When is someone found guilty of reckless HIV transmission?
In England and Wales, you may be found guilty of reckless HIV transmission if all of the below apply:
- You had sex with someone who didn’t know you had HIV.
- You knew you had HIV at that time.
- You understood how HIV is transmitted.
- You had sex without a condom.
- You transmitted HIV to that person.
In Scotland, the law is more strict. You can also be prosecuted for putting someone at risk without their prior knowledge or consent, even if transmission did not take place.
What is the penalty when someone is found guilty?
In England and Wales, the penalty is a maximum prison sentence of five years for each person someone is found guilty of infecting. There is no minimum sentence.
Non-UK residents can be recommended for deportation upon completion of their sentence.
In Scotland, sentencing has been at the higher end of the scale for ‘reckless conduct’, ranging from five years in one case to 10 years for a person who infected one individual and had ‘exposed’ three others.
Someone can only be charged with intentional transmission if it can be proved they maliciously and intentionally tried to give the other person HIV. Although many cases start with this allegation, so far the charges have always been reduced to reckless transmission before reaching trial.
There is often a lot of confusion, with people assuming that anyone who knows they have HIV and then transmits it must have done so ‘intentionally’, but this is not so – either legally or in everyday life.
However, the maximum sentence for intentional transmission is life imprisonment, so it is vital to get good legal advice fast if this is the charge.
How can I avoid being prosecuted for HIV transmission?
The simplest way of avoiding prosecution is to make sure that your partner knows you have HIV, and that whatever sex you have is consensual within this knowledge.
If you don’t feel able to tell them about your diagnosis, you should use a condom when having sex to avoid passing HIV on.
It’s also important to follow your doctor’s advice on treatment and try to reduce your viral load to undetectable levels, to minimise the chance of accidental transmission.
If you find it difficult to use a condom, or difficult to insist that your sexual partner uses a condom, help and advice are available from your HIV clinic, Terrence Higgins Trust or another local HIV support organisation.
Sometimes, despite this, accusations get made. If that happens, contact THT Direct and get specialist advice.
Which law is used to prosecute HIV transmission in England and Wales?
The law used in England and Wales to prosecute people for HIV transmission is the Offences Against the Person Act 1861 (OAPA 1861). People are prosecuted under the section on grievous bodily harm.
There are two possible offences - reckless transmission (under Section 20) and intentional transmission (under Section 18).
You must have actually transmitted HIV to be successfully prosecuted.
Which law is used to prosecute HIV transmission in Scotland?
The common law offence of Culpable and Reckless Conduct is used to prosecute cases in Scotland.
This is a legal catch-all vehicle which criminalises acts that cause injury to others or create a risk of injury. This means that people can technically be prosecuted for both passing on the virus and for putting someone at risk through unprotected sex.
The law in Scotland focuses on the behaviour of the defendant, rather than the harm caused, and whether their conduct can be considered ‘reckless’ or not.