During the last decade, more and more countries have begun using criminal laws to prosecute people for transmitting HIV or for exposing another person to the risk of contracting HIV (even when transmission does not take place). Hundreds of people living with HIV have been subjected to criminal investigation and prosecutions. Many have received jail sentences.
Countries have used the law to criminalize HIV in different ways. Some created HIV specific laws or offences. Others have relied on existing offences under the criminal law (such as assault, grievous bodily harm or poisoning), applying those laws to HIV exposure or transmission.
Using the criminal law to police the intimate aspects of consensual relationships can be difficult and intrusive. The criminal law often takes a very simplistic and blunt approach to sensitive and complex issues. Criminal laws come with a set of rules (such as definitions, concepts and rules of evidence) meaning that cases hinge as much on the mechanism of the law as on the details of the case itself.
Although laws differ from country to country, a number of key terms and distinctions within the criminal law are often relied upon:
Transmission charges relate to cases where HIV has been transmitted from one person to another.
Note: Many transmission cases have been decided without expert scientific evidence being heard. It is extremely difficult to prove that one person transmitted HIV to another. Scientific evidence cannot conclusively prove that a particular person transmitted HIV to another person (although in some instances it can prove that they did not).
Exposure charges are used in cases where HIV has not been transmitted, but where prosecutors claim that a person put another at risk of contracting HIV.
Note: HIV transmission does not automatically result from a single instance of unprotected sex. In fact in many instances the chances of HIV transmission taking place are low or non-existent. It is increasingly recognized that successful HIV treatment can dramatically reduce the 'infectiousness' of HIV.
Learn more about the impact of treatment on reducing the likelihood of HIV transmission here.
Nevertheless, in some countries exposure prosecutions continue. For example in the USA people living with HIV have been prosecuted for exposure for spitting, scratching or biting another person; even though in such cases there was no actual risk of HIV being transmitted.
Recklessness charges allege that a person acted recklessly, irresponsibly or without concern that they could transmit HIV.
Depending on the country, recklessness charges can be used to prosecute HIV transmission and/or exposure (risk of HIV transmission).
Note: These charges have the potential to criminalize a wide range of behaviour as ‘recklessness’ may be interpreted in many different ways. In some countries people can be charged even if they have used condoms during sex.
Intentional charges claim that a person deliberately set out to transmit HIV to another person and wanted to cause them harm. These cases are rare.
Note: Media coverage of ‘reckless’ cases often blur the distinction between ‘intentional’ and ‘reckless’ HIV transmission, suggesting ‘intentional' transmission is far more common than it is. In fact there have been very few successful prosecutions for intentional transmission of HIV through sex.