UK News

Law is ‘reckless’ on HIV prosecutions

The law is being used “recklessly” in this country in criminal prosecutions for HIV transmission, according to the editor of NAM’s AIDS Treatment Update (ATU).

Speaking at the AIDS Impact Conference in Marseilles in July, Edwin Bernard said that criminalisation of HIV has now become the hot issue in this country.

Between 2001and 2007 there have been 15 prosecutions and 12 convictions of people with HIV for ‘reckless’ transmission of the virus, Mr Bernard reported.

Prison sentences of between 2.5 and 9.6 years have been handed down to those convicted.

Nine white British, 4 black Africans and 2 white Europeans with HIV have so far been prosecuted.

Of the cases, 10 were for male to female transmission, 2 female to male and 3 male to male.

In order to be prosecuted successfully for Grievous Bodily Harm (GBH) in this country, the defendant has to be HIV positive and be proved ‘reckless’ in foreseeing possible harm done by his or her actions.
The law itself is being used recklessly in such cases, Mr Bernard said, and as a blunt instrument in a misguided way.

The criminal law is focusing on innocent victims versus guilty perpetrators and is increasing HIV stigma and discrimination.

A 2005 survey by the UKC (UK Coalition of People Living with HIV and Aids) found that a third of people thought that criminalisation of HIV would increase transmission rates and a half of those questioned thought it would make no difference.

“Is disclosure of status now a duty for all HIV positive people?” Mr Bernard asked.

A 1998 government White Paper suggested that only ‘intentional’ HIV transmission should be prosecuted.

“Now the law is suggesting that HIV positive people are 100 per cent responsible for keeping their infection to themselves.”

The law rewards ignorance and gives a false sense of security, Mr Bernard said, and is responsible for spreading fear and paranoia among HIV positive people in this country.

And the demand for scientific evidence by the police and courts in such cases means that medical confidentiality in HIV and sexual health is no longer above the law.

Fear is also leading to mistrust of the police and legal system by HIV positive people, he said, and there have been anecdotal reports of police pursuing HIV positive people and searching mobile phone records, diaries and address books.

The police are even conducting ‘fishing’ expeditions to gain evidence, Mr Bernard alleged.

Lisa Power, head of policy at Terrence Higgins Trust (THT), said the law was ‘an ass’ on the issue.

It was setting up supposed good HIV positive people versus bad HIV positive people, was not helping anyone and was making stigmatisation of people living with the virus even worse.

Dr Anna Marie Geretti, of the Royal Free Hospital, said that she had been asked to give scientific evidence in court.

“Phylogenetic evidence cannot prove that Person A gave the same virus to Person B,” she said.

The Crown Prosecution Service (CPS) has been conducting a consultation on the issue and was due to report earlier this year and a Department of Health (DH) consultation was due to be published this summer.

Mr Bernard said government inaction on effective HIV prevention campaigns was being glossed over by targeting HIV positive people for prosecution.

Dr James Collier, of Chelsea and Westminster Hospital, said that clinical notes were now no longer legally privileged and confidential medical records could be requested by the courts.

Even the proper use of condoms did not preclude a prosecution for criminal ‘recklessness’ he said.

Both UNAIDS and the World Health Organisation (WHO) had proposed minimal use of criminal law in controlling HIV transmission, he added.