Most allegations never reach court, especially now that there are clear guidelines for police and the prosecution service in England and Wales. Scotland introduced prosecution guidelines in 2012 but these have yet to be tested in practice.
Most often, cases are dropped because it becomes clear on investigation that more than one person could have been the source of the infection, or more than one route. Police examine the complainant’s medical history and sexual history to check this. Blood samples from both parties (which should be checked at an early stage of the investigation) may also rule out the person accused.
Sometimes it is not possible to prove which of the people concerned had the virus first, and sometimes it becomes clear that infection took place before the accused knew they had HIV.
In England, it is not possible to prosecute someone for reckless or intentional transmission if they didn’t know that they had HIV at the time they transmitted it.
In Scotland, it may be more difficult to prove that a person had been reckless if they didn’t know they had HIV when they passed the virus on.
However, these investigations can take a long time, especially when inexperienced police or prosecutors are managing the case. These delays can cause a lot of distress in themselves and, if they are poorly managed, can lead to inadvertent disclosure. A good defence solicitor will engage with the police to minimise this.
The Crown Prosecution Service (CPS) in England and Wales are supposed to refer all such cases to a senior officer but again, local offices sometimes need to have their own guidance pointed out to help them to resolve things.
If you feel a case is being wrongly drawn out, seek advice from THT Direct or your solicitor.
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Can you be prosecuted for not disclosing you are positive even if a sexual encounter did not end in subsequent infection. ie I heard someone who is HIV negative say 'If I found out someone who had sex with me was HIV Positive and knew it, but didn't tell me at the time I would sue them through the courts'. Could they?
This article was last reviewed on
by Anna Peters
Date due for the next review: 16/9/2018
Content Author: Daisy Ellis
Current Owner: Policy
Policing Transmission, Terrence Higgins Trust & NAT (2008).
Policy for prosecuting cases involving the intentional or reckless sexual transmission of infection, The Crown Prosecution Service.
Intentional or Reckless Sexual Transmission of Infection, The Crown Prosecution Service.
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CAB - Citizens Advice Bureau
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George House Trust
Equality and Human Rights Commission
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