Criminal transmission of HIV is the intentional or reckless infection of a person with the human immunodeficiency virus (HIV). This is often conflated, in laws and in discussion, with criminal exposure to HIV, which does not require the transmission of the virus and often, as in the cases of spitting and biting, does not include a realistic means of transmission. Some countries or jurisdictions, including some areas of the U.S., have enacted laws expressly to criminalize HIV transmission or exposure, charging those accused with criminal transmission of HIV. Other countries charge the accused under existing laws with such crimes as murder, manslaughter, attempted murder, assault or fraud.
Criminal transmission of HIV is now better known as HIV non-disclosure, which is the criminal offence in some jurisdictions for not disclosing an HIV positive status. This can be intentionally or unknowingly not disclosing HIV status and then exposing or transmitting HIV to a person. HIV non-disclosure includes intentional transmission, accidental transmission, unknowing transmission (where the source individual is unaware of their infection), and exposure to HIV with no transmission. Individuals have been accused of and charged for HIV non-disclosure even if no harm was intended and if HIV was not actually transmitted. Laws in some countries also criminalize mother-to-child transmission of HIV during pregnancy/birth or breastfeeding.
Modes of transmission HIV is spread when blood, semen, pre-seminal fluid, breast milk, rectal fluids, or vaginal fluids of an HIV-positive person come into contact with a mucous membrane or bloodstream of an HIV-negative person. HIV transmission can occur via: Unprotected sexual intercourse Sharing needles or other equipment in injection drug use Intentionally attacking people with HIV infected needles Mother-to-child during pregnancy, childbirth, or breastfeeding Receiving a blood transfusion or organ donation – although this is unlikely because blood and organ donations are extensively tested for HIV
Reducing chance of transmission Having a low viral load decreases the chance of transmitting HIV. A person living with HIV who is taking effective antiretroviral therapy will have a viral load that becomes so low, it is undetectable (less than 50 copies of virus per milliliter). Undetectable viral loads are untransmittable. Proper use of external condoms or internal condoms also greatly reduces any chance of transmission. The correct use of PrEP (pre-exposure prophylaxis) can dramatically reduce the chances of transmission for both sexual contact and intravenous drug users.
Legal situation In many English-speaking countries and in most of the states who have signed the European Convention of Human Rights, knowingly infecting others with HIV can lead to criminal prosecution. One such case is that of Thomas Guerra, an American landscape architect, who became the first person in the state of California to be convicted for intentionally infecting another individual with HIV. In court, prosecutors presented 11,000 text messages and 36 audio clips to support their case against Guerra. Since then, Guerra has been accused of intentionally exposing dozens of other men to HIV.
In a 2004 survey of the latter group, the Global Network of People Living with HIV/AIDS found that at least one prosecution had occurred in about half of these countries, and that in Finland, Sweden and Slovakia, about 0.5% to 1% of all people reported to be living with HIV/AIDS had been prosecuted for alleged intentional or "negligent" transmission of HIV. In many developing countries such as Thailand where the HIV/AIDS pandemic has been much more serious, laws regarding criminalisation of intentional transmission have been either weak or non-existent.
From a global perspective, the U.S. and Canada account for the vast majority of reported prosecutions.
Australia In Australia the regulations concerned with the transmission of HIV are found in two sources, the Public Healths Acts and in the criminal law.
New South Wales The New South Wales (NSW) Public Health Act from 2010 regulates under section 79 that a person with HIV must disclose their status to all sexual partners. Under section 79(3) it is a defence, if the court is satisfied, that the defendant took reasonable precautions to prevent the transmission. In other Australian states, there is no specific legislative requirement to disclose.
Interventions may range from counseling through to restrictive orders, with detention as a last resort. If talking about the problems of practising safe sex does not help, the doctor may obtain a Public Health Order to manage the behaviour of the HIV positive person. Only a small number of sex workers and clients have received a Public Health Order or 'management' intervention for potentially breaking the law.
Under the criminal law, a person with HIV is criminally liable for prosecution if they have intentionally transmitted the virus to their partner without informing them of their status. In NSW the relevant offences are separated into those done intentionally (s. 33 of the Crimes Act 1900), and those done recklessly (s. 35). The definition of grievous bodily harm (GBH) now explicitly includes (in ss. 4(1)(c)) 'any grievous bodily disease'. This means that the infliction of grievous bodily harm refers to causing a person to contract a grievous bodily disease. Under section 33 a person who intends to inflict grievous bodily harm on another person can be imprisoned for up to 25 years while under section 35 a person who recklessly causes another person grievous bodily harm can be imprisoned for up to 10 years and 14 years if in company. This can include causing someone to be infected with HIV. A person is generally deemed as reckless when they are aware that there is a risk that another person may be caused as a result of their actions, but they proceed to act anyway.
Canada Though the Canadian criminal code does not contain any HIV-specific offences, undisclosed HIV transmission and exposure have been prosecuted as aggravated assault, aggravated sexual assault and other offences.
Current law and policy Commonly referred to as "HIV non-disclosure", criminal transmission of HIV in Canada is defined as a "realistic possibility of transmission" of HIV during sexual intercourse. The Supreme Court of Canada defined "no realistic possibility of transmission" as (1) using a condom and (2) having a low or undetectable viral load. However, the threshold for a low viral load was not defined until 2017 when the Criminal Justice System's Response to Non-Disclosure of HIV made conclusions about the current laws on HIV non-disclosure including that people with low viral loads (under 200 copies of HIV per milliliter of blood) should not be convicted under the criminal law.
In 2019, the House of Commons Standing Committee on Justice and Human Rights released a report on the criminalization of HIV non-disclosure in Canada with four recommendations for the House of Commons and the Canadian Government. The committee recommended that a new law be created specifically for the transmission of HIV, instead of relying on pre-existing laws such as sexual assault. They recommended that this law be applicable only when HIV is actually transmitted and "HIV non-disclosure should never be prosecuted if (1) the infected individual has an undetectable viral load (less than 200 copies per millilitre of blood); (2) condoms are used; (3) the infected individual's partner is on PrEP or (4) the type of sexual act (such as oral sex) is one where there is a negligible risk of transmission." This allows for four different scenarios in which HIV positive people will not have to disclose their status because of the nature of the sexual encounter; current laws only allow for one specific scenario with multiple requirements.
HIV researchers have criticized the recommendations for not going far enough to counteract the adverse effects that the current law imposes on women. Although people living with HIV are generally aware of non-disclosure laws, many do not fully understand the law or understand when they do or do not have to disclose their status.
History The first notable case of HIV non-disclosure is R. v Cuerrier, where the defendant was charged with aggravated assault and sexual transmission of HIV under section 268 of the Criminal Code. The Supreme Court found that the trial judge had misdirected himself and ordered a new trial on two counts of aggravated assault but in May 1999, the British Columbian Attorney-General announced that a new trial would not take place. The Court's ruling caused difficulty because even though it only concerned non-disclosure of HIV-positive status in sexual situations, it unanimously rejected the English authority of R. v Clarence, with L'Heureux-Dubé stating that any fraud could vitiate consent to all types of assault because the autonomy and physical integrity of the person has been violated. Thus, because the Canadian legislature has declined to criminalize the transmission of HIV, the judiciary must address the issues as and when they arise.
R. v Mabior is the Supreme Court of Canada's most recent decision outlining criminal liability for serostatus nondisclosure. After being diagnosed with HIV in 2004, Clato Mabior underwent aggressive antiretroviral therapy and was adhering to treatment at the time of pursuing sexual relations with multiple partners between 2004 and 2006. Despite intermittent condom use, HIV was never transmitted to his partners. Ultimately, the Court convicted Mabior with six counts of aggravated sexual assault.
Subsequent legal precedent has established that failure to disclose HIV-positive status, combined with failure to utilize protective measures (condom use), is sufficiently fraudulent behaviour to constitute turning "consensual" sex into aggravated sexual assault, since the other party has been denied the information necessary to give properly informed consent. The Court's vague justification for serostatus disclosure under circumstances that lead to "significant risk of bodily harm" remained a particularly contentious issue in the aftermath of Cuerrier. Because Cuerrier did not expressly define "significant risk", lower courts inconsistently criminalized HIV-positive defendants based on varied interpretations of the clause. In large part, Mabior represents a response to Cuerrier and an attempt to sharpen the criteria. In Mabior, the Court found that "significant risk of bodily harm is negated if (i) the accused's viral load at the time of sexual relations was low or undetectable, and (ii) condom protection was used."
On 1 December 2005, Jian Ghomeshi filed a report on this issue for the CBC. He asked whether there is a legal obligation to disclose HIV status. He held up the case of Johnson Aziga, who was diagnosed in 1996 but then allegedly had unprotected sex with at least 13 women. Aziga was charged with two counts of murder and 11 counts of aggravated sexual assault; the prosecution claims that he did not disclose his status. In 2009, Aziga was found guilty of the 2 counts of first-degree murder, 10 counts of aggravated sexual assault and 1 count of attempted aggravated sexual assault.
Several Canadian courts had ruled that people who are not informed that a sexual partner is HIV-positive cannot truly give consent to sex. As a result, the death of Aziga's partners was automatically considered to be murder instead of the lesser charge of manslaughter. However, in Mabior the Supreme Court rejected the view that consent will always be vitiated by non-disclosure of HIV-positive status, substituting the rule that there will be no consent only if in addition to the non-disclosure there was a realistic possibility of transmission of HIV.
Colombia