criminal prosecution for transmission of hiv the current position july 2006 tht policy division n.
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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

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
lisa.power@tht.org.uk

www.tht.org.uk/prosecutions

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