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Deficiencies in response to immunodeficiency: Criminal Law and HIV

November 10, 2015

Since 2001 there has been a turn to the criminal law in an attempt to tackle the public health problem of the transmission of Human Immunodeficiency virus (HIV). This has led to great debates between legal professionals, HIV organisations and medical professionals. This article seeks to evaluate this approach and suggests tht criminal law intervention is neither effective nor appropriate in tackling the issue of HIV.

Eilidh Smith is a 4th Year LLB student and is sub-editor for the Criminal Law portion of the Law Review.

In 2001, the first prosecution for reckless transmission of Human Immunodeficiency Virus (HIV) in Scotland was a significant development in the criminal lawAnchor. Since then four men have been prosecuted for reckless transmission under the common law offence of ‘Culpable and Reckless Conduct’Anchor. This paper seeks to examine this development and the debate which surrounds it. Is resort to criminal law the most appropriate response in tackling transmission of the virus?

Such prosecutions are not unique to Scotland. Whilst the first case in the UK was a Scottish case, English law has responded similarly. Further, many jurisdictions throughout the world have seen similar prosecutions. Thus, while this paper has a Scots law perspective, the issues raised in the debate surrounding criminalisation are not unique to Scotland.

The Law

The transmission of the HIV virus has been prosecuted in Scotland under the common law offence of ‘Culpable and Reckless Conduct’. The Crown Office and Procurator Fiscal Service (COPFS) guidanceAnchor states that this would be found where it can be proven that: the victim contracted the infection; the accused had knowledge that he/she had the infection; and the accused acted with the requisite degree of recklessnessAnchor. The requisite degree of recklessness is said to be “gross or wicked, or criminal negligence, something amounting to, or at any rate analogous to, a criminal indifference to the consequences”Anchor.

The development of the common law to prosecute the transmission of HIV has raised a number of issues that have yet to be tested before a court. It is yet to be seen whether the fact there was fully informed consent to unprotected sex would influence a court’s verdictAnchor. The COPFS guidance states clearly that “[c]onsent on the part of the victim […] is not a defence to a charge of assault or culpable and reckless conduct in Scots law”Anchor. This appears to follow the precedent regarding assaultAnchor. Nonetheless the COPFS undertakes that there will be a “strong presumption against prosecution” where it can be shown that: the “victim had knowledge and understanding of the accused’s infection status and the risk of transmission […]; the victim freely consented to undertake the risk; there is no evidence to suggest that the victim is vulnerable or has been coerced, exploited or had any form of control exerted over him or her […]; [and] there are no other circumstances to suggest that the consent was either not fully informed or freely given”Anchor. Thus the COPFS does appear to limit the potential scope of the law to prevent it from operating unjustly. While this may be reassuring policy guidance it remains to be seen how it may operate in practice.

Further, there is not sufficient clarity on the issue of whether the use of a condom which fails would be a defence against recklessness. The COPFS guidance states that evidence that precautions such as the use of condoms were taken would make it “unlikely that the requisite degree of recklessness will be established”Anchor . Again, it remains to be seen how this would be interpreted in court.

While this relatively restrictive understanding on the part of the COPFS may be reassuring on the level of legal principle, it cannot be said to give real assurance to those who have become the subject of the law. This lack of clarity in the law places people living with HIV (PLWH) in an unjust and unfair position – by the very nature of their HIV status they are at risk of malicious accusation and prosecution, there is no clear law for them to abide by.

While the current requirements set out in the COPFS guidance state that the accused must be proven to have knowledge of their HIV status, a grey area in the law may arise where someone has been informed that they present symptoms of the virus yet it has not been diagnosed. In such cases it may be foreseeable that the law will develop a standard of ‘reason to believe’ one may carry the virusAnchor. Indeed this became an issue in English law when the prosecution of Kouassi Adaye relied on the fact that a doctor had recommended an HIV test, which was not taken. However the issue was not addressed as the accused pleaded guiltyAnchor. Such an extension to allow for prosecutions where there was reason to believe the accused carried the virus would be arbitrarily unjust. Thus, the constraint that the COPFS has imposed in their guidance, with the inclusion of a requirement of knowledge, is welcomed to this extent.

There is a further worrying element that, regardless of transmission, mere exposure of another to the HIV virus may give way to criminal proceedings. While the COPFS guidance states that cases of exposure alone would have a “very strong presumption against prosecution”Anchor, it, nonetheless, would be possible. Indeed the most recent prosecution for reckless HIV transmission consisted of one charge for reckless transmission and a further three for reckless exposureAnchor. While it may be said that this case would be rare, this prosecution does nothing to relieve anxiety amongst PLWH nor to reduce the stigma around the virus.

Is Criminalisation Appropriate?

The development of the criminal law may be said to have the aim of protecting public health and acting as a deterrent to those infected from acting recklesslyAnchor. While this is a legitimate aim, is the criminal law best placed to achieve such an aim? National AIDS Trust (NAT) states, in no uncertain terms, “[t]hese prosecutions undermine the efforts to stop the spread of HIV and increase stigma”Anchor.

NAT opposes criminalisation for three main reasons: it “unjustly targets diagnosed HIV positive people and fails to reflect the broader shared responsibilities for sexual health and HIV infection”; “prosecutions for reckless HIV transmission do not result in reductions in HIV transmission or any benefit to public health – in fact they undermine effective public health activity”; and “prosecution for reckless HIV transmission in practice results in miscarriages of justice, victimisation and discrimination”Anchor. These contentions will be the focus of discussion.

(1) It unjustly targets diagnosed HIV positive people and fails to reflect the broader shared responsibilities for sexual health and HIV infection

A similar argument was raised in a Scots Law Times articleAnchor long before any prosecutions had occurred. Here the writers argued “the responsibility for preventing the spread of the virus rests with the whole community and this should be recognised in law”Anchor. Chalmers submits such a contention is “reduction ad absurdum”Anchor. He puts forward the example of a married couple where the woman is unaware of her husband’s HIV status when she consents to unprotected sexAnchor. This point is understandable – while the wife in this case would bear responsibility for self-protection in general, she is in a relationship of trust where she believes, in good faith, that her self-protection is unnecessary. Further, Chalmers asserts that the contention contains an assumption that the negotiation of condom use is a fair and equal one and thus ignores the possibility of power imbalances in a relationship which prevent a person from effectively bearing responsibility to protect themselvesAnchor. While Chalmers’ rebuttals are proper considerations, the contention remains that the criminal law may not be an appropriate way of tackling these issues.

Further, while the examples put forward by Chalmers clearly show that there may be times where it is impossible for the sexual partner of a PLWH to take responsibility for self-protection, the same can be said for the PLWH. The assumption that the PLWH is always in control or with power is not a realistic assumption and the power imbalances in the relationship may make it impossible for the PLWH to take precautions to protect their partner from transmission and themselves from criminal liability.

This suggests that criminal law may fail to reflect the realities of sexual relationships. Indeed Chalmers himself states “if individuals are insufficiently risk-averse […], then that is a matter for public health and education policy rather than the criminal law.” It therefore remains that the responsibility to prevent the spread of the virus is a responsibility shared by the community and the most appropriate way to promote such a responsibility is through education and harm prevention, not criminalisation.

(2) ‘Prosecutions for reckless HIV transmission do not result in reductions in HIV transmission or any benefit to public health in fact they undermine effective public health activity’

Tests for HIV in the UK require the consent of the patient and there is no legal requirement of PLWH to disclose their status. PLWH are offered information and education about the virus and harm prevention. This informs PLWH about the virus, its implications and measures they should take to prevent transmission.

Given that it remains the case that patients must consent to tests for HIV, a dangerous prospect emerges from the criminalisation of reckless transmission. Reckless transmission requires that the accused had knowledge of their HIV status. Given this, and the voluntary nature of the testing, it is reasonably foreseeable that, with increased prosecutions, people who present symptoms consistent with HIV status will decline to be tested. A positive test result would put them at risk of prosecution should they later transmit the virus. Thus the mere positive result of a test puts them in an entirely different legal position.

If a resistant attitude to testing emerges in response to criminalisation, undiagnosed HIV positive people will not only be more likely to undertake high-risk activities and transmit the virus, but they will not receive treatment. This will result in increased mortality and a retrograde step in both the medical progression in treatment and the work of HIV Organisations in educating both society and PLWH to destigmatise the virus. Weaits argues: “legal requirements on [PLWH] to inform sexual partners of their HIV positive status, or the compulsory isolation, detention or quarantine of PLHA may have the unintended consequence of reducing the number of people willing to come forward for HIV testing, thereby contributing to increased onward transmission through ignorance and so to morbidity and mortality”Anchor It is clear criminalisation of reckless transmission and increased numbers of prosecutions is likely to have the same effect.

Chalmers argues that, while there were concerns that this would occur following the first prosecution in ScotlandAnchor, this “simply did not happen”Anchor, citing evidence that “the overall percentage of undiagnosed persons before and after Kelly’s conviction appears reasonably constant”Anchor. While this is true, it would be expected that the result of a single prosecution would be relatively small, the concern would be that with increased prosecutions would come increased awareness, fear and resistance to testing.

The public health policy of education and harm prevention is clearly better placed to tackle transmission issues – it reduces stigma around the virus, and allows people to continue to lead a normal life with the appropriate education. The ability for the policy of education to inform society of the realities of living with the virus and reduce stigma creates a liberal and open attitude to testing and treatment. Criminalisation, on the other hand, creates resistance and fear. Focussing on education and awareness means people will be more open to testing and undertake to live with the virus, taking responsibility to prevent its transmission.

The COPFS guidance addresses these concerns and asserts that their policy “acknowledges and supports a preventative public health policy of early testing and treatment”. While this is a welcome sentiment, criminalisation in itself works against public health policy and, by nature, cannot support it.

(3) ‘Prosecution for reckless HIV transmission in practice results in miscarriages of justice, victimisation and discrimination.’

There are concerns that judges have an out-dated understanding of HIV and prejudiced view of PLWH and the implications of transmission of the virus. NAT have read the transcripts of all the judgements in England and state that it shows “judges’ descriptions of HIV are generally out of date, seeing HIV as a fatal disease with highly complex, arduous and/or purely palliative treatments”Anchor.  This raises serious concern that judges’ lack of basic knowledge of the virus, its implications and the lifestyle of PLWH may lead to injustices in verdicts and sentencing.

While NAT’s research focussed on the reaction of judges in courts in England, there is no evidence that the attitude of the judiciary in Scotland is any more enlightened. While no Scottish case has been officially reported, news reports give an indication of the attitude of the judiciary. In the third prosecution in Scotland, that of Giovanni Mola in 2007, Lord Hodge referred to the accused as being “struck by tragedy”Anchor in contracting the virus himself, while the victim told the court she was “waiting to die”Anchor. While the seriousness of the transmission and its effect on both the victim and the accused should not be underestimated, the use of such language in court misrepresents the reality of living with HIV with the treatment available today. Such misrepresentation undermines the work of HIV organisations and the health profession to destigmatise HIV, leading to discrimination and victimisation both in the courtroom and in wider society.

The prejudiced and misinformed views of the judiciary are not only evident in the obiter of the judges, but in the sentences. The sentences for the three successful prosecutions in Scots law have been 5, 9 and 10 years imprisonment respectivelyAnchor. It is concerning that such lack of understanding of the judiciary may be behind such sentences.

In order to counteract such prejudices, NAT submits that the courts should allow scientific and medical evidence to be put before the court in each case, not only specific to the facts of the case but regarding the virus generallyAnchor. To effectively assess the implications of such a transmission is an essential aspect of ensuring justice for both parties, it is crucial that the judge is fully aware of the realities of the transmission. It appears that this is not the case and, while this fact remains, there is serious risk of miscarriage of justice.

Further, PLWH who are not the subject of criminal proceedings are likely to become the subject of discrimination by society in general. Criminalisation creates a societal belief that HIV is something to be feared and those who carry the virus are dangerous. This counteracts both the work of HIV organisations to reduce the stigma surrounding virus and the medical progress to limit the effects of the virus.

Conclusion

Medical treatment of HIV today has greatly improved and the condition is no longer seen as life limitingAnchor. Early diagnosis and treatment play a crucial part in improving the prospects for PLWH.  The criminalisation of reckless transmission does not reflect this medical fact and indeed undermines the importance and effectiveness of early medical intervention. It works against medical reality and the work of HIV organisations to reduce stigma around the virus and educate society.

The number of prosecutions in Scots law remains relatively low and the interference of the criminal law is marginal. It is hoped that a prosecution for reckless transmission will not be seen again and public health law and policy will be allowed to continue its effective work to eradicate the problem of HIV transmission.

 

Anchor HM Advocate v Kelly, High Court at Glasgow, February 2001, Unreported case

Anchor National Aids Trust Table of Cases available at http://www.nat.org.uk/media/Files/Policy/2015/HIV_criminal_prosecutions_table_July2015.pdf, 5, accessed 25/10/15

Anchor Crown Office and Procurator Fiscal Scotland (2012) Prosecution policy on sexual transmission of infection available at http://www.copfs.gov.uk/publications/prosecution-policy-and-guidance accessed 25/10/15

Anchor Ibid. 3

Anchor Ibid. Quote from Paton v HMA 1936 JC 19

Anchor It has been recognised by the English Courts in R v Dica [2004] QB 1257 that consent would be a defence in English law

Anchor COPFS (2012) (n.3), 7

Anchor Smart v HMA 1975 JC 30

Anchor COPFS (2012) (n.3), 7-8

Anchor Ibid., 5

Anchor Spencer suggests there may be an argument for criminalisation even when the accused knows he ‘may have’ the virus - Spencer, JR, Liability for Reckless Infection: Part 2 (2004) 154 NLJ 448, 471

Anchor unreported case - see J Chalmers (2008) Legal Responses to HIV and AIDS, (Hart Publishing) 141.

Anchor COPFS (2012) (n. 3), 5

Anchor HMA v Devereaux, Unreported, January 2010, Dumbarton Sheriff Court.

Anchor Chalmers states that those who argue for criminalisation tend to base their arguments principally on deterrence – Chalmers, J Sexually Transmitted Diseases and The Criminal Law Juridical Review, 2001, 259-78, 275

Anchor NAT Criminal Prosecutions for HIV Transmission available at http://www.nat.org.uk/HIV-in-the-UK/Key-Issues/Law-stigma-and-discrimination/Criminal-prosecutions.aspx accessed 25/10/15

Anchor NAT (April 2010) Why NAT opposes prosecutions for reckless HIV transmission available at http://www.nat.org.uk/Media%20library/Files/Policy/2010/Why%20NAT%20opposes%20prosecutions%20for%20reckless%20HIV%20transmission2.pdf accessed 25/10/15

Anchor L. Farmer, P. Brown, and J. Lloyd Scots Criminal Law and AIDS 1987 S.L.T (News) 389

Anchor Ibid., 393

Anchor Chalmers, J (2001), (n. 15), 277

Anchor Ibid.

Anchor Ibid.

Anchor Weait, M (2007) Intimacy and Responsibility, The Criminalisation of HIV Transmission, GlassHouse, 14

Anchor Bird, SM and Leigh Brown, AJ, Criminalisation of HIV Transmission: Implications for Public Health in Scotland (2001) 323 British Medical Journal 1174

Anchor Chalmers, J (2008) (n. 12), 151

Anchor Ibid., 152

Anchor NAT BHIVA conference poster Do judges understand HIV? Available at http://www.nat.org.uk/Media%20library/Files/PDF%20documents/2009/Judges%20Poster%20(April%202009)-1.pdf accessed 25/10/15

Anchor  BBC News, 7 February 2007, HIV man recklessly infected woman available at http://news.bbc.co.uk/1/hi/scotland/edinburgh_and_east/6337903.stm accessed 25/10/15

Anchoribid.

Anchor NAT Table of Cases, (n. 2), 5

Anchor Ibid.

Anchor NAM Aidsmap How long will I Live? available at http://www.aidsmap.com/How-long-will-I-live/page/2622625/ accessed 25/10/2015 

 

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