Criminal Prosecution Criminal Prosecution for for

HIV TransmissionHIV Transmission

With ENORMOUS thanks to:With ENORMOUS thanks to:

Yusef Azad – NATYusef Azad – NAT

Lisa Power - THTLisa Power - THT

Prosecutions to Date:Prosecutions to Date:England and WalesEngland and Wales

13 prosecutions for reckless transmissions since 13 prosecutions for reckless transmissions since 2003 (Last prosecution 2006)2003 (Last prosecution 2006)10 heterosexual/3 homosexual10 heterosexual/3 homosexual10 convictions/3 acquittals10 convictions/3 acquittalsAll convicted got custodial sentencesAll convicted got custodial sentences6 migrant men (5 African/1 EU)6 migrant men (5 African/1 EU)

5 white British men5 white British men 2 white British women2 white British women

Offences Against the Person Act Offences Against the Person Act 18611861

All England /Wales prosecutions have beenAll England /Wales prosecutions have been

under:under:

Section 20 – “inflicting any grievous bodily Section 20 – “inflicting any grievous bodily harm with or without a weapon” – applies harm with or without a weapon” – applies to reckless transmissionto reckless transmission

In Scotland, the crime is “culpable and In Scotland, the crime is “culpable and reckless conduct” - a common law offencereckless conduct” - a common law offence

Clarifying the Law in Clarifying the Law in England/WalesEngland/Wales

CPS Policy Statement and Guidance on CPS Policy Statement and Guidance on Prosecuting Intentional or Reckless sexual Prosecuting Intentional or Reckless sexual transmission of infection – March 2008transmission of infection – March 2008

No such clarification in Scotland yetNo such clarification in Scotland yet

RecklessnessRecklessness““The conscious taking of an unjustifiable The conscious taking of an unjustifiable

risk” risk”

The key legal concepts for recklessness in The key legal concepts for recklessness in disease transmission:disease transmission:Need to infect their partner with HIVNeed to infect their partner with HIVNeed to know they are HIV+Need to know they are HIV+Need to understand the risk of Need to understand the risk of transmissiontransmissionNeed to engage in behaviour which carries Need to engage in behaviour which carries a risk of transmissiona risk of transmission

The Defence of ConsentThe Defence of Consent

““Consent” of the sexual partner to risk of Consent” of the sexual partner to risk of infection is a defenceinfection is a defence

BUT…. Consent to risk does not mean BUT…. Consent to risk does not mean someone understanding in general terms someone understanding in general terms the risk of HIV from UPSIthe risk of HIV from UPSI

I. Infecting your partner with HIVI. Infecting your partner with HIV

For reckless transmission cases, the For reckless transmission cases, the sexual partner MUST have been infected sexual partner MUST have been infected by the defendant with HIVby the defendant with HIV

Currently there are problems with Currently there are problems with complaints, arrests and investigations complaints, arrests and investigations where it is not clear anyone has actually where it is not clear anyone has actually been infectedbeen infected

II. Infecting your partner with HIVII. Infecting your partner with HIV

Are we sure it was the defendant/accused who Are we sure it was the defendant/accused who infected the complainant?infected the complainant?The assumption should not be made that it is the The assumption should not be made that it is the person first to be diagnosed who is responsible person first to be diagnosed who is responsible for the infectionfor the infectionVarious elements of evidence combine to Various elements of evidence combine to demonstrate the likelihood of infection:demonstrate the likelihood of infection:Sexual histories of both partiesSexual histories of both partiesTesting histories of both partiesTesting histories of both partiesPhylogenic analysis of virus samples from defendant and Phylogenic analysis of virus samples from defendant and complainantcomplainant

III. Infecting your partner with HIVIII. Infecting your partner with HIV:Phylogenic analysis:Phylogenic analysis

Used in prosecutions to see if virus samples of Used in prosecutions to see if virus samples of complainant and defendant “match”complainant and defendant “match”PA PA has to take place has to take place for a prosecution to be successfulfor a prosecution to be successfulPA can prove that the defendant did NOT infect the PA can prove that the defendant did NOT infect the complainant – i.e. the samples to not “match”complainant – i.e. the samples to not “match”If the samples DO match, it is If the samples DO match, it is possiblepossible the defendant the defendant infected the complainant – but there are other infected the complainant – but there are other possibilities e.g. – both infected by a 3possibilities e.g. – both infected by a 3rdrd party, the party, the complainant infected the defendantcomplainant infected the defendantProof of responsibility for infection will be extremely Proof of responsibility for infection will be extremely difficult where the complainant has had more than one difficult where the complainant has had more than one sexual partner over the relevant periodsexual partner over the relevant period

Knowing you are HIV+Knowing you are HIV+

In the vast majority of cases a person In the vast majority of cases a person only knows they are HIV+ if they have only knows they are HIV+ if they have been diagnosedbeen diagnosedNeed to prove defendant understood: Need to prove defendant understood:

1)1) Knowledge they were HIV+Knowledge they were HIV+2)2) Knowledge they are infectious to other Knowledge they are infectious to other

peoplepeople3)3) Knowledge of how HIV can be Knowledge of how HIV can be

transmittedtransmitted

CPS note “shock of diagnosis” – CPS note “shock of diagnosis” –

““any further information that is given at the any further information that is given at the same time as diagnosis may be unlikely to same time as diagnosis may be unlikely to have registered with the defendant”have registered with the defendant”

I.I. Risk Taking behaviourRisk Taking behaviour

UPVI/UPAI constitutes risk taking behaviourUPVI/UPAI constitutes risk taking behaviour

CPS guidance states “appropriate and CPS guidance states “appropriate and reasonable safeguards” are a defence against a reasonable safeguards” are a defence against a charge of reckless transmission – for HIV the charge of reckless transmission – for HIV the safeguard would ordinarily be a condomsafeguard would ordinarily be a condom

Where a condom has been used appropriately Where a condom has been used appropriately (or the defendant in good faith believed it had (or the defendant in good faith believed it had been so used) it is likely a prosecution would fail been so used) it is likely a prosecution would fail even if transmission had taken placeeven if transmission had taken place

II. Risk taking behaviourII. Risk taking behaviour

What if the condom breaks and is noticed? What if the condom breaks and is noticed? CPS guidance is less clear although CPS guidance is less clear although encourages a “reasonable and practical encourages a “reasonable and practical view” of whether recklessness is provableview” of whether recklessness is provable

If the defendant becomes aware of the If the defendant becomes aware of the condom breaking, status should be condom breaking, status should be immediately disclosed or resume sex with immediately disclosed or resume sex with a new condoma new condom

PEPPEP

CPS guidance is silent on thisCPS guidance is silent on thisNAT/THT currently seeking greater clarityNAT/THT currently seeking greater clarityUnclear whether there is any legal Unclear whether there is any legal obligation on PEP advice where it is obligation on PEP advice where it is thought transmission could have taken thought transmission could have taken placeplaceIt is safer from a responsible and legal It is safer from a responsible and legal point of view to advise partner to access point of view to advise partner to access PEPPEP

III. Risk Taking behaviourIII. Risk Taking behaviour

Oral sex? No cases as yet which is unsurprisingOral sex? No cases as yet which is unsurprising

To be completely safe from prosecution To be completely safe from prosecution advisable to disclose status to sexual partners or advisable to disclose status to sexual partners or use a condomuse a condom

Undetectable VL? While HIV clinicians and Undetectable VL? While HIV clinicians and health professionals continue to advise condom health professionals continue to advise condom use for those with an undetectable VL, it is use for those with an undetectable VL, it is questionable that whether a defence bases on questionable that whether a defence bases on VL would succeedVL would succeed

Consent of Complainant to risk of Consent of Complainant to risk of TransmissionTransmission

Consent of complainant to the risk of HIV Consent of complainant to the risk of HIV transmission is a defencetransmission is a defenceBUT a general knowledge of the risks of UPSI BUT a general knowledge of the risks of UPSI does NOT constitute consent for the purposes of does NOT constitute consent for the purposes of lawlawThe complainant HAS to have known of the HIV The complainant HAS to have known of the HIV status of the defendant – usually through the status of the defendant – usually through the defendant disclosing their statusdefendant disclosing their statusCPS does acknowledge possibility of knowledge CPS does acknowledge possibility of knowledge from a 3from a 3rdrd party, hospital visit, symptoms party, hospital visit, symptoms

SentencingSentencing

Maximum sentence for a single charge of Maximum sentence for a single charge of reckless transmission is 5 years in prisonreckless transmission is 5 years in prison

All sentences to date have been custodial All sentences to date have been custodial and most over 3 yearsand most over 3 years

In Conclusion…..In Conclusion…..

You may be prosecuted for reckless transmission You may be prosecuted for reckless transmission of HIV if:of HIV if:

You know you are HIV+You know you are HIV+

You understand the risk of HIV transmissionYou understand the risk of HIV transmission

You engage in risk taking sexual behaviour, and You engage in risk taking sexual behaviour, and as a result….as a result….

You infect your sexual partnerYou infect your sexual partner

You have not previously disclosed your HIV You have not previously disclosed your HIV status to that sexual partner.status to that sexual partner.

Role of Health AdvisersRole of Health Advisers

Make sure your information is up to dateMake sure your information is up to dateDon’t advise on what you don’t knowDon’t advise on what you don’t knowEnsure you are a source of support to both people facing Ensure you are a source of support to both people facing charges and people bringing chargescharges and people bringing chargesEnsure people with HIV know about the lawEnsure people with HIV know about the law

HOWEVERHOWEVERGive people FACTS – do NOT become Give people FACTS – do NOT become emotionally/personally involvedemotionally/personally involvedRefer on to THT/NAT who have experience dealing with Refer on to THT/NAT who have experience dealing with both sides of the situation and have lawyers they work both sides of the situation and have lawyers they work withwith

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Further InformationFurther Information

www.nat.org.ukwww.nat.org.uk

www.tht.org.uk/prosecutionswww.tht.org.uk/prosecutions

www.cps.gov.uk/legal/section7www.cps.gov.uk/legal/section7