Criminalisation

The Background
What the law says?

Court cases in England, Wales and Scotland have seen the criminal prosecution of individuals who have infected their sexual partners with HIV. It has only recently in law become established that it is a crime to give someone HIV and therefore the legal position could still change. This website will be updated regularly when important developments occur.

The Legal framework

At this moment in time (October 2006); In England and Wales people who infect someone with HIV can be charged with ‘Recklessly Inflicting Grievous Bodily Harm’ under section 20 of the Offences Against the Person Act 1861. In Scotland people can be prosecuted for ‘Reckless Injury’.

The 1861 Offences Against the Person Act also has a charge of ‘Intentional Grievous Harm’, (Section 18). This offence has never been successfully used although the media has suggested otherwise. In England and Wales all of the cases so far have been of ‘reckless grevious bodily harm’ (Section 20)

To secure a conviction of ‘reckless grievous bodily harm’ (Section 20) there has to be proof of:

• The person infecting their partner.
• The person with HIV was aware (or should have been aware) of the risk of transmission.
• The person who became infected did not explicitly give informed consent to sex with someone who they knew was HIV positive.

The punishment of ‘reckless grievous bodily harm’ is a maximum prison sentence of five years for every person infected. There is no minimum sentence.

There is a possibility that someone who has no settled residency status in the UK can be deported after finishing their sentence, and this has been recommended in some cases already.

The penalty for ‘intentional grievous bodily harm’ is a maximum sentence of life imprisonment.

Definitions

In legal terms ‘reckless’ means that the person with HIV was careless before sex because either:<

• They did not say that they had HIV (or lied about their status)
• They did not use a condom
• They did not plan for their partner to become infected
   
  But they are guilty of not trying to stop it happening.

There can only be a case of ‘grievous bodily harm’(GBH) if a case of transmission has occurred.

Although it is theoretically possible that a case of ‘intentional’ grievous bodily harm could be brought in the case of sexual transmission of HIV it is highly unlikely. It is more likely that cases of ‘intentional’ grievous bodily harm may come to court where there has been attacks that specifically intend to infect others, such as attacks with a syringe of infected blood.