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Criminal Prosecution for HIV Transmission

Criminal Prosecution for HIV Transmission. With ENORMOUS thanks to:. Yusef Azad – NAT Lisa Power - THT. Prosecutions to Date: England and Wales. 13 prosecutions for reckless transmissions since 2003 (Last prosecution 2006) 10 heterosexual/3 homosexual 10 convictions/3 acquittals

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Criminal Prosecution for HIV Transmission

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  1. Criminal Prosecution for HIV Transmission

  2. With ENORMOUS thanks to: • Yusef Azad – NAT • Lisa Power - THT

  3. Prosecutions to Date:England and Wales • 13 prosecutions for reckless transmissions since 2003 (Last prosecution 2006) • 10 heterosexual/3 homosexual • 10 convictions/3 acquittals • All convicted got custodial sentences • 6 migrant men (5 African/1 EU) 5 white British men 2 white British women

  4. Offences Against the Person Act 1861 All England /Wales prosecutions have been under: • Section 20 – “inflicting any grievous bodily harm with or without a weapon” – applies to reckless transmission In Scotland, the crime is “culpable and reckless conduct” - a common law offence

  5. Clarifying the Law in England/Wales • CPS Policy Statement and Guidance on Prosecuting Intentional or Reckless sexual transmission of infection – March 2008 • No such clarification in Scotland yet

  6. Recklessness“The conscious taking of an unjustifiable risk” The key legal concepts for recklessness in disease transmission: • Need to infect their partner with HIV • Need to know they are HIV+ • Need to understand the risk of transmission • Need to engage in behaviour which carries a risk of transmission

  7. The Defence of Consent • “Consent” of the sexual partner to risk of infection is a defence • BUT…. Consent to risk does not mean someone understanding in general terms the risk of HIV from UPSI

  8. I. Infecting your partner with HIV • For reckless transmission cases, the sexual partner MUST have been infected by the defendant with HIV • Currently there are problems with complaints, arrests and investigations where it is not clear anyone has actually been infected

  9. II. Infecting your partner with HIV • Are we sure it was the defendant/accused who infected the complainant? • The assumption should not be made that it is the person first to be diagnosed who is responsible for the infection • Various elements of evidence combine to demonstrate the likelihood of infection: • Sexual histories of both parties • Testing histories of both parties • Phylogenic analysis of virus samples from defendant and complainant

  10. III. Infecting your partner with HIV:Phylogenic analysis • Used in prosecutions to see if virus samples of complainant and defendant “match” • PA has to take place for a prosecution to be successful • PA can prove that the defendant did NOT infect the complainant – i.e. the samples to not “match” • If the samples DO match, it is possible the defendant infected the complainant – but there are other possibilities e.g. – both infected by a 3rd party, the complainant infected the defendant • Proof of responsibility for infection will be extremely difficult where the complainant has had more than one sexual partner over the relevant period

  11. Knowing you are HIV+ • In the vast majority of cases a person only knows they are HIV+ if they have been diagnosed • Need to prove defendant understood: • Knowledge they were HIV+ • Knowledge they are infectious to other people • Knowledge of how HIV can be transmitted

  12. CPS note “shock of diagnosis” – “any further information that is given at the same time as diagnosis may be unlikely to have registered with the defendant”

  13. Risk Taking behaviour • UPVI/UPAI constitutes risk taking behaviour • CPS guidance states “appropriate and reasonable safeguards” are a defence against a charge of reckless transmission – for HIV the safeguard would ordinarily be a condom • Where a condom has been used appropriately (or the defendant in good faith believed it had been so used) it is likely a prosecution would fail even if transmission had taken place

  14. II. Risk taking behaviour • What if the condom breaks and is noticed? CPS guidance is less clear although encourages a “reasonable and practical view” of whether recklessness is provable • If the defendant becomes aware of the condom breaking, status should be immediately disclosed or resume sex with a new condom

  15. PEP • CPS guidance is silent on this • NAT/THT currently seeking greater clarity • Unclear whether there is any legal obligation on PEP advice where it is thought transmission could have taken place • It is safer from a responsible and legal point of view to advise partner to access PEP

  16. III. Risk Taking behaviour • Oral sex? No cases as yet which is unsurprising • To be completely safe from prosecution advisable to disclose status to sexual partners or use a condom • Undetectable VL? While HIV clinicians and health professionals continue to advise condom use for those with an undetectable VL, it is questionable that whether a defence bases on VL would succeed

  17. Consent of Complainant to risk of Transmission • Consent of complainant to the risk of HIV transmission is a defence • BUT a general knowledge of the risks of UPSI does NOT constitute consent for the purposes of law • The complainant HAS to have known of the HIV status of the defendant – usually through the defendant disclosing their status • CPS does acknowledge possibility of knowledge from a 3rd party, hospital visit, symptoms

  18. Sentencing • Maximum sentence for a single charge of reckless transmission is 5 years in prison • All sentences to date have been custodial and most over 3 years

  19. In Conclusion….. You may be prosecuted for reckless transmission of HIV if: • You know you are HIV+ • You understand the risk of HIV transmission • You engage in risk taking sexual behaviour, and as a result…. • You infect your sexual partner • You have not previously disclosed your HIV status to that sexual partner.

  20. Role of Health Advisers • Make sure your information is up to date • Don’t advise on what you don’t know • Ensure you are a source of support to both people facing charges and people bringing charges • Ensure people with HIV know about the law HOWEVER • Give people FACTS – do NOT become emotionally/personally involved • Refer on to THT/NAT who have experience dealing with both sides of the situation and have lawyers they work with

  21. DOCUMENT DOCUMENT DOCUMENT

  22. Further Information • www.nat.org.uk • www.tht.org.uk/prosecutions • www.cps.gov.uk/legal/section7

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