Criminal Transmission of HIV/AIDS: The Legal Aspect

For those living with Human Immunodeficiency Virus/Acquired Immune Deficiency Syndrome, preventing others from becoming infected too could be a major source of concern. However not all HIV positive people take the precautions that they should to avoid transmitting the virus to others. Stories of people deliberately and recklessly transmitting the virus to others abound and a good number of them have also been criminally charged and imprisoned for their actions. The latest addition to the scare story is that of a famous German pop singer, Nadja Bernaissa who was arrested recently.

On April 11 2009, Nadja was arrested in Frankfurt, Germany shortly before she was due to give a solo performance, on the allegation of criminal transmission of HIV. Later appearing in the court the presiding judge ruled to have her remanded in custody on the ground that she could repeat the offence. The public prosecutor said the singer was being held because of the ‘urgent suspicion that the accused had unprotected sexual intercourse with three people in the years 2004 and 2006 without telling them beforehand that she was HIV positive’. She could face up to 10 years in prison under German law if found guilty.

This case is not a peculiar one. Couple of months earlier a court in Victoria, Australia sent a man to prison for 18 years on the ground of intentional and reckless transmission of HIV. Michael Neal, 50, of Coburg, was found guilty by a county court jury on 15 counts, including two of rape and eight of trying to infect another person with HIV. The court heard that Neal arranged ‘conversion parties’ and had unprotected sex without revealing he had HIV. County Court judge David Parsons jailed him for 18 years and nine months saying his offending behaviour continued up until his arrest despite repeated warnings from health authorities.

In Miami, Florida a man was arrested and charged for having sex with a woman without disclosing his serostatus to his partner. Miguel Barrie, 37 was charged under Florida ‘Fla. Stat. Ann. § 384.24(2)’ law which states that ‘It is unlawful for any person who has HIV, with knowledge of such infection and having been informed that he or she may communicate it to others through sexual intercourse, to have sexual intercourse with any other person, unless the other person has been informed of the presence of HIV and has consented to the sexual intercourse’.

In Nigeria, a 29 year-old man from Umuahia, Abia State was recently sentenced to two years in prison for rape and indecent assault charges after raping an eight year-old girl who subsequently tested HIV-positive. Sentencing him the presiding magistrate, Kanu Onuma, observed that the offence was committed last year, while the charge was brought to the court in April 2009. This made it hard for him to sentence the accused on the ground of rape because the law is that rape charges must be brought to court not more than two months after the offence was committed. He therefore sentenced the accused not for rape but for indecent assault and further transmitting HIV to her.

Round the world same stories abound leading many countries into making it a criminal offence for knowingly, intentionally and recklessly transmitting HIV/AIDS to others. Some of these countries went an extra mile in making it very difficult for offenders to plead ignorance. In these countries, the intentional or reckless infection of a person with the virus is considered to be illegal and those found guilty can be charged with either criminal transmission of HIV/AIDS, manslaughter, murder, attempted murder or assault. Some states have enacted laws expressly to criminalize this, as in the United States, while others charge under the existing laws, as in the United Kingdom.

For over 25 years, AIDS has ravaged the lives and livelihoods of millions of people. Since the early 1980s, nearly 30 million people have died from AIDS while every effort made so far to get a cure for it has proved futile. However in the last few years a great advancement in the field of research has led to manufacturing of drugs that could enable the victims of the diseases to live healthily and as long as they could. More are still to be done because there is no cure yet.

Testing to know one’s serostatus remains the only way to know if someone is infected or not. As a result most countries have placed the responsibility of knowing their serostatus on the individual and therefore less likely to accept ignorance as a defence in the court of law. Apart from HIV/AIDS, prosecutions are also possible for the transmission of other sexually transmitted infections like hepatitis B and C.

In the United Kingdom particularly in England and Wales the law in use for prosecuting the criminal transmission of the virus is the 1861 Offences Against the Persons Act. In Scotland which has its own unique legal system charges are made under the Scottish Common Law offence of Reckless Injuring. Of course these laws do not specifically mention people living with HIV/AIDS because the virus was only discovered about 25 years ago. However recent judgements, landmark ruling and judicial interpretations especially in England and Wales are in agreement that criminal transmission of HIV/AIDS falls under the 1861 law.

Transmission generally, may fall under Sections 18, 20, 23, 24 or 47 of the Offences Against the Person Act of 1861. However, there have been several convictions for the sexual transmission of HIV in England and Wales under Section 20 of the 1861 Act which, inter alia, criminalizes the reckless inflicting of grievous bodily harm. Five of these convictions were of 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. Another woman, Sarah Jane Porter, was convicted of grievous bodily harm through the reckless transmission of HIV, and was sentenced to 32 months in prison. 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 were there a 'not guilty' plea, and both went 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. 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.

In R. v Konzani, the same court held that a person accused of recklessly transmitting HIV could only raise the defence 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 defence-in all but the most exceptional of cases-where there has already been prior disclosure of known HIV-positive status.

Under the 1861 law, there are specifically two possible offences highlighted therein. The first is the offence of reckless transmission as outlined under Section 20 while the second is intentional transmission as outlined under section 18. Therefore the crux of the matter here is that for one to be held liable for criminal transmission of HIV/AIDS in England and Wales, the prosecutors must prove beyond reasonable doubt that there was an intention ab initio on the part of the defendant to transmit the virus intentionally and recklessly.

However since the first person in England and Wales was imprisoned for recklessly transmitting HIV/AIDS to a partner, there has not been a successful prosecution for intentional transmission and part of the reason is that in the court of law, it is often impossible to prove an intention behind any crime unless the defendant suddenly decides to provide the information. This however does not happen often. For intentional transmission to be proved it would need to be shown that the accused actually and maliciously wanted to give the other person the virus. From the nature of this offence nobody may end up being prosecuted for intentional transmission since the circumstance is not only rare but could as well be difficult to prove.

Similarly there is also a possibility of a charge of ‘attempted intentional transmission’ where even in the absence of infection someone can be convicted of trying to infect someone. Again this case has not ever been recorded within the English legal system. On the other hand a good number have been successful prosecuted for reckless transmission as noted at the outset. Under this circumstance however, the prosecutors are also expected to prove that the defendant did in fact infect the complainant, that the defendant was aware of the danger of transmission at the relevant time and that the complainant did not consent to that risk.

The requirement that the prosecutor must prove that the defendant actually infected the complainant is problematic especially in cases where the two parties involved are not faithful. Partners in an open relationship would find it absolutely difficult to prove this first requirement but for those who are faithful to each other, that could be a little easier though often very difficult too since the virus could be transmitted through other means apart from sexual transmission.

However recent advancements in HIV/AIDS studies could solve this problem through a complex scientific test known as Phylogenetic Analysis. Through this process the viruses of both the complainant and defendant are compared. If the two viruses appear to be different then this proves that there was no HIV transmission between the two parties and therefore no crime. If however they appear to be similar, it means that the HIV transmission from the accused to the complainant could possibly have taken place but it does not always prove it. It is still possible the complainant in fact transmitted HIV to the accused or that both were infected by another person or other people sharing the same type of virus.

Usually before the commencement of the court proceedings, an investigation of the past sexual contacts of both parties are ordered, to decide whether it can be proved beyond reasonable doubt that it was the accused and not someone else who infected the complainant. This could be very uncomfortable because not only will your sexual history be exposed, anyone with whom you have had sex before testing HIV positive will have to be contacted and blood samples taken to rule out the possibility that they infected you.

The process can be intrusive and distressing for both the accused and the complainant and since it could be difficult to prove that one person infected another, it may not result in a conviction. This is a very difficult situation and often difficult to prove which is why it has been rare for someone who pleads not guilty to be found guilty of this offence after all.

Besides, where the complainant can prove that he or she was infected by a partner who is HIV positive, the court would also require him or her to prove that there is also either a case of reckless transmission or intentional transmission and that he or she was forced to perform the act that led to the transmission. If the defendant did not use any form of protection during the sex that could be an advantage for the prosecutors since that could be a clear case of reckless transmission. However, a consensual protected sex may not pass as a defence before a judge if the defendant did not disclose his/her serostatus prior to the act.

The reasoning behind this is very simple. It is possible on very few occasions for someone to get HIV even when a condom is used, for example when it slips or breaks, but as long as the condom was being used with good faith in its effectiveness there is no crime. The law is not yet clear as to what to do if you have HIV and you notice that the condom has slipped or broken during sex. However the best thing to do especially for your partner and from the legal perspective is to rush to a sexual health clinic and ask for PEP (Post-exposure prophylaxis) which is a month-long course of treatment capable of halting the transmission of HIV within the first 72 hours of infection.

It is also very possible to hold a person liable for reckless transmission of HIV/AIDS even if the person is not aware he is HIV positive. Under this circumstance, the court is making a case that it is the responsibility of individuals to look after their sexual health and ensure that at all time they are aware of their serostatus since their body belongs to them. This line of argument is not far from the principle of ‘Ignoratia legis non excusiat’, which could be translated under this circumstance to mean that one’s inability to know about their sexual health or serostatus is never an excuse or a ground for leniency in the court of law. The court in this case holds the defendant culpable for being careless with his or her sexual life and as a result recklessly endangering other people’s life.

Things are much easier for the defendant if he can prove to the presiding judge that prior to the sexual act, he informed the complainant of his serostatus or doubt surrounding this. In this case the court is much likely to throw the case away in favour of the defendant since a case of either intentional or reckless transmission cannot be proved.