The fallacy of discussing the criminalisation of HIV

I’ll quickly begin by pointing out that this fallacy is talking about criminalisation of HIV where what is actually being discussed is the criminalisation of reckless and dangerous behaviour which is not new or particularly worrying legal territory. Just wanted to point that out at the start so I don’t get angry internet people shouting at me because of the title.

This post is largely in response to this article by Zoe Williams in the Guardian this week regarding the trial of German pop star Nadja Benaissa who is HIV+ and had unprotected sex with a number of men between 2000 and 2004, one of whom subsequently became infected with HIV.

Her main points are that HIV is no longer fatal, that criminalisation forces HIV underground and that criminalisation is actually punishing promiscuity rather than reckless transmission of HIV.

I’ll start by giving a brief look at the law in England and Wales on the issue.

Transmission of HIV was first found to amount to grievous boidly harm in R v Dica [2004] QB 1257, so it is a very recent development relatively speaking. (Though there is a much older case on a similar issue, R v Clarence, where a husband infected his wife with gonorrhoea. Dica overruled this decision and besides, it contains lot of outdated hit about there being no such as marital rape so it’s entirely useless.)

There are two offences involving GBH under the Offences Against the Person Act 1861. These are section 20, maliciously inflicting wounds or GBH, and the more serious offence under section 18, wounding with intent.

Section 18 is largely irrelevant to the present discussion because as far as I’m aware there has been no successful prosecution for intentional transmission of HIV under s. 18, largely because of the difficulty in proving intent. Unless the defendant in such a case has written down that they intended to infect a person with HIV, or some similar evidence, it would be very difficult to prove intent.

Moving on to s. 20 which is the offence considered in both Dica and a further case, R v Konzani (which, to be brief, provides that where there is informed consent that is a defence to a charge under s.20. If you tell the other party you are HIV+ and they then carry on and have sex with you, they assume the risk of infection and whatever happens is their own damn fault.)

The actus reus of s.20 is the infliction of GBH, whcih since Dica includes transmission of HIV, so we need not dwell on the actus reus.

The mens rea is broadly referred to as malice. This is however a slightly misleading term as it implies direct ill intent. What malice means in law is that there was intention or recklessness. Recklessness here meaning that the defendant must have foreseen that they may cause some, even minor, harm.

The first of Zoe Williams’ points is something of straw man. It doesn’t matter if advances in HIV treatment mean that it is no longer fatal, the offences in question don’t require death or even the injuries to be life-threatening. Her claim that HIV is no longer fatal does not seem to be baced up by any evidence. Lisa Power of the Terrence Higgins Trust says here that ‘Life expectancy with HIV has improved’ but says nothing about it not being fatal. Yes, people diagnosed with HIV early who have access to good treatment are living longer than anyone could have predicted a decade ago but that doesn’t change matters. Being HIV+ is still going to have a profound effect on a person’s life. They will I’m sure find it difficult to have a normal physical relationship, they will have to take medication every day for the rest of their lives and there are numerous side-effects of such drugs. Even if HIV is no longer fatal (which I can find no evidence of) it it is still a chronic, highly serious disease.

Her argument that such law is punishing promiscuity rather than recklessnes does not hold water for me. The law is not talking about promiscuity here, not at all.

In fact the CPS guidelines on the issue provide that only in very narrow circumstances will a proseuction proceed. Basically if an HIV+ person takes necessary precautions (condoms throughout etc etc) then it is very, very unlikely that a prosecution would take place.

46. Evidence that the defendant took appropriate safeguards to prevent the transmission of their infection throughout the entire period of sexual activity, and evidence that those safeguards satisfy medical experts as reasonable in light of the nature of the infection, will mean that it will be highly unlikely that the prosecution will be able to demonstrate that the defendant was reckless.

So really the only situation in which a prosecution will proceed is where te follwing occur.

  1. the sex is unprotected
  2. the HIV- person was not aware of the HIV+ status of the other party
  3. there is clear scientific and factual evidence that HIV was transmitted

Some may argue that it is the duty of both parties to ensure that they are having safe sex and that the law places the burden solely on the HIV+ partner. This is broadly true. However, the HIV+ person carrying the burden is not egregious, unbalanced burdens exists across the law. I don’t think it is too  heavy of a burden for the HIV+ person to insist on safe sex. If they are deceiving a person as to their HIV status and that person insists on unsafe sex, the HIV+ partner should either a) insist on a condom or the better option b) not have sex with such an idiot.

It all comes down to the following question: Who should the law favour more; the demonstrably stupid person who has sex without a condom or the person with a contagious, very serious disease who does not inform the other and carries on and has unsafe sex?

Zoe Williams concludes her article by resorting to reductio ad abusrdum arguments. ‘Well if reckless transmission of HIV of illegal, why then isn’t genital warts?’ she says. She is setting a straw man here, judgments about reckless HIV transmission aren’t about sexual promiscuity, which is what she’s trying to say. Besides the point, the ratio decidendi of Dica is concerned with all serious sexually transmitted diseases, not just HIV, it’s just that no case has come before the courts where transmission of syphilis has led to sterility or whatever. If such a thing came about, I would imagine there would be a pretty good case for s.20 GBH. So she actually makes a valid point buried under all that ‘getting HIV is the same as getting a verrucca lol aren’t the courts silly’ nonsense.

I absolutely agree that the courts should not be concerned with questions of sexual morality (which is why is so dislike the decision in Brown) but that is not what is happening here.

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