Criminal transmission of HIV

In many countries, the intentional or reckless infection of a person with the human immunodeficiency virus (HIV) is considered to be a crime. This is often conflated, in laws and in discussion, with criminal exposure to HIV, which does not require the transmission of the virus and often, as in the cases of spitting and biting, does not even include a realistic means of transmission. People who do so can be charged with criminal transmission of HIV, murder, manslaughter, attempted murder, or assault. Some states have enacted laws expressly to criminalize HIV transmission (or HIV exposure), as in the United States, while others charge under the existing laws, as in the United Kingdom.

Modes of transmission
Medical research has identified the following situations in which HIV may be transmitted:
 * Sexual transmission where one person with an HIV infection engages in unprotected sexual intercourse with another, thus transferring the virus;
 * Blood donation and transfusions or other medical procedures involving biological material such as blood, tissue, organs, or semen from an infected donor; HIV has been transmitted through the organ transplantation of kidney, liver, heart, pancreas, bone, and skin, all of which are blood-containing organs or highly vascular tissues (but not through transplantation of bone without marrow, corneas, etc.), but this mode of transmission, along with blood transfusions, has become rare since the development of accurate HIV-testing procedures.
 * The use of unsterilized needles/syringes for medical, recreational drug use (including a range of drug paraphernalia), tattooing, body piercing, etc.;
 * Pregnancy and postnatal transmission (e.g., breast feeding)

Blood donation
France began testing blood products for HIV antibodies in June 1985, Canada in November 1985, and Switzerland in May 1986. Germany inconsistently tested plasma products between 1987 and 1993, as did Japan in 1985 and 1986. There were criminal investigations and prosecutions of those persons found to be responsible for these delays (see Weinberg et al.]. At least 20 countries now have plans in place to compensate some classes of individuals, e.g. hemophiliacs, infected by the transfusion of HIV-contaminated blood and blood products.

The legal, political and social problems
The initial stages of HIV-positive are asymptomatic for periods usually exceeding one year. A person who engages in sexual activity or donates blood during this time may therefore have no reasonable basis upon which to suspect that he or she is transmitting a virus. The American Civil Liberties Union and other national groups have expressed concern that many newly drafted laws are too vague because they may criminalize individuals by virtue of their membership of a higher risk class of person, e.g. known drug users, the sexually promiscuous, etc. which will simply encourage prejudice and discrimination against the groups identified.

Moreover, most countries only criminalize HIV exposure or transmission if a person has been tested for HIV, and knows their positive test results. Because knowledge of status is a requirement for prosecution, criminal laws may act as a disincentive to testing, especially among the most high risk communities.

The offense would therefore have to be based on the exposure of others to risk or endangerment. This may place a legal duty of routine medical testing or of medical testing for cause, followed by a duty of disclosure on those who have actual or imputed knowledge of their condition, but ignores the social reality that the stigma associated with HIV may make disclosure difficult, e.g. loss of marriage and employment through prejudice and discrimination, or dangerous in communities where violence against HIV-positive people is common. After all, there is no confidentiality agreement in the bedroom and prosecutions may be initiated out of revenge.

The problems may be particularly acute in marriages and more permanent relationships where disclosure is an admission of sexual infidelity, rape or IV drug use. Seeking a less obvious route such as suddenly suggesting the use of a condom may be difficult without explanation of the implications to the other partner.

The political issues are many:
 * Although the other STDs are not fatal, infection can have severe consequences. Legislatures therefore need to justify why HIV should be treated differently from, say, infection with gonorrhea.
 * There may be human rights, civil rights and constitutional issues of privacy to consider.
 * Whether medical screening would need to be made compulsory; if so, with what degree of regularity; how would such compulsory testing possibly be enforced across all populations in all circumstances; and what should the testing centers do with the information thus obtained. (For example, all women could be tested as a part of their pregnancy management regime; in this context, note that some life insurance companies already require disclosure of HIV-relevant information as a precondition of the validity of the policies issued.)
 * If reckless transmission is criminalized and there are many high-profile prosecutions, those who might be infected may be deterred from testing so that they spare themselves actual knowledge of their positive status; such a phenomenon on a wide scale could have serious public health implications.
 * The legislation might have to amend existing laws on medical confidentiality so that doctors, nurses, and other health workers can trace those possibly exposed to the virus. But if their knowledge could be compelled testimony in any subsequent criminal trial, this might deter those infected from making any, or any complete, disclosure of their sexual or other activities which, again, could have serious public health implications.

Ruth Lowbury, executive director of the Medical Foundation for AIDS and Sexual Health in London (UK) and George R. Kinghorn, clinical director for communicable diseases at Royal Hallamshire Hospital in Sheffield (UK), argue that for the above and related reasons (such as the potential risks of prosecution of HIV/AIDS affected people may dissuade them from warning present or ex-partners about, "criminal prosecutions for HIV transmission threaten public health".

Lowbury and Kinghorn are sceptical of the preventive role of prosecution for reducing the infection rate and recommend that research be carried out to determine whether the net effect of prosecution is to decrease or increase the growth rate of the epidemic. They conclude their report stating that "in the case of criminal prosecution for reckless transmission of HIV, the public interest is not best served by pursuing justice against the few at the expense of the health of the many." The same argument has been made by a number of lawyers, policy makers and sociologists in recent years. See an article by Dr Matthew Weait (Keele University) and Dr Yusef Azad (National AIDS Trust) here.

There is an report by the World Health Organization on Criminalizing HIV Transmission, which can be found here.

The legal, political and social problems associated with HIV were discussed at a seminar series at Keele University in 2005/6. The papers at that seminar can be accessed here.

Legal events in connection with criminal-transmission events
In many English-speaking countries and in most of the states who have signed the European Convention of Human Rights, knowingly infecting others with HIV can lead to criminal prosecution.

In a 2004 survey of the latter group, the Global Network of People Living with HIV/AIDS found that at least one prosecution had occurred in about half of these countries, and that in Finland, Sweden and Slovakia, about 0.5% to 1% of all people reported to be living with HIV/AIDS had been prosecuted for alleged intentional or "negligent" transmission of HIV. In many developing countries such as Thailand where the HIV/AIDS pandemic is much more serious, laws are either weak or non-existent regarding criminalisation of intentional transmission.

Germany
In the Federal Republic of Germany on 16 August 2010, Nadja Benaissa of the German pop music group No Angel admitted to sex with several men while knowing her HIV-positive status, and infecting one of those several, who subsequently brought the case against her. She faces prison, but has denied any intent to infect, apologising profusely and saying "When I was arrested I realised that the way that I had dealt with the illness had been wrong... I made a big mistake... No way did I want my partner to be[come] infected." Benaissa has claimed she had been told by doctors that the risk of passing on the virus was "practically zero".source

Australia
In New South Wales a person with HIV must disclose their status to all sexual partners. In other states, there is no specific legislation to require disclosure and whether or not the law requires it is open to debate. Intentionally transmitting the virus is a crime in all states, either specifically, or because it meets the definition of a more general offense such as conduct endangering life (this varies from state to state).

Canada
The leading case is R. v. Cuerrier (1998) 127 CCC (3d) 1 (SCC) where the defendant was charged with aggravated assault for the sexual transmission of HIV under s268 Canadian Criminal Code. The Supreme Court of Canada found that the trial judge had misdirected himself and ordered a new trial on two counts of aggravated assault but, in May 1999, the Attorney-General for British Columbia announced that a new trial would not take place.

The Supreme Court ruling caused difficulty because even though it only concerned non-disclosure of HIV-positive status in sexual situations, it unanimously rejected of the English authority of R v Clarence, L’Heureux-Dubé stating that any fraud could vitiate consent to all types of assault because the autonomy and physical integrity of the person has been violated. Thus, because the Canadian legislature has declined to criminalize the transmission of HIV, the judiciary must address the issues as and when they arise. Subsequent legal precedent has established that failure to disclose HIV-positive status, combined with failure to utilize protective measures (condom use), is sufficiently fraudulent behaviour to constitute turning "consensual" sex into aggravated sexual assault, since the other party has been denied the information necessary to give properly informed consent.

On 1 December 2005, Jian Ghomeshi filed a report on this issue for the CBC. He asked whether there is a legal obligation to disclose HIV status. He held up the case of Johnson Aziga, who was diagnosed in 1996 but then allegedly had unprotected sex with at least 13 women. Aziga was charged with two counts of murder and 11 counts of aggravated sexual assault; the prosecution claims that he did not disclose his status. On 4 April 2009, Aziga was found guilty of the two counts of first degree murder as well as the lesser counts. The current precedent in Canada stands as any person who has HIV, fails to disclose the fact to their sexual partner, and does not take some sort of protective measure (such as condom use), is guilty of aggravated sexual assault as per R. v. Cuerrier and subsequent cases. Aziga was convicted of first degree murder since under Canadian law, any death as a result of aggravated sexual assault (two of the women died as a result of the HIV infection received from intercourse with Aziga) is automatically first degree murder as per section 231 of the Criminal Code of Canada.

Hamish Stewart, a University of Toronto law professor, says
 * Non-disclosure is a form of deception if it is the kind of thing that a reasonable person would expect to be disclosed... If the Crown can show that the accused knew that he was imposing this kind of risk of death on them, and was indifferent to the risk, then that would probably be sufficient to satisfy the element of intent for murder.

Several Canadian courts have ruled that people who are not informed that a sexual partner is HIV-positive cannot truly give consent to sex. As a result, the death of Aziga's partners is automatically considered to be murder (instead of the lesser charge of manslaughter).

New Zealand
A New Zealand District Court ruled on 6 October 2005 that HIV-positive people need not tell sexual partners about their status so long as safe sex is practiced. In the case being ruled on, the man had used a condom during intercourse but not during oral sex. His partner had not been infected. The same man was convicted of criminal nuisance earlier for having unprotected sex with another partner without revealing his HIV status.

Pending an investigation, a 40 year old bisexual man, is thought to have infected at least five younger gay men between 2008 and 2009. Revelations came after one of the young gay men laid a formal complaint to the New Zealand police. A popular website www.gaynz.com approached the man regarding his practices. Sex venues have also shut their doors to what is being called a 'HIV predator'. On 28 May 2009 police arrested the 40 year old man accused of infecting three men with the virus and attempting to infect a fourth.

The court on June 16 heard that two more people have come forward to lay formal complaints against the man, bringing the total so far to six. The eight new charges laid against the man include that he "with reckless disregard for the safety of others caused - or attempted to cause - grevious bodily harm to five males aged 17, 20, 24, 26, and 31, plus a female aged 19." He also now faces charges of "wilfully and without justification or excuse causing in a male aged 20 and a female aged 19 a disease, namely HIV."

The trial set for 2010 will not proceed as Glenn Mills, the Auckland man accused of knowingly exposing fourteen young people to HIV, has been found dead in his Mt Eden remand prison cell on 30 November 2009. Mills was due in court for a hearing regarding the progress of the case. In recent weeks he had made two unsuccessful applications to be released on bail. He has been on remand since the first of a series of charges were laid against him on 28 May 2009.

Russia
Infecting another individual with HIV is a felony.

United Kingdom

 * For a full discussion of the issues raised in sexual transmission, see Consent (criminal law)

Transmission generally, may fall under ss18, 20, 23, 24 or 47 Offences against the Person Act 1861. As of 21 April 2006, there have been seven convictions for the sexual transmission of HIV in England and Wales under s.20 of the 1861 Act which, inter alia, criminalizes the reckless inflicting of grievous bodily harm. Five were men accused of infecting female partners during sex (including Mohammed Dica, Kouassi Adaye, Feston Konzani, Paulo Matias: three African men, two of whom were asylum seekers and one a refugee, and a migrant from Portugal), one of a man who pleaded guilty to infecting a male partner, and one (in Wales) of a woman who pleaded guilty to infecting a male partner.

In the case of Adaye, the defendant had never received a diagnosis of being HIV-positive, but he was charged on the basis that a GP had told him he was at high risk of having HIV.

In only two of the cases was there a 'not guilty' plea, and both have gone to appeal. In R. v Dica, the Court of Appeal held that a person was reckless if, knowing that they were HIV-positive, he or she transmitted HIV to a person who had not been told of the infection. It was not necessary to prove that the transmission had involved an assault for the "inflicting" of the disease. They acknowledged that there could be a higher standard of disclosure expected of someone in a relationship, compared with the "known risks" involved in casual sex. A critical discussion of the Dica case by Matthew Weait can be found here.

In R. v Konzani, the same court held that a person accused of recklessly transmitting HIV could only raise the defense of consent, including an honest belief in consent, in cases where that consent was a "willing" or "conscious" consent. In other words, the court distinguished between “willingly running the risk of transmission” and “willingly consenting to the risk of transmission.” This suggests that consent will only operate as a defense—in all but the most exceptional of cases—where there has already been prior disclosure of known HIV-positive status. A critical discussion of the Konzani case can be found here.

As of June 2006, two women have been convicted for passing on an HIV infection in the UK. The first, from Cardiff, was jailed for 2 years; the second, Sarah Jane Porter, was convicted of grievous bodily harm through the reckless transmission of HIV, and was sentenced to 32 months in prison in June 2006.

An important issue that arises where proof of transmission is required, is establishing the source of the complainant's HIV infection. Although it cannot prove the route and timing of transmission, phylogenetic analysis has been used in many trials to demonstrate how closely related HIV strains in samples taken from the defendant and complainant are. For an account of the issues and problems surrounding phylogenetic analysis in criminal investigation see the National AIDS Manual and National AIDS Trust briefing paper.

A number of presentations from the Economic and Social Research Council funded seminar series HIV/AIDS and Law: Theory, Practice and Policy (Keele University) deal with the question of criminalization. They may be found here.

Scotland
In February 2001 Stephen Kelly, an ex-prisoner and former IV drug user, was convicted of the Scots common law offence of "recklessly injuring" his former partner by infecting her with HIV. Two other prosecutions have been brought, but have been halted because one accused (Christopher Walker) was found to be mentally incapable of standing trial and the other accused is currently in Italy pending extradition.

United States
Thirty-four states have prosecuted HIV positive individuals for not disclosing HIV status and exposing another person to the HIV virus. A person's intent to infect their partner while engaging in sexual intercourse and failure to disclose his or her status is committing a crime. A person donating HIV infected organs, tissues, and blood can be prosecuted for transmission of the virus. Spitting or transmitting HIV infected bodily fluids is considered a criminal offense in some states, particularly where the target is a prison guard. Some states consider criminal transmission of HIV as a misdemeanor. These states have laws that prosecute individuals for criminal exposure of HIV: Alabama, Alaska, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Illinois  , Indiana  , Iowa  , Kansas, Kentucky, Louisiana, Maryland, Michigan , Mississippi, Missouri , Montana , Nevada, New Jersey, New York  , North Dakota, Ohio , Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Washington.

In July 2010 the White House announced a major change in its HIV/AIDS policy, a change informed by public health law research carried out by Scott Burris, professor of law at Temple University and the director of the Public Health Law Research program. The official National HIV/AIDS Strategy for the United States concluded that “the continued existence and enforcement of these types of laws [criminalizing HIV infection] run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment.”

The administration strategy credits "The case against criminalization of HIV transmission", a piece by Burris and Edwin Cameron, a South African judge, in the Journal of the American Medical Association in 2008. They wrote “The use of criminal law to address HIV infection is inappropriate except in rare cases in which a person acts with conscious intent to transmit HIV and does so.”

Consistent with the White House HIV/AIDS Strategy, there has been a growing movement to fight criminalization and HIV-specific criminal laws. In the fall of 2010, The Positive Justice Project, a campaign of the Center for HIV Law and Policy, was launched to combat HIV-related stigma and discrimination against people with HIV by the United States criminal justice system. A day-long launch meeting, held in New York, included more than 40 participants from legal, government, grant-making and community service organizations. The Positive Justice Project has since released a comprehensive manual of HIV-specific laws and prosecutions in the 50 states, District of Columbia, U.S. Territories, Federal government, and military.