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HIV transmission as a crime

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HIV transmission as a crime
Posted on: February 25 2010, 11:17 am

 Criminal prosecutions for HIV transmission threaten public health, argue Ruth Lowbury and George R Kinghorn

Around the world, criminal prosecutions for the transmission of HIV have been in the news recently.w1 w2 Some countries have adopted a policy of prosecuting certain cases, in which transmission is characterised as intentional, reckless, or negligent. These include 21 countries out of 41 that responded to a European survey, with the number of reported prosecutions in each country between one and more than 30.w3

Globally, different types of law have been used to criminalise the transmission of HIV. Some jurisdictions have created new offences specific to HIV-for example, some states in the United States. Some countries have applied pre-existing offences, such as grievous bodily harm in the United Kingdom. Countries such as Sweden have used public health legislation, and others have used a combination-for example, Australia.w4 In some countries, prosecutions require actual transmission of infection, but, elsewhere, behaviour with the potential for transmission suffices.

There may also be little consistency in the type of person or behaviour selected for prosecution. A recent attempt to introduce standardised criteria for prosecutions in England and Wales is therefore welcome.w5 But we have serious concerns about the impact on public health of criminalising the transmission of disease.

People infected with HIV who are taking antiretroviral treatment can live relatively healthy lives, but people whose infection remains undiagnosed face serious illness and death. There has never been a stronger imperative to encourage people at risk to come forward for testing so that they can access treatment. In the face of a rapidly rising prevalence of HIV infection, there is an equally strong imperative for preventing transmission.

Crucial trust

The UK government has made it a policy priority to increase uptake of HIV testingw6 w7 and is funding prevention programmes in England for the population groups most at risk. Services throughout the country offer voluntary testing, confidential partner notification, and education and support for affected people and their partners. These measures rely on a crucial relationship of trust and confidence between patients and healthcare professionals.

The sustainability and success of this approach are threatened by the policy of criminal prosecution. Although people with HIV or at risk of infection have had many reasons to be fearful about the impact of HIV, the possibility of appearing in a court of law followed by imprisonment had not until recently been one of them. But 2001 saw the first successful prosecution in Scotland for "reckless injury,"w8 followed by some in England and Wales for "reckless transmission" of HIV, under the Offences Against the Person Act 1861. The Terrence Higgins Trust, a UK HIV charity, says more cases are in the pipeline.

Already this use of the criminal law is having unintended negative consequences. Awareness is spreading in people with HIV that they face the threat of criminal prosecution. Media coverage has vilified convicted people as "AIDS assassins," exacerbating the stigma already associated with infection. No wonder people unlucky enough to become infected often choose to keep their status a secret.

People in this situation need help and support to plan how and to whom they will disclose their status, and to find strategies for protecting other people from infection. With a spouse or long term partner, suddenly refusing to have sex or requiring the use of condoms without explanation is unlikely to be effective. But disclosure of HIV status may lead to rejection, physical violence, and financial destitution.

If word gets out into the community, perhaps through a sexual partner, people with HIV risk being ostracised, with their families taunted and their employment and entire existence under threat. Health professionals can advise and help, but their patients, if fearful of prosecution, may be unwilling even to tell them if they are having difficulties avoiding unprotected sex.w9

Who infected whom?

An estimated 20 000 people in the United Kingdom have HIV infection that is still undiagnosed.w10 There is a clear disincentive to testing when prosecution relies on defendants knowing they are infected. Meanwhile, people who take the test may not agree to their partners being notified for fear of legal repercussions, thereby jeopardising essential efforts to control public health. In addition, the threat to the confidentiality of data posed by criminal investigations may deter participation (or honesty) in the sexual behaviour research which provides an essential evidence base for HIV prevention.

Doctors need guidance on whether the potential for criminal prosecutions changes their legal and ethical duty of confidentiality and how to advise their HIV positive patients, who may become "victims" or "defendants" if a prosecution occurs. A draft briefing paper can be obtained from the British HIV Association.w11

Evidence on the impact to public health of criminal prosecutions for reckless transmission of HIV is limited,w12 and further research is urgently needed. Uptake of HIV testing in groups at highest risk should be monitored to see whether criminalisation may be leading to reductions.

In England and Wales, the draft policy on criminal prosecution for the "sexual transmission of infections which cause grievous bodily harm," states that a prosecution will usually take place "unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour." Putting aside the difficulties in attributing who infected whom, we would argue that, in the case of criminal prosecution for reckless transmission of HIV, the public interest is not best served by pursuing justice against the few at the expense of the health of the many.

Ruth Lowbury, executive director, Medical Foundation for AIDS and Sexual Health (MedFASH), London WC1H 9JP
George R Kinghorn, clinical director for communicable diseases, Royal Hallamshire Hospital,Sheffield Teaching Hospitals NHS Foundation Trust, Sheffield S102JF

studentBMJ 2006;14:441-484 December ISSN 0966-6494

Competing interests: None declared.

   1. Kidd P. Sex crime: two men jailed for transmitting HIV. Positive Living 19 January, 2006. (News magazine of the National Association of People Living with HIV/AIDS, Australia) (accessed 8 Nov 2006)
   2. Pancevski B. Swiss judge orders HIV positive woman to disclose partners� names. BMJ 2006;332:809 (8 April) (accessed 8 Nov 2006)
   3. Global Network of People Living with HIV/AIDS Europe (GNP+) (Europe) and Terrence Higgins Trust (THT). Criminalisation of HIV transmission in Europe. A rapid scan of the laws and rates of prosecution for HIV transmission within signatory States of the European Convention of Human Rights. GNP+ and THT, 2005. (accesssed 7 Nov 2006)
   4. Joint United Nations Programme on HIV/AIDS (UNAIDS). Criminal law, public health and HIV transmission: a policy options paper. Geneva: UNAIDS, 2002. (accessed 7 Nov 2006)
   5. Crown Prosecution Service. DRAFT policy for prosecuting cases involving sexual transmission of infections which cause grievous bodily harm. London: Crown Prosecution Service, 2006. (Consultation closing date: 3 November 2006.) (accessed 7 Nov 2006).
   6. Department of Health. Better prevention, better services, better sexual health - The national strategy for sexual health and HIV. London: Department of Health, 2001. (accessed 7 Nov 2006).
   7. Donaldson L. Health check on the state of public health: Annual report of the chief medical officer 2003. London: Department of Health, 2004. (accessed 7 Nov 2006).
   8. Bird SM and Leigh Brown AJ. Criminalisation of HIV transmission: implications for public health in Scotland. BMJ 2001;323;1174-1177 (accessed 8 Nov 2006)
   9. UK Coalition of People Living with HIV & AIDS. Criminalisation of HIV transmission: Results of online and postal questionnaire survey. London: UK Coalition of People Living with HIV & AIDS, 2005. (accessed 7 Nov 2006).
  10. The UK Collaborative Group for HIV and STI Surveillance. Mapping the issues. HIV and other sexually transmitted infections in the United Kingdom: 2005. London: Health Protection Agency, 2005. (accessed 7 Nov 2006).
  11. Anderson J, Chalmers J, Nelson M, Poulton M, Power L, Pozniak A, et al. HIV transmission, the law and the work of the clinical team. A briefing paper. Draft for consultation. British HIV Association, 2006. Available from (accessed 7 Nov 2006).
  12. Dodds C, Weatherburn P, Hickson F, Keogh P, Nutland W. Grievous harm? Use of the Offences Against the Person Act 1861 for sexual transmission of HIV. London: Sigma Research, 2005. (accessed 7 Nov 2006).
Reply #1 on: February 25 2010, 11:31 am
HIV man jailed for 'reckless sex'
Reply #2 on: February 25 2010, 06:34 pm

A man whose girlfriend found out he had infected her with HIV when she was pregnant has been jailed for 10 years.

Mark Devereaux - who also had unprotected sex with other women - had known he had the virus for nine years.

The 28-year-old woman, pregnant with twins, chose to have an abortion after discovering she had HIV.

Devereaux, 41, from Dundee, admitted four charges of culpable and reckless conduct dating from January 2003 to December 2008.

Devereaux was working offshore when his partner found a letter in their home in the north east of Scotland which said he was HIV positive.

It later emerged Devereaux, who latterly lived in Dundee, had known for nine years before he began their six-year relationship that he had the virus and could pass it on.

He admitted that he had had unprotected sex with four different women without telling them about the risks involved.

The woman who was found to be positive got her test result when she was three months pregnant and decided to have an abortion.

Three of his victims escaped infection.
It seems to me that you callously and cruelly betrayed the trust placed in you by each of your partners and that you deceived them for your own self-centred reasons
Lord Pentland

During sentencing at the High Court in Dumbarton, judge Lord Pentland told Devereaux his behaviour had been "utterly irresponsible, dangerous and selfish".

He added: "You repeatedly and regularly had sexual intercourse with a number of women without taking any steps to protect them.

"You were well aware from the medical advice given to you that you were at risk of infecting any sexual partner if you had unprotected intercourse.

"But you chose not to inform any of your partners that you had the virus. You chose not to use a condom or take any precautions."

He continued: "It seems to me that you callously and cruelly betrayed the trust placed in you by each of your partners and that you deceived them for your own self-centred reasons."

'Worst nightmares'

Devereaux was also told his name would be added to the sexual offenders register.

One of Devereaux's victims, now 27, who had a relationship with him in 2003, said: "He is definitely an evil person - he is extremely manipulative.

"I trusted him. Never in my worst nightmares could I have imagined him keeping something like the fact he was HIV positive from me.

"Thankfully, I wasn't infected with HIV."

HIV groups demanded the "highest standards of proof" before a prosecution can be brought for reckless transmission of the virus, in the wake of the case.

HIV Scotland said it would be alarming if more prosecutions were brought in cases where no harm had been caused.
Criminal Prosecution for HIV Transmission
Reply #3 on: March 9 2010, 11:59 am
Reply #4 on: May 14 2010, 10:20 am

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