Criminal transmission of HIV

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. ^[1] 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. ^[2] Laws in some countries also criminalize mother-to-child transmission of HIV during pregnancy/birth or breastfeeding. ^[3]

Modes of transmission

HIV is spread when one of these bodily fluids: blood, semen, pre-seminal fluid, breast milk, rectal fluids, or vaginal fluids of an HIV-positive person comes into contact with a mucous membrane or bloodstream of an HIV-negative person. ^[4] 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). ^[5] Undetectable viral loads are untransmittable. ^[6] Proper use of external condoms or internal condoms also greatly reduces any chance of transmission. ^[5] 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, ^[7] 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. ^{[8] [9] [10]}

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. ^[7] 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. ^[11]

From a global perspective, the U.S. and Canada account for the vast majority of reported prosecutions. ^[12]

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.^{[ citation needed ]}

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. ^[13] In other Australian states, there is no specific legislative requirement to disclose.^{[ citation needed ]}

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.^{[ citation needed ]} Only a small number of sex workers and clients have received a Public Health Order or 'management' intervention for potentially breaking the law.^{[ citation needed ]}

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), ^[14] and those done recklessly (s. 35). The definition of grievous bodily harm (GBH) ^[15] now^{[ when? ]} explicitly includes (in ss. 4(1)(c)) 'any grievous bodily disease'. ^{[16] [ failed verification ]} 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.^{[ citation needed ]}

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. ^[17]

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. ^[17] 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. ^[17] 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. ^{[17] [18]}

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. ^[19] 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." ^[19] 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. ^[17]

HIV researchers have criticized the recommendations for not going far enough to counteract the adverse effects that the current law imposes on women. ^[20] 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. ^[21]

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 ^[22] 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 ^[23] 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. ^[24] 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. ^[25]

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.^{[ citation needed ]}

Finland

The first case of criminal HIV infection in Finland was that of Steven Thomas, ^[26] a US citizen from New York, who was convicted in 1997 in Helsinki for knowingly infecting Finnish women with HIV during 1993–1996. In January 1997, Finnish police published Thomas' picture in newspapers and stated that Thomas may have infected tens or even hundreds of Finnish women with HIV. Seventeen women said they had been in unprotected sexual contact with Thomas. ^[26]

Thomas was given a 14-year prison sentence at the Helsinki court on 10 July 1997 for 17 counts of attempted manslaughter. ^[27] Thomas was found to have infected 5 of the 17 women with HIV, and was ordered to pay damages of $63,000–$73,000 to each infected victim. The sentence was widely criticised within the legal system, because under Finnish law the maximum sentence for multiple counts of attempted manslaughter is 12 years. Lauri Lehtimaja, the Ombudsman of the Parliament, gave a warning to the court judge about his misuse of the law. ^[28] The Helsinki Court of Appeal lowered the sentence in December 1997 to be 11 years and 6 months of imprisonment. The documents of the case were classified for 40 years.^{[ citation needed ]}

In 2002 Steven Thomas was quietly released and deported from Finland to an unknown location. ^[29]

A Finnish man convicted of spreading HIV knowingly through unprotected sex with many women was Aki Matti Hakkarainen. He was first convicted in 2005 and sentenced to one year and nine months in prison for attempted aggravated assault. ^[30] In August 2007, Hakkarainen was arrested by Rovaniemi police after a report from a young woman saying she had contracted HIV from Hakkarainen during unprotected sex. On 5 October 2007, police published the name and photo of Hakkarainen in newspapers in an effort to reach all women who had had sexual intercourse with him. ^[31]

In court, Hakkarainen admitted to having unprotected sex with the women but denied trying to infect them with the virus. On 22 April 2008, Rovaniemi court concluded that Hakkarainen knowingly infected five women with HIV, and in August 2008 he was found guilty of five counts of aggravated assault and 14 counts of attempted aggravated assault. He was sentenced to ten years in prison. He was also ordered to pay 45,000–55,000 euros compensation to the five women that contracted the virus. ^[32]

Germany

In the Federal Republic of Germany on 16 August 2010, Nadja Benaissa of the German pop music group No Angels admitted to sex with several men while knowing her HIV-positive status, and infecting one of those several,^{[ clarification needed ]} who subsequently brought the case against her. She faced prison, but was instead given probation (two years) and community service. Women groups were outraged at the possibility of a woman being charged for negligently spreading HIV. She denied any intent to infect, apologising profusely and saying "When I was arrested I realised that the way that I had dealt with the illness had been wrong... I made a big mistake... No way did I want my partner to be[come] infected." She stated that she concealed the infection to avoid hurting the success of her band. Benaissa has claimed she had been told by doctors that the risk of passing on the virus was "practically zero". ^[33]

Ireland

In 1995, Catholic priest Michael Kennedy alleged in his Sunday sermon in Dungarvan that a woman from London had deliberately infected numerous local men with HIV. While the consensus was that Kennedy was propagating an urban myth, ^[34] the legal implications of such behaviour were debated. ^[35] The first conviction in Ireland for reckless HIV transmission via sex was in the District Court in 2018, for a man who had unprotected sex in 2009–10 with two women without informing them of his HIV status. He had neglected to take prescribed anti-retroviral medication after a 2008 diagnosis of HIV subtype B, the same strain the two women were diagnosed with in 2010. He was sentenced to 10 years' imprisonment under s.4 of the Non-Fatal Offences Against the Person Act 1997 for "intentionally or recklessly caus[ing] serious harm to another". His sentence was overturned by the Supreme Court in 2023, on the basis that circumstantial evidence from the women and medical professionals should have been addressed with greater care "to establish there was no reasonable possibility that either of the women could have been infected another way". Both women had initially told investigators they had no other sexual partners, but later said they had other partners but always used condoms with them. ^[36]

In the 1980s and 1990s contamination of haemophilia blood products and of anti-D led to hundreds of HIV infections. Tribunals of inquiry criticised decisions by the Blood Transfusion Service Board and National Haemophilia Treatment Centre, but no criminal charges were made. ^[37]

The Non-Fatal Offences Against the Person Act 1997 addressed an increase in syringe attack muggings and abandoned used syringes by creating offences of attacking or threatening with (s. 6), possession with intent (s. 7), and placing or abandoning (s. 8) a syringe or container of blood. It is an aggravating factor for an attacker to assert the syringe has HIV-positive blood; ^[38] the victim need not perceive a risk of infection. ^[39] If there is actual transmission of blood or fluid contaminated with a "potentially life threatening disease", the penalty is life imprisonment. ^[40]

Libya

The HIV trial in Libya, also called 'the Bulgarian nurses affair', concerns the trials, appeals and eventual release of six foreign medical workers charged with conspiring to deliberately infect over 400 children with HIV in 1998, causing an epidemic at El-Fatih Children's Hospital in Benghazi, Libya. ^[41]

The defendants, arrested in 1999, were one Palestinian medical intern and five Bulgarian nurses (often termed "medics"). ^[42] All of the medics were heavily tortured for months to extract confessions. The torture process is described in details in the book Notes from Hell , ^[43] co-written by Nikolay Yordanov and one of the nurses, Valya Chervianashka. As a result, three of the medics signed confessions. They were first sentenced to death, had their case remanded by Libya's highest court, and were sentenced to death again, which was upheld by Libya's highest court in early July 2007.

A Libyan government panel later commuted their sentences to life in prison. ^[44] The six were released following a deal reached with European Union representatives on humanitarian issues. ^[45] The EU did not condone the guilty verdict in Libya against the six.^{[ citation needed ]}

On 24 July 2007, the five medics and the doctor were extradited to Bulgaria, where their sentences were commuted by the Bulgarian President Georgi Parvanov and they were freed.^{[ citation needed ]} Libya has since complained about the releases, and the issue remains^{[ when? ]} ongoing.^{[ citation needed ]} Furthermore, a controversy has arisen concerning the terms of release, which allegedly include an arms trade as well as a civilian nuclear cooperation agreement signed by French President Nicolas Sarkozy in July 2007.^{[ citation needed ]}

New Zealand

New Zealand's first case for criminal HIV transmission occurred in 1993, when Peter Mwai, a Kenyan visiting New Zealand on a tourist visa, was sentenced to seven years in prison for infecting at least two women with HIV through unprotected sexual intercourse. ^[46] Mwai came to New Zealand police attention after a woman reported she had contracted HIV after sleeping with him. Multiple women came forward saying they had unprotected sex with Mwai who had not told them he had HIV. At least two of the women tested positive for HIV. Peter Mwai was charged under existing laws, for causing 'grievous body harm' and 'reckless endangerment'. ^[47]

On 6 October 2005 a New Zealand District Court ruled that HIV-positive people need not tell sexual partners about their status so long as safe sex is practiced. In the case being ruled on, the man had used a condom during intercourse but not during oral sex. His partner had not been infected. The same man was convicted of criminal nuisance earlier for having unprotected sex with another partner without revealing his HIV status. ^[48]

In May 2009, a 40-year-old bisexual man from Auckland was thought to have infected at least five younger gay men between 2008 and 2009. ^[49] One of the infected men had laid a formal complaint to the New Zealand police, sex venues shut their doors to what was called a 'HIV predator' ^[50] and police arrested the 40-year-old man on 28 May 2009. ^[51] On 16 June 2009 the court heard that two more people had come forward with complaints bringing the total to six.^{[ citation needed ]} The eight charges included that he "with reckless disregard for the safety of others caused – or attempted to cause – grievous bodily harm to five males aged 17, 20, 24, 26, and 31, plus a female aged 19." He faced charges of "willfully and without justification or excuse causing in a male aged 20 and a female aged 19 a disease, namely HIV."^{[ citation needed ]} The trial set for 2010 did not proceed as Glenn Mills, accused of knowingly exposing fourteen young people to HIV, was found dead in his Mt Eden remand prison cell on 30 November 2009 after having made two unsuccessful applications to be released on bail in prior weeks. ^[52]

Netherlands

Three HIV-positive men, Peter Mulder, Hans Jurgens and Wim Dekker, were jailed in 2008 on charges of attempting to inflict grievous bodily harm after drugging and raping 14 men, some of whom they injected with their own HIV-infected blood. Twelve of the victims were HIV-positive or suffering from AIDS at the time of the trial. ^[53]

Poland

In Poland under Art. 161 of the Criminal Code, persons who knowingly risk infecting others with HIV are liable to be jailed up to 3 years. ^[54]

Russia

Infecting another individual with HIV is a criminal offense unless that individual knew about HIV infection beforehand and consented. ^[55]

United Kingdom

Further information: Consent (criminal law)

Transmission generally may fall under sections 18, 20, 23, 24 or 47 of the Offences against the Person Act 1861 (respectively grievous bodily harm (GBH) with intent or to resist arrest, GBH generally, poisoning (two sections), and actual bodily harm).

As of 19 June 2006, there had been seven convictions for the sexual transmission of HIV in England and Wales under s.20 of the 1861 Act which, inter alia, criminalizes the reckless inflicting of grievous bodily harm.^{[ citation needed ]} Of these, five were men accused of infecting female partners during sex, one was a man who pleaded guilty to infecting a male partner, and one (in Wales) was a woman.^{[ citation needed ]} In 2005, the 20-year-old Welsh woman was convicted of infecting her boyfriend with HIV during sex, knowing she had the infection. ^[56] In 2006, a 43-year-old woman pleaded guilty to recklessly inflicting grievous bodily harm on her 31-year-old lover. ^[56]

Only two cases pleaded 'not guilty', and both have gone to appeal. In R. v Dica ^[57] the Court of Appeal held that a person was reckless if, knowing that they were HIV-positive, they transmitted HIV to a person who had not been told of the infection, and convicted him of a total sentence of 8 years' imprisonment. It was not necessary to prove that the transmission had involved an assault for the "inflicting" of the disease. They acknowledged that there could be a higher standard of disclosure expected of someone in a relationship, compared with the "known risks" involved in casual sex. Matthew Weait has critically discussed the case. ^[58]

In R. v Konzani ^[59] the same court held that a person accused of recklessly transmitting HIV could only raise the defense of consent, in cases where that consent was a "willing" or "conscious" consent. In other words, the court distinguished between "willingly running the risk of transmission" and "willingly consenting to the risk of transmission". This suggests that consent will only operate as a defense—in all but the most exceptional of cases—where there has already been prior disclosure of known HIV-positive status. ^[60]

As of June 2006 ^[update] , two women have been convicted for passing on an HIV infection in the UK. The first, from Cardiff, was jailed for 2 years; ^[61] the second, Sarah Jane Porter, was convicted of grievous bodily harm through the reckless transmission of HIV, and was sentenced to 32 months in prison in June 2006. ^[62]

The National AIDS Trust has published a table of cases of people in England and Wales charged with reckless sexual transmission of HIV. ^[63]

In November 2017, a man called Daryll Rowe was convicted of grievous bodily harm after intentionally infecting five men with the virus and attempting to infect five more. ^{[64] [65] [66] [67]} The Rowe case has been reported as being the first case in the United Kingdom where the defendant was found guilty for intentionally rather than recklessly transmitting the virus. ^[68] In 2017, another man, Antonio Reyes-Minana, was convicted of grievous bodily harm after withholding his HIV status from two male partners. ^[69]

An important issue that arises where proof of transmission is required is establishing the source of the complainant's HIV infection.^{[ citation needed ]} Although it cannot prove the route and timing of transmission, phylogenetic analysis has been used in many trials to demonstrate how closely related HIV strains in samples taken from the defendant and complainant are. The issues and problems surrounding phylogenetic analysis in criminal investigation are discussed in a 2007 report by aidsmap. ^[70]

Presentations from the Economic and Social Research Council funded 2011 seminar series "HIV/AIDS and Law: Theory, Practice and Policy" at Keele University deal with the question of criminalization. ^[71]

Scotland

In February 2001 Stephen Kelly, an ex-prisoner and former IV drug user, was convicted of the Scots common law offence of "recklessly injuring" his former partner by infecting her with HIV. ^[72] In HMA v Deveraux (2010), the HIV positive defendant pleaded guilty to reckless injury on four counts, one of which led to the victim contracting HIV. ^[73]

United States

Main article: Criminal transmission of HIV in the United States

Criminal statutes against transmission of HIV exist primarily at the state level. These were significantly influenced by the passage of the Ryan White CARE Act which predicated federal funding for state AIDS treatment programs on states having said statutes in place. ^[74]

In July 2010 the White House announced a major change in its HIV/AIDS policy, a change informed by public health law research carried out by Scott Burris, professor of law at Temple University and the director of its Public Health Law Research program. ^[75] The Obama administration's National HIV/AIDS Strategy for the United States concluded that "the continued existence and enforcement of these types of laws [that criminalize HIV infection] run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment." ^[76]

In the fall of 2010, the Center for HIV Law and Policy launched the 'Positive Justice Project', a campaign to combat HIV-related stigma and discrimination against people with HIV by the U.S. criminal justice system. ^[77] It released a manual of HIV-specific laws and prosecutions in the 50 states, District of Columbia, U.S. territories, federal government, and military in 2010. ^[78]

On 23 September 2011, Rep. Barbara Lee (D-CA) introduced H.R. 3053, The Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act or the REPEAL HIV Discrimination Act. ^[79] The REPEAL HIV Discrimination Act calls for review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses. ^[80] The bill died in the Subcommittee on Health, ^[79] and also in 2013/2014 when introduced as H.R. 1843 and referred to the Subcommittee on Military Personnel. ^[81]

Courts have looked into the statistical probability of HIV transmission to overturn or reduce criminal sentences resulting from prosecutions. For example, on 23 February 2015, the United States Court of Appeals for the Armed Forces reversed the aggravated assault conviction of Technical Sergeant David Gutierrez upon determining, that the risk of HIV transmission through sexual intercourse was not "likely to produce death or grievous bodily harm" under the applicable statute. ^[82]

As of 2017, the Centers for Disease Control and Prevention (CDC) states that those who have undetectable levels of HIV in their blood cannot transmit the virus, but only when they are compliant with treatment. ^{[83] [84] [85]}

Criticism of criminal statutes

Research has been done on the effects of the criminalization of HIV non-disclosure. It has been demonstrated that these types of laws increase HIV stigma and negatively affect public health. ^{[86] [87]} HIV non-disclosure laws and criminalization of HIV transmission may make people less likely to access HIV testing ^[88] and less likely to disclosure their status ^[86] or discuss sexual health with a healthcare provider. ^[88] Although women only make up 10% of Canadian non-disclosure prosecutions, there is an overrepresentation of prosecuted sex workers, Indigenous women, and abuse survivors. ^[88] There is also a higher proportion of women and indigenous people involved in cases based on low levels of blameworthiness (i.e. difficult life circumstance, spontaneous sexual acts, compliance with authorities, condom use, and evidence that the accused was abused by the complainant). ^[18]

South Africa's openly HIV-positive Supreme Court Justice Edwin Cameron argued against criminalisation at the XVII International AIDS Conference in Mexico City.

See also

• Serophobia
• STD notifications in dating services
• Electronic health record (EHR)
• Criminal transmission of HIV by various people
• Undetectable=Untransmittable
• Intentional contagion of infection

References

1. "CDC : Centers for Disease Control and Prevention Homepage". Cdc.gov. Archived from the original on 7 June 2012. Retrieved 29 October 2015.
2. Burris, Scott; Cameron, Edwin (6 August 2008). "The Case Against Criminalization of HIV Transmission". JAMA. 300 (5): 578–581. doi:10.1001/jama.300.5.578. ISSN   0098-7484. PMID   18677032.
3. UNAIDS (August 2008). "Policy Brief -- Criminalization of HIV Transmission" (PDF). Retrieved 19 March 2022.
4. "HIV Transmission | HIV Basics | HIV/AIDS | CDC". www.cdc.gov. 25 September 2019. Retrieved 27 November 2019.
5. UNAIDS (July 2018). "Undetectable = Untransmittable Explainer" (PDF). Prevention Access Campaign. Retrieved 27 November 2019.
6. "U=U | United States | Prevention Access Campaign". prevention. Retrieved 28 November 2019.
7. Moono Nyambe (2005). "Criminalisation of HIV transmission in Europe: A rapid scan of the laws and rates of prosecution for HIV transmission within signatory States of the European Convention of Human Rights". Global Network of People Living with HIV/AIDS Europe. Archived from the original on 10 May 2007. Retrieved 10 January 2007.
8. Michael E. Miller (5 May 2015). "Man who knowingly spread HIV sentenced to six months. Judge calls it a 'travesty.'". The Washington Post. Retrieved 7 May 2015.
9. Marcella Lee (9 March 2015). "Man pleads no contest to willfully spreading HIV". CBS8-San Diego. Retrieved 7 May 2015.
10. Matthew Tharrett (5 May 2015). "Man Who Purposefully Infected His Boyfriend With HIV Gets Six Months in Prison". Logo. Retrieved 6 May 2015.
11. "Asia-Pacific | German sparks Thai HIV scare". BBC News. 18 October 2004. Retrieved 17 October 2011.
12. E.J. Bernard (22 July 2010). "Where HIV is a crime, not just a virus: a global ranking of prosecutions for HIV non-disclosure, exposure and transmission". INt AIDS Conference. Archived from the original on 27 April 2014. Retrieved 26 April 2014.
13. "NSW Legislation". Legislation.nsw.gov.au. Retrieved 29 October 2015.
14. "CRIMES ACT 1900 - SECT 33 Wounding or grievous bodily harm with intent". Austlii.edu.au. Retrieved 29 October 2015.
15. "CRIMES ACT 1900 - SECT 4 Definitions". Austlii.edu.au. Retrieved 29 October 2015.
16. "CRIMES ACT 1900 - SECT 35 Reckless grievous bodily harm or wounding". Austlii.edu.au. Retrieved 29 October 2015.
17. Department of Justice Canada (23 May 2018). "Fact Sheet – HIV Non-Disclosure and the Criminal Law". Canada.ca (published December 2017). Archived from the original on 24 September 2019. Retrieved 7 November 2019.
18. Department of Justice Canada (1 December 2017). "Criminal Justice System's Response to Non-Disclosure of HIV" (PDF). Government of Canada. Retrieved 20 November 2019.
19. "Committee Report No. 28 - JUST (42-1) - House of Commons of Canada". www.ourcommons.ca. Retrieved 28 November 2019.
20. Kaida, Angela; Spencer, Sarah (5 September 2019). "Recommendations on changes to HIV criminalization don't go far enough". The Conversation. Retrieved 2 December 2019.
21. Patterson, Sophie; Nicholson, Valerie; Milloy, M.-J.; Ogilvie, Gina; Hogg, Robert S.; Carter, Allison; Li, Tian; Ding, Erin; Sereda, Paul; Greene, Saara; de Pokomandy, Alexandra (21 March 2019). "Awareness and Understanding of HIV Non-disclosure Case Law and the Role of Healthcare Providers in Discussions About the Criminalization of HIV Non-disclosure Among Women Living with HIV in Canada". AIDS and Behavior. 24 (1): 95–113. doi:10.1007/s10461-019-02463-2. ISSN   1573-3254. PMID   30900043. S2CID   84844770.
22. R. v Mabior, 2012 SCC 47
23. "Canadian Criminal Law and the Non-Disclosure of HIV-Positive Status". www.aidslaw.ca. Archived from the original on 14 November 2007.
24. "Robert Lantos - Team Quebec - Sheila Copps". The Hour. Episode AR HOUR-05-12-01. 1 December 2005. CBC.
25. "Ontario man found guilty in HIV murder trial". CBC. The Canadian Press. 4 April 2009. Archived from the original on 7 April 2009. An HIV-positive Ontario man has been found guilty of first-degree murder in the deaths of two of his sex partners in what was considered a precedent-setting trial in Canada.
26. "Finnish media expose black HIV carrier.(Originated from Knight Rider Newspapers) - Knight Ridder/Tribune News Service". Archived from the original on 11 June 2014.
27. "Finland Jails American HIV Carrier - the Washington Post". Archived from the original on 18 May 2013.
28. "English Press Service". Archived from the original on 18 May 2013. Retrieved 17 October 2011.
29. Kris Clarke (January 2002). "Policying Silence, Practicing Invisibility:Migrants Living with HIV/AIDS in Finland". Social Work in Europe.
30. "Publishing photo of HIV man leads to discovery of yet another HIV-positive victim from years ago". HELSINGIN SANOMAT. Retrieved 6 January 2011.
31. "HIV spreader public image – (in Finnish)". MTV3.fi. 5 October 2007. Retrieved 6 January 2011.
32. "Finn gets 10 years for infecting women with HIV". AP – Associated Press. 25 August 2008. Archived from the original on 29 July 2020. Retrieved 6 January 2011.
33. "German singer Nadja Benaissa apologises at HIV trial". BBC News. 16 August 2010.
34. • Goldstein, Diane E. (1 August 2004). "Bad People and Body Fluids: Contemporary Legend and AIDS Discourse". Once upon a virus: AIDS legends and vernacular risk perception. Logan: Utah State Univ. Press. pp. 47–48. doi:10.2307/j.ctt4cgmww.6. ISBN   9780874215878.
    • "Do you remember 'Angel of Death'?". The Herald . Dublin. 22 March 2010. Retrieved 14 December 2023.
35. Hanafin, Patrick (1996). "The intentional transmission of the HIV Virus: the relevance of legal intervention". Irish Law Times. 14 (3): 68–70.
36. • O'Riordan, Ellen (14 December 2023). "Supreme Court quashes man's first-of-its-kind conviction for infecting two women with HIV". The Irish Times. Retrieved 14 December 2023.
    • "Non-Fatal Offences Against the Person Act 1997 s.4". Revised Acts. Dublin: Law Reform Commission. 1 November 2023. Retrieved 14 December 2023.
    • O'Malley, Iseult (14 December 2023). "Director of Public Prosecutions -v- R.K." Judgments. Dublin: Courts Service. [2023] IESC 36. Retrieved 14 December 2023.
37. • McGrath, Paul; Marshall, Donna (5 January 2023). "Tribunals of inquiry as instruments of legitimacy: A ritualization perspective". Organization. 31 (4): 603–623. doi: 10.1177/13505084221145578 .
    • "Report of the Tribunal of Inquiry into the Infection with HIV and Hepatitis C of Persons with Haemophilia and Related Matters". Department of Health. 5 September 2002. pp. 137, 166–168. Retrieved 21 December 2023.
38. DPP v Joseph Griffiths [2021] IECA 228
39. DPP v O'Brien [2016] IECA 146
40. • Non-Fatal Offences Against the Person Act 1997 ss. 1, 6–8
    • O'Brien, Mary; Dillon, Lucy; Moran, Rosalyn. "Legal Framework" (PDF). Overview of Drug Issues in Ireland 2000. p. 20. Retrieved 21 December 2023– via drugsandalcohol.ie.
41. Kovac, Carl; Khandjiev, Radko (3 February 2001). "Doctors face murder charges in Libya". British Medical Journal . 322 (260): 7281. doi:10.1136/bmj.322.7281.260/b. ISSN   0959-8138. PMC   1119524 . PMID   11157524.
42. Fred Abrahams (9 May 2005). "Photos of the Bulgarian health workers" (Press release). Human Rights Watch.
43. "Creative Writing (page 1)". www.goodreads.com.
44. "Libya commutes medics' death sentence to life in prison". AFP . New Scientist. 7 July 2007. Archived from the original on 19 August 2007. Retrieved 7 July 2007.
45. "HIV medics released to Bulgaria". BBC News. 24 July 2007. Archived from the original on 8 August 2007. Retrieved 24 July 2007.
46. "Peter Mwai". Crime.co.nz. n.d. Retrieved 26 June 2014.
47. Worth, Heather (n.d.). "AIDS and the Other: Race, Gender and Social Policy in the Peter Mwai Affair". NZ Ministry of Social Development. Retrieved 26 June 2014.
48. "Editorial: HIV and the right to know". NZ Herald. 6 October 2005. ISSN   1170-0777 . Retrieved 28 July 2020.
49. "HIV 'predator' may be bisexual". Gaynz.com. 13 May 2009. Archived from the original on 2 October 2015. Retrieved 29 October 2015.
50. "Sex venues shut doors to HIV 'predator'". GayNZ.com. 16 May 2009. Archived from the original on 18 May 2009. Retrieved 19 May 2009.
51. "Man in court accused of infecting men with HIV". The New Zealand Herald . 28 May 2009.
52. "HIV accused Glenn Mills found dead in cell". GayNZ.com. 30 November 2009. Archived from the original on 1 December 2009. Retrieved 1 December 2009.
53. "Men jailed for spreading HIV at sex orgies". Brisbane Times. 13 November 2008. Retrieved 21 March 2013.
54. "Narażenie na chorobę wywołaną wirusem HIV, zakaźną lub weneryczną (Art. 161)". Archived from the original on 1 January 2015.
55. "ПРЕСТУПЛЕНИЯ ПРОТИВ ЖИЗНИ И ЗДОРОВЬЯ - Уголовный кодекс РФ (УК РФ) от 13.06.1996 N 63-ФЗ \ Консультант Плюс". Consultant.ru. Retrieved 29 October 2015.
56. "Woman jailed for giving lover HIV". BBC News. 19 June 2006. Retrieved 29 October 2015.
57. R. v Dica [2004] EWCA Crim 1103
58. Weait, Matthew (2005). "Criminal Law and the Sexual Transmission of HIV: R v Dica" (PDF). Keele University. Archived from the original (PDF) on 29 September 2007.
59. R. v Konzani [2005] EWCA Crim 706
60. "Knowledge, Autonomy and Consent: R. v Konzami" (PDF). www.keele.ac.uk. Archived from the original (PDF) on 29 September 2007.
61. "Criminal Transmission of HIV". Avert.org. Retrieved 17 October 2011.
62. "History of HIV & AIDS in the UK 1996 Onwards". Avert.org. Retrieved 17 October 2011.
63. England and Wales, table of cases Archived 2 April 2015 at the Wayback Machine September 2014, National AIDS Trust, 5 pages
64. "UK man found guilty of knowingly spreading HIV". NBC News. Retrieved 4 December 2017.
65. "Hairdresser who 'deliberately infected lovers with HIV' says he does not remember sending chilling texts". The Independent. 3 November 2017. Retrieved 4 December 2017.
66. Watt, Holly (15 November 2017). "Man found guilty of trying to infect 10 Grindr dates with HIV". The Guardian. ISSN   0261-3077 . Retrieved 4 December 2017.
67. "Accused 'said moaning won't cure HIV'". BBC News. 3 November 2017. Retrieved 4 December 2017.
68. "Daryll Rowe guilty – but is criminal law the right way to stop the spread of HIV?". University of Portsmouth News. Retrieved 4 December 2017.
69. "Nottingham man jailed for infecting lovers with HIV". The Guardian. 15 August 2017. ISSN   0261-3077 . Retrieved 4 December 2017.
70. Edwin J Bernard, Yusef Azad, Anne-Mieke Vandamme, Matthew Weait, Anna Maria Geretti (February 2007). "The use of phylogenetic analysis as evidence in criminal investigation of HIV transmission" Archived 27 September 2007 at the Wayback Machine . National AIDS Manual and National AIDS Trust briefing paper.
71. "The Law & HIV/AIDS Project". Research Institute for Social Sciences, Keele University. 25 February 2011. Archived from the original on 20 May 2009. Retrieved 17 October 2011.
72. "HIV man guilty of infecting girlfriend". BBC News. 23 February 2001.
73. "HIV man jailed for 'reckless sex'". BBC News. 25 February 2010.
74. Carol L. Galletly; Wayne DiFranceisco; Steven D. Pinkerton (31 October 2008). "HIV Positive Persons' Awareness and Understanding of their States Criminal HIV Disclosure Laws". AIDS and Behavior. 13 (6): 1262–1269. doi:10.1007/s10461-008-9477-y. PMC   4538940 . PMID   18975069.
75. "Home". Public Health Law Research. Retrieved 29 October 2015.
76. "National Health Strategy for HIV/AIDS in the United States". obamawhitehouse.archives.gov. 16 August 2011. Retrieved 29 October 2015.
77. "Positive Justice Project | The Center for HIV Law and Policy". Hivlawandpolicy.org. Archived from the original on 22 October 2010. Retrieved 29 October 2015.
78. "Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions, Vol.1, CHLP's Positive Justice Project, First Edition, Fall 2010 | The Center for HIV Law and Policy". Hivlawandpolicy.org. Archived from the original on 27 August 2011. Retrieved 17 October 2011.
79. "H.R.3053: REPEAL Act - U.S. Congress". OpenCongress. Archived from the original on 2 October 2015. Retrieved 29 October 2015.
80. "Why Federal Legislation Matters: The REPEAL HIV Discrimination Act, 26 September 2011". Center for HIV Law and Policy. Archived from the original on 25 April 2012. Retrieved 6 December 2012.
81. "H.R.1843 - 113th Congress (2013-2014): Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act of 2013 | Congress.gov | Library of Congress". Congress.gov. 20 June 2013. Retrieved 29 October 2015.
82. Hegeman, Roxana (8 August 2017). "Lawyer: HIV assault ruling could end all such military cases". The Military Times. Retrieved 20 April 2021.
83. "HIV Treatment as Prevention - HIV Risk and Prevention - HIV/AIDS - CDC". www.cdc.gov. 18 December 2018.
84. "Those with undetectable HIV at "effectively no risk" of transmitting virus, CDC says". NBC News. 29 September 2017.
85. "HIV drugs now so effective people on them cannot transmit virus". The Independent. 9 October 2017.
86. Lazzarini, Zita; Galletly, Carol L.; Mykhalovskiy, Eric; Harsono, Dini; O'Keefe, Elaine; Singer, Merrill; Levine, Robert J. (13 June 2013). "Criminalization of HIV Transmission and Exposure: Research and Policy Agenda". American Journal of Public Health. 103 (8): 1350–1353. doi:10.2105/AJPH.2013.301267. ISSN   0090-0036. PMC   3966663 . PMID   23763428.
87. Greene, Saara; Odhiambo, Apondi J.; Muchenje, Marvelous; Symington, Alison; Cotnam, Jasmine; Dunn, Kristin; Frank, Margaret; Glum, Shelly; Gormley, Rebecca; Ion, Allyson; Nicholson, Valerie (3 October 2019). "How women living with HIV react and respond to learning about Canadian law that criminalises HIV non-disclosure: 'how do you prove that you told?'". Culture, Health & Sexuality. 21 (10): 1087–1102. doi:10.1080/13691058.2018.1538489. ISSN   1369-1058. PMID   30624133. S2CID   58610785.
88. Patterson, Sophie E.; Milloy, M.-J.; Ogilvie, Gina; Greene, Saara; Nicholson, Valerie; Vonn, Micheal; Hogg, Robert; Kaida, Angela (2015). "The impact of criminalization of HIV non-disclosure on the healthcare engagement of women living with HIV in Canada: a comprehensive review of the evidence". Journal of the International AIDS Society. 18 (1): 20572. doi:10.7448/IAS.18.1.20572. ISSN   1758-2652. PMC   4689876 . PMID   26701080.

Further reading

• Chalmers, James 'The criminalisation of HIV Transmission' 28 Journal of Medical Ethics (2002) 160; Criminal Law Review (2004) 944;
• Donegan E, Lee H, Operskalski EA, Shaw GM, Kleinman SH, Busch MP, Stevens CE, Schiff ER, Nowicki MJ, Hollingsworth CG (June 1994). "Transfusion transmission of retroviruses: human T-lymphotropic virus types I and II compared with human immunodeficiency virus type 1". Transfusion. 34 (6): 478–83. doi:10.1046/j.1537-2995.1994.34694295061.x. PMID   8023388. S2CID   11569717.
• LegalEase Collective, 'Episode 38 - The Status of Non-Disclosure of HIV Status: A Legal Analysis of Supreme Court of Canada Decisions R. v. Mabior and R. v. D.C.' LegalEase on CKUT 90.3 FM (October 2012); LegalEase on CKUT 90.3 FM - Episode 38 (October 2012) - The Status of Status
• OSI 10 Reasons to Oppose Criminalization of HIV Exposure or Transmission;
• Spencer, J.R. 'Liability for Reckless Infection: Part 1' New Law Journal (12 March 2004) 384;
• Spencer, J.R. 'Liability for Reckless infection: Part 2' New Law Journal (26 March 2004) 448;
• Spencer, J.R. 'Reckless Infection in the Course of Appeal' New Law Journal (21 May 2004) 762;
• Warburton, Damian (2004) 'A Critical Review of English Law in Respect of Criminalising Blameworthy Behaviour by HIV+ Individuals' Journal of Criminal Law (2004), 55;
• Weait, Matthew (2007) Intimacy and Responsibility: the Criminalisation of HIV Transmission (Abingdon: Routledge-Cavendish);
• Weait, Matthew 'Dica: Knowledge, Consent and the Transmission of HIV' New Law Journal (28 May 2004) 826;
• Weait, Matthew 'Criminal Law and the Sexual Transmission of HIV: R v Dica' 68(1) Modern Law Review (2005) 121;
• Weait, Matthew 'Taking the blame: criminal law, social responsibility and the sexual transmission of HIV' 23(4) Journal of Social Welfare and Family Law (2001) 441–457;
• Weait, Matthew & Azad, Yusef 'The criminalization of HIV transmission in England and Wales: Questions of Law and Policy' HIV/AIDS Policy and Law Review (August 2005)
• Weinberg PD, Hounshell J, Sherman LA, Godwin J, Ali S, Tomori C, Bennett CL (February 2002). "Legal, financial, and public health consequences of HIV contamination of blood and blood products in the 1980s and 1990s". Ann Intern Med. 136 (4): 312–9. doi:10.7326/0003-4819-136-4-200202190-00011. PMID   11848729. S2CID   26058343.

External links

• HIV and the criminal law (International resource from NAM)
• Criminal HIV Transmission Research Project Tops 100 Online Profiles
• Information concerning a number of European countries
• Information concerning England and Wales
• Canadian HIV/AIDS Legal Network
• HIV & AIDS Legal Clinic (Ontario) Canada
• The Center for HIV Law & Policy Archived 20 October 2021 at the Wayback Machine - Positive Justice Project
• NAM Aids Map - Transmission of HIV as a criminal offence
• WHO technical consultation - A report by the World Health Organization on Criminalizing HIV Transmission
• Keele University Research Institute for Law, Politics and Justice - The legal, political and social problems associated with HIV were discussed at a seminar series at Keele University in 2005/6.