First conviction for HIV transmission raises a lot of difficult questions

HIV - Still Not a Crime

The first conviction for HIV transmission in England and Wales raises a lot of difficult questions.

George House Trust has consistently opposed the criminalisation of HIV. Sex between consenting adults is legal. Criminalisation of HIV transmission puts all the responsibility on people living with HIV. This, quite simply, is wrong. Every adult has responsibility for their own consenting sexual behaviour and for protecting themselves. By finding this man guilty of grievous bodily harm for "knowingly" passing on the virus, the courts have effectively given the impetus for HIV to be driven further underground. This court case does absolutely nothing to improve public education about HIV. It does nothing to help create an environment where people with HIV can live without discrimination. It will mean fewer people being open about their HIV status; fewer people taking HIV tests so that they cannot ’knowingly’ infect someone; and fewer people benefiting from support and life-saving health care.

What’s the law?

The man at the centre of this case was prosecuted for GBH (grievous bodily harm) under a law over 140 years old, the Offences against the Persons Act 1861. It was proved that the two women did contract HIV from this man. If they hadn’t become infected or it couldn’t be proved he had infected them, he couldn’t have been found guilty. But should the transmission of HIV be considered as "grievous bodily harm"? The words "grievous bodily harm" are not defined by the law. When there is no legal definition, the way English law works means courts have to look at how similar cases in the past have been decided, and use the ordinary meaning of the words, literally by looking up what they mean in a good dictionary.

In an important appeal decision on an earlier case in 1888, about a man passing gonorrhoea to his wife, a conviction for GBH due to reckless transmission was overturned. The appeal court judges didn’t think any sexually transmitted disease could be "grievous bodily harm". This ruling set the precedent for the following 115 years, until now.

What is odd about this new case is that this established legal ruling was overturned and the judge allowed the jury to accept the idea that this case was new and different because it was a "biological" grievous bodily harm. The STI transmitted in 1888 was also "biological", although then it was gonorrhoea. A series of cases since this original ruling were used by the court in the latest decision to overturn this. The trend of these other rulings has been steadily moving towards the idea that passing on an STI without telling your partner can be both an assault and grievous bodily harm. Add to this the Spanner ruling in 1992, which dealt with GBH for sado-masochistic behaviour, when it was decided that you cannot give legal consent to an assault on yourself. This makes things even more confused because it would mean that sometimes even when an HIV positive person discloses his or her status to a partner, that partner cannot legally consent to unprotected sex. The waters simply become more and more muddied, and show why the judicial system cannot effectively deal with the issues surrounding consensual sex between adults. At the very least, the government needs to update the 1861 Act, so that everyone can be really clear about what consenting adults may and may not do in the privacy of their relationships.

So who’s right here?

In making our arguments against criminalisation, we emphasise that George House Trust exists to promote the best quality of life for people with HIV. We do not forget that there are three HIV positive people at the centre of this situation. All three are living with HIV, and the impact of this cannot be underestimated. As agencies, we must ensure that the services are there to support people to come to terms with their diagnoses, make informed choices about the future, and empower people to feel that there is still life with HIV.

Some people might judge the man at the centre of the case to be lying and manipulative, but is he a criminal for having unprotected sex knowing he was HIV positive? Where does that line of thinking end? Is there any other disease that would carry this sentence, or is this just further evidence of the public’s abiding hatred and fear of anything to do with HIV and AIDS? We know from surveys that the majority of people expect someone with HIV to disclose their status prior to having sex. We also know that people who disclose their status often face discrimination, rejection and ostracism. These two facts add up to a situation solved only by us taking responsibility for our own sexual choices; by not relying on the assertions of sexual partners, but by making up our own minds about the sexual choices open to us. The case demonstrates the huge levels of ignorance about the virus. Whatever people may feel on a personal level about the actions of this man, what is clear is that the two women involved, and indeed the population at large, do not understand the facts regarding not just the transmission of HIV, but of other sexually transmitted diseases. This lack of education must be addressed. It is the most effective way of stopping the spread of HIV. Throwing people in prison can only happen after the virus has been transmitted. It may serve to fulfil the anger of an individual, but it seriously undermines the efforts we are all making to end discrimination against HIV positive people.

We must also remember that police, prosecutors, judges and juries come from a society where fear, misunderstanding, and hysteria about HIV and AIDS has been prevalent for the past twenty years. The tabloid press is generally negative in its reporting of HIV-related stories, and that permeates and influences the opinions of the very people who may have to decide the guilt or innocence of an HIV positive person. It’s hard to imagine how anyone could receive a truly fair trial in this climate.

What needs to be done now?

The lawyers have said that they will appeal against conviction and it is likely to go all the way to the House of Lords for a final decision. We must support this appeal, and do all we can to have this conviction overturned. It is not simply a case of right or wrong. There is a public health crisis with rapidly rising numbers of people with HIV. For every new infection that will be stopped by the threat of prosecution, many more will occur as people refuse to test, fearfully steer clear of disclosure, and the majority fail to take responsibility for their own sexual well-being, having been lulled into a false sense of security by a rarely enforced law.

The real crime here is discrimination against people living with HIV. George House Trust will continue to campaign against the prosecutions of HIV positive people. We urge you to do the same.

Michelle Reid is Chief Executive of George House Trust