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Criminal Prosecution for Transmission of HIV The current position July 2006 – THT Policy Division

Criminal Prosecution for Transmission of HIV The current position July 2006 – THT Policy Division. What’s the charge?. Offences Against The Person Act (1861) Grievous Bodily Harm (used for all kinds of assault or harm)

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Criminal Prosecution for Transmission of HIV The current position July 2006 – THT Policy Division

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  1. Criminal Prosecution for Transmission of HIVThe current position July 2006 – THT Policy Division

  2. What’s the charge? • Offences Against The Person Act (1861) • Grievous Bodily Harm (used for all kinds of assault or harm) • Section 18 (intentional: up to life sentence) or Section 20 (reckless: up to 5 years) • Judges can also order deportation after prison for migrants; case under consideration currently • All prosecutions so far for reckless transmission

  3. What’s the difference? • “Intent” means you intended to harm – difficult to prove unless statement of intent • Reckless simply means you didn’t take care whether you transmitted or not • Recklessness far easier to prove; you only need proof of transmission and no disclosure of status • Much of media coverage calls cases “deliberate” when only charged as reckless

  4. Is this just about HIV and sex? • All successful UK prosecutions so far for HIV • Law doesn’t specify HIV or STIs, only “serious harm” • Prosecution taken (2002/3) for passing herpes; abandoned due to lack of proof, not wrongness of charge • Could theoretically be used for any condition that causes long term or serious harm • CPS only considering sexual transmission currently, but unclear what could be (theoretically) prosecuted • Stigma means that HIV is most likely/frequent target – all current known investigations include it

  5. Who is being prosecuted? • All cases so far required a complaint from someone infected BUT police are starting to trawl for “victims” • All successful prosecutions so far heterosexual, but at least three gay ones in pipeline • Wide variety of complaints under investigation, in wide variety of situations – no clear pattern of “hard cases” • Wide variety of police & CPS practices in investigating and charging • Anyone found to be positive in other investigations at risk of sudden police interest re: onward transmission

  6. Implications of judgements so far • PWHIV responsible for disclosure; no disclosure risks a charge if transmission • Consistent condom use may be a defence, but unclear as yet (and not seen as such by police currently) • Test or knowledge of status likely to be a requirement in future • Prosecution only likely where: • No disclosure • No/inconsistent use of condom/safer sex • Transmission occurs • Infected person makes a complaint

  7. Confidentiality & disclosure • Many clinicians concerned re obligations • Importance of understanding GMC guidance • No obligation to approach police • Medical records should only be handed over with “informed consent” of patient or by court order • Discussion in staff teams recommended • Review of promises to patients re confidentiality recommended • Consider how best to manage safer sex work and STI diagnosis and management with PWHIV in these circumstances

  8. Miscarriage of justice – experience so far • Accusations in revenge for ending a relationship • Some newly diagnosed people encouraged to complain while in state of shock re: diagnosis • Accusations made as defence by people facing violence charges • Very poor advice by inexperienced solicitors • Poor practice by uninformed/inexperienced police • Poor practice by local CPS staff despite central advice • Sentencing disproportionate through lack of HIV knowledge in judiciary • Attempted deportation to countries without treatment access at end of sentence for some

  9. What are THT and others doing? • Working to inform PWHIV of the situation and support them • Working to ensure others don’t assume disclosure in sexual situations • Providing advice to PWHIV, clinicians and other support organisations, particularly on disclosure & confidentiality and on advice to newly diagnosed • Providing advice to solicitors and other involved parties • Collecting case studies and other research • Maintaining website information and updates for all

  10. What can you do? • CPS consultation later this month • Spread the word about what’s happening • Let THT Policy Team know of all and any police investigations • Ensure your team is well informed • Work with your local police liaison team to • improve understanding of the realities of HIV transmission • encourage them to talk to you if a case happens • Minimise HIV prejudice and be able to challenge poor practice

  11. lisa.power@tht.org.uk www.tht.org.uk/prosecutions Contacts

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