Criminal prosecution for transmission of hiv the current position july 2006 tht policy division
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Criminal Prosecution for Transmission of HIV The current position July 2006 – THT Policy Division. What’s the charge?. Offences Against The Person Act (1861) Grievous Bodily Harm (used for all kinds of assault or harm)

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Criminal Prosecution for Transmission of HIV The current position July 2006 – THT Policy Division

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Criminal prosecution for transmission of hiv the current position july 2006 tht policy division

Criminal Prosecution for Transmission of HIVThe current position July 2006 – THT Policy Division


What s the charge

What’s the charge?

  • Offences Against The Person Act (1861)

  • Grievous Bodily Harm (used for all kinds of assault or harm)

  • Section 18 (intentional: up to life sentence) or Section 20 (reckless: up to 5 years)

  • Judges can also order deportation after prison for migrants; case under consideration currently

  • All prosecutions so far for reckless transmission


What s the difference

What’s the difference?

  • “Intent” means you intended to harm – difficult to prove unless statement of intent

  • Reckless simply means you didn’t take care whether you transmitted or not

  • Recklessness far easier to prove; you only need proof of transmission and no disclosure of status

  • Much of media coverage calls cases “deliberate” when only charged as reckless


Is this just about hiv and sex

Is this just about HIV and sex?

  • All successful UK prosecutions so far for HIV

  • Law doesn’t specify HIV or STIs, only “serious harm”

  • Prosecution taken (2002/3) for passing herpes; abandoned due to lack of proof, not wrongness of charge

  • Could theoretically be used for any condition that causes long term or serious harm

  • CPS only considering sexual transmission currently, but unclear what could be (theoretically) prosecuted

  • Stigma means that HIV is most likely/frequent target – all current known investigations include it


Who is being prosecuted

Who is being prosecuted?

  • All cases so far required a complaint from someone infected BUT police are starting to trawl for “victims”

  • All successful prosecutions so far heterosexual, but at least three gay ones in pipeline

  • Wide variety of complaints under investigation, in wide variety of situations – no clear pattern of “hard cases”

  • Wide variety of police & CPS practices in investigating and charging

  • Anyone found to be positive in other investigations at risk of sudden police interest re: onward transmission


Implications of judgements so far

Implications of judgements so far

  • PWHIV responsible for disclosure; no disclosure risks a charge if transmission

  • Consistent condom use may be a defence, but unclear as yet (and not seen as such by police currently)

  • Test or knowledge of status likely to be a requirement in future

  • Prosecution only likely where:

    • No disclosure

    • No/inconsistent use of condom/safer sex

    • Transmission occurs

    • Infected person makes a complaint


Confidentiality disclosure

Confidentiality & disclosure

  • Many clinicians concerned re obligations

  • Importance of understanding GMC guidance

  • No obligation to approach police

  • Medical records should only be handed over with “informed consent” of patient or by court order

  • Discussion in staff teams recommended

  • Review of promises to patients re confidentiality recommended

  • Consider how best to manage safer sex work and STI diagnosis and management with PWHIV in these circumstances


Miscarriage of justice experience so far

Miscarriage of justice – experience so far

  • Accusations in revenge for ending a relationship

  • Some newly diagnosed people encouraged to complain while in state of shock re: diagnosis

  • Accusations made as defence by people facing violence charges

  • Very poor advice by inexperienced solicitors

  • Poor practice by uninformed/inexperienced police

  • Poor practice by local CPS staff despite central advice

  • Sentencing disproportionate through lack of HIV knowledge in judiciary

  • Attempted deportation to countries without treatment access at end of sentence for some


What are tht and others doing

What are THT and others doing?

  • Working to inform PWHIV of the situation and support them

  • Working to ensure others don’t assume disclosure in sexual situations

  • Providing advice to PWHIV, clinicians and other support organisations, particularly on disclosure & confidentiality and on advice to newly diagnosed

  • Providing advice to solicitors and other involved parties

  • Collecting case studies and other research

  • Maintaining website information and updates for all


What can you do

What can you do?

  • CPS consultation later this month

  • Spread the word about what’s happening

  • Let THT Policy Team know of all and any police investigations

  • Ensure your team is well informed

  • Work with your local police liaison team to

    • improve understanding of the realities of HIV transmission

    • encourage them to talk to you if a case happens

    • Minimise HIV prejudice and be able to challenge poor practice


Lisa power@tht org uk www tht org uk prosecutions

[email protected]

www.tht.org.uk/prosecutions

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