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HIV AND THE LAW

HIV and the law

There is no law saying you must tell people you have HIV if you are having protected sex, and it's your choice whether you tell sexual partners whether you have HIV or not. However, you may be prosecuted and found guilty of reckless HIV transmission if all of the following apply:

  • You knew you had HIV
  • You understood how HIV is transmitted and that you might be infectious
  • You had sex with someone who didn’t know you had HIV
  • You had sex without a condom
  • You are the only the person who could have transmitted HIV to that person.

Meaning of the word reckless

  • "Marked by lack of proper caution; careless of consequences."" (Merriam-Webster)
  • If you say that someone is reckless, you mean that they act in a way which shows that they do not care about danger or the effect their behaviour will have on other people." (Collins)
  • "A person whos actions are putting the people around him in harms way." (Urban Dictionary)
  • "Heedless of danger or the consequences of one's actions; rash or impetuous." (Google)

As you can imagine, criminal law is complicated and there are variations for England and Wales, Northern Ireland, and Scotland.

Introduction to the legislation | nam aisdsmap
Frequently asked questions regarding criminal liability for HIV transmission | nam aidsmap

Daryll Rowe’s sentence could change the law’s approach to HIV transmission | The Conversation | 19 Apr 2018
Daryll Rowe guilty of infecting men with HIV | BBC | 15 Nov 2017

Investigation Guidance relating to the Criminal Transmission of HIV | National AIDS Trust (NAT) | May 2017
Why NAT opposes prosecutions for reckless HIV transmission | National AIDS Trust (NAT) | April 2010
HIV Forensics II: Estimating the likelihood of recent HIV infection: Implications for criminal prosecution | National AIDS Trust (NAT) | Jul 2011
HIV: A Guide for Police Forces | National AIDS Trust (NAT) | Jun 2014
Criminal prosecutions | National AIDS Trust (NAT)

More

Background to prosecution and the law | Terrence Higgins Trust (THT)
HIV and the law | Gay Men Fighting AIDS (GMFA)

Intentional or reckless sexual transmission of infection | Criminal Prosecution Service (CPS)
Law Commission considers HIV criminalisation in great depth, but recommends no change | HIV Justice Network | 9 Nov 2015

Sexual Offences Act 2003 | Wikipedia
Sexual Offences Act 2003 | legislation.co.uk | The National Archives

Offences Against the Person Act 1861 (OAPA 1861) | Wikipedia
Criminal transmission of HIV | Wikipedia

Main provisions of the Sexual Offences Act 2003

  • Clearly defines "consent" as a person consents if she/he agrees by choice and has the freedom and capacity to make that choice. Sets out evidential and conclusive presumptions about consent.
  • Reclassifies rape as the penetration by the penis of somebody's vagina, anus or mouth, without consent.
  • Creates a new offence of assault by penetration, the insertion of a body part or foreign object, such as a bottle, into the anus or vagina without consent.
  • Redefines sexual assault as an intentional sexual touching without consent. It can include touching any part of the body, clothed or unclothed, by either a body part or an object.
  • Sets the age of a "child" at 18, amending the Protection of Children Act 1978, and provides a defence for all sexual offences when the child is 16 or over and the relationship is consensual.
  • Classifies any sexual intercourse with a child aged 12 or younger as rape.
  • Establishes a raft of new criminal offences including crimes involving familial sexual abuse, offences involving adult relatives and offences designed to give protection to persons with a mental disorder.
  • Re-enacts the offences of abuse of a position of trust towards a child. This prohibits sexual contact between adults and children under 18 in schools, colleges and residential care.
  • Creates a number of offences related to "intent" including a new offence targeting drinks spiking.
  • Makes it an offence to give someone a substance without their consent and with the intention of stupefying or overpowering them so that any kind of sexual activity can take place. Two other "intent" offences cover situations where a person commits any offence with the intention of committing a sexual offence or where a person is a trespasser, he intends to commit a sexual offence on the premises and he knows that he is a trespasser,
  • Creates several new initiatives to protect children and the general public from sex offenders. The act allows dual criminality, meaning notification orders can be extended to those convicted abroad, and creates a civil order, the sexual offences prevention order, which combines sex offender orders (Crime and Disorder Act 1998) and restraining orders (Sex Offenders Act 1997).
  • Requires convicted sex offenders to register with their local police every year instead of every five years.
  • Introduces risk of sexual harm orders, specifically designed to protect children, and also creates foreign travel orders, which can be used to prevent an offender with a conviction for a sex offence against a child from travelling to countries where he is at risk of abusing children.
  • A new offence of voyeurism relating to those who observe others doing private acts without their knowledge for sexual gratification.
  • Decriminalises a series of sexual acts including the offences of gross indecency, buggery and soliciting by men (cruising).
  • Makes necrophilia and bestiality crimes.

Sexual Offences Act 2003 | The Guardian | Opinion A-Z of legislation | 15 Jun 2009

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