Reckless transmission of HIV should not result in prosecution

Panellists at a City University London debate on HIV and the Criminal Law argued against prosecution for the reckless transmission of HIV.

The ‘reckless transmission’ of HIV should not be used for prosecution, according to the majority of panellists at a recent debate at City University London, called HIV and the Criminal Law. Instead it was argued that HIV prevention must be the primary objective above an appetite for justice and investing in more education.


Chaired by Barrister and broadcaster Clive Anderson, the panellists were Yusef Azad Director of Policy and Campaigns, National AIDS Trust,  Arwel Jones, Team Leader of the Domestic Affairs Division, Crown Prosecution Service, Catherine Dodd, Senior Research Fellow, Sigma Research, University of Portsmouth and Matthew Weait, Reader in Socio-Legal Studies, and author of Intimacy and Responsibility, The Criminalisation of HIV Transmission, School of Law, Birkbeck University.

 

The debate focused on how to prove reckless transmission and who is responsible and the important distinction between intentional transmission. In reckless transmission cases there is no desire to infect the sexual partner with HIV. The HIV positive person knows there is a risk of transmission and nevertheless consciously takes that risk, infecting his/her sexual partner as a result. It was agreed that this is not behaviour to be condoned or accepted, but those opposing reckless transmission argued the use of criminal law, with its emphasis on punishment and retribution, is not the best solution.

 

“The use of the criminal law in the fight against HIV is a blunt, crude and brutal weapon. At present, prosecutions can and are being brought for the reckless transmission of HIV and those convicted face severe sentences. Relatively few prosecutions have been brought but the impact of such investigation should not be underestimated.”

Keith Simpson, Director of Equality and Diversity, The City Law School

 

“It is hard to conceive of individuals intentionally transmitting HIV and even harder to prove beyond reasonable doubt. It is therefore the issue of recklessness that is the real cause for concern and its appropriateness in otherwise consensual sexual relationships.”

 

Yusef highlighted how the appetite for justice is higher than the appetite for maintaining public health and that the law regarding reckless transmission discriminates against people who have a positive diagnosis, adding to the stigma attached to having HIV.

 

Defending the law, Arwel explained that The Crown Prosecution Service encourages HIV testing and that criminal law is meant to act as a deterrent. Whilst Section 18 of the Offences Against the Person Act (OAPA) 1861 might be used for those who intentionally transmit HIV, it was highlighted that not one single conviction has been made under this section.

 

For the reckless transmission of HIV (and other sexual infection such as Hepatitis B and C), prosecutions are being brought under Section 20 of OAPA 1861. So far in the cases that have been brought, 100% have received a custodial sentence and 78% a sentence of more than three years. Many more have been subjected to police investigation (a Terrence Higgins Trust investigation in June 2006 showed that cases coming to their attention were running at an average of one a fortnight). Arwel did point out the small number of prosecutions that have been brought under Section 20.

 

Simpson continues: “I believe that the solution to stem the rise of HIV sexual transmission is to increase funding to promote greater HIV health education and awareness. This would inform and encourage individuals to take responsibility for their sexual activity. “



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Date of Article:  03/12/2009