By Kat Smithson 

Since 2001 it has been possible to be prosecuted for the reckless or intentional transmission of HIV in England and Wales. To date there have been more than 30 people convicted of reckless HIV transmission, and one person of intentionally transmitting HIV. There has also been one especially contentious case of transmission of Herpes.  

Since 2019 we have been in discussions with the Crown Prosecution Service (CPS) to update their guidance to reflect the medical consensus that those on effective treatment cannot pass on the virus - U=U or Undetectable = Untransmissable - and to support improvements in practice. We’re pleased that this week, long overdue changes to the CPS’s Intentional or Reckless Sexual Transmission of Infection guidance have been published.  

These prosecutions can be extremely difficult for all involved. They are complex in nature, in part because they are based upon law which was not designed for this purpose (Offences Against the Person Act 1861). There is a great deal of misunderstanding among those who are responsible for acting on it.  

Cases have undoubtedly led to highly stigmatising coverage of HIV in the media and have further exacerbated mistrust in the criminal justice system for many people living with HIV. In this context, strong guidance for prosecutors, who are responsible for making decisions to charge and bring these cases to court, is essential to mitigate the harms of drawn-out investigations and court proceedings wherever possible.   

The updated guidance is now structured by the five propositions which must be proven for there to be any success of prosecution (in the following, A is the accused and B is the complainant):  

1. B has an STI which is capable of amounting to grievous bodily harm 

2. A had a diagnosed STI at the time of sexual activity with B 

3. A knew at the material time that they had the STI 

4. A intended to transmit the STI to B or foresaw the risk of transmitting the STI but went on unreasonably to take that risk 

5. A in fact infected B with the STI. 

We believe this structure is helpful and clear, and helps to pull out the relevant evidence, and the limitations of certain types of evidence for each one.  

Critically, the updated guidance includes that effective HIV treatment stops HIV transmission. While the previous version set out that a person’s viral load at the time may provide a defence for them because it was believed to reduce transmission risk, it did not clearly set out the current medical consensus is that this risk is zero.  

This is more than a defence, whether a person was, or believed themselves to be, able to transmit HIV must be established early on as it can disprove any potential that a crime (as defined by the law) was committed. In our experience, a lot of police investigations would end very quickly and with far less instances of discrimination, if this was appreciated in the initial stages. Instead, the police often don’t understand what it means when they are told a person is undetectable and the fact that this is the case for most people with diagnosed HIV is rarely known. While this guidance is for prosecutors primarily, they advise the police, and it provides a highly credible and influential document to which people can refer.   

We know of several cases which have gone to court without the necessary evidence to prove the propositions. Even in cases where no evidence is presented in court, if a charge is read out it can then be reported on. This can result in people’s lives being upturned only for it to eventually become clear that there was never a prospect of successful prosecution. This should not happen.   

We hope that this guidance will help prevent such instances, by supporting prosecutors to identify early on gaps in the evidence to prove that someone acted recklessly, and that this resulted in transmission. 

We will always have concerns when the transmission of HIV is criminalised. Along with the vast majority of HIV organisations, including the United Nations agency UNAIDS, we believe treating the reckless transmission of HIV as a criminal issue does more harm than good and does not result in reduced transmissions or a greater public understanding of HIV. 

While prosecutions for reckless transmission remains established in the case law in England and Wales, the updates to the guidance can go some way to ensure that cases are handled sensitively and consider the facts around HIV today. It’s essential that the CPS continue open dialogue with people living with HIV, community organisations and clinicians to ensure that the guidance reflects the most up to date evidence and that it is supporting good practice.