accusing someone your name will not appear in the media but it is extremely likely your identity will become known. You may have to give evidence in court, or details discussed in court may make it easy to work out who the people involved are, especially if the person on trial was known to be your partner. Although the media are not allowed to reveal who you are, others, such as witnesses, the person being charged, or journalists, may cause your identity to become known.

If you are the person being prosecuted your identity is not automatically protected at all, even if you are found not guilty. Your solicitor may be able to seek an order to protect you and your family’s identity if you have children.