A guide to the law on criminal prosecutions

What the law says

Recent court cases in England, Wales and Scotland have seen criminal prosecutions of people for giving their sexual partners HIV. As it’s only recently become established in law that it’s a crime to give someone HIV, the legal situation is not clear. As more cases come before the courts the legal situation could change. That’s why it’s important to stay up-to-date with what’s going on. This website will be updated each time there are important developments.

The position nationally

In Scotland people risk prosecution for ‘reckless injury’. In England and Wales people are charged with ‘recklessly inflicting grievous bodily harm’ due to transmission of HIV under section 20 of the Offences Against the Person Act 1861.

Section 18 of the act covers ‘intentional grievous harm’, but despite innacurate media reports to the contary, no prosecutions have been successful under this offence. To secure a guilty verdict for ‘reckless grievous bodily harm’ the prosecution has to prove that:

• the person with HIV did in fact infect their partner
• the person with HIV was (or should have been) aware of the risk of transmission
• the person who became infected did not explicitly give informed consent to sex with an individual they knew had HIV.

The charge in England and Wales

The cases that have come before the courts in England in Wales have seen people charged with 'recklessly causing grievous bodily harm' (GBH) by giving someone HIV.

Definitions

In legal terms ‘reckless’ means the person with HIV was careless before sex because they did not say they had HIV (or lied), or during sex because they did not use a condom. They did not have to intend (really want or plan) for their sexual partner to get HIV. But they are guilty of not trying to stop it happening.

There can only be ‘grievous bodily harm’ if sex leads to someone getting HIV. No HIV transmission means no crime has been committed.

‘Reckless’ versus ‘intentional’ transmission

The old debate about ‘reckless’ versus ‘intentional’ transmission is now largely irrelevant in terms of prosecutions. Although inaccurate media reporting of recent cases may have given the wrong impression, in fact all recent cases and convictions have involved charges of ‘reckless’ transmission. Charges of ‘intentional’ sexual transmission are almost certain not to be brought as they require a heavier burden of proof for a conviction compared to that for ‘reckless’ transmission. Part of the reason for this is the fact it is relatively unlikely that sex will lead to HIV infection: sex would be a very ineffective method of passing on HIV if someone was really intent on doing so.

While charges of either ‘reckless’ or ‘intentional’ grievous bodily harm could in theory be brought in the context of sexual transmission of HIV, the latter is unlikely. However, cases of ‘intentional grievous bodily harm’ in a non-sexual context may one day come before a court; for example, someone attacking others with a syringe of HIV-infected blood.

The punishment

The penalty for ‘reckless grievous bodily harm’ is a maximum prison sentence of five years for each person someone is found guilty of infecting. There is no minimum sentence.

If someone is under the age of 21 they will serve their sentence in a young offenders’ institute. Someone with no settled residency status in the UK can be deported after finishing their prison sentence (the judge has recommended this in some trials).

The penalty for ‘intentional grievous bodily harm’ is a maximum sentence of life imprisonment.