Conclusion

This chapter has examined multiple dimensions of proving alleged HIV exposure or transmission, calling attention to the need for evidence regarding foreseeability, state of mind, causation and consent. In doing so, it has also served to highlight some of the evidentiary weaknesses of HIV-related criminal cases that are brought to trial.

Evidentiary weaknesses regarding proof that the defendant infected the complainant(s) are particularly problematic, especially when there is no prior HIV-testing history but a history of past sexual partners. Such weaknesses that are rarely investigated or examined in court include:

• failure to rule out the possibility that a complainant was infected prior to having a sexual encounter with a defendant.

• failure to obtain enough evidence to exclude the possibility that another person may have been the source of the complaint's infection.

• failure to conclusively determine the direction of HIV transmission between a defendant and complainant.

• failure to conclusively determine the timing of HIV transmission between defendant and complainant.

Other problematic aspects of seeking to prove a defendant guilty of criminal HIV exposure or transmission include:

• accepting guilty pleas prior to a full examination of the evidence that an individual who feels guilty because they placed their sexual part at risk of HIV exposure actually could have been guilty.

• difficulties in interpreting 'expert witness' statements for each side of the case that may contradict each other, for example, regarding whether the defendant was infectious enough during the alleged act(s) or was, in fact, the source of the complainant's infection.

• difficulties in securing unbiased evidence about whether disclosure of an HIV-positive diagnosis took place or not.

Taken together, all of these issues indicate that obtaining unquestionable proof of alleged HIV exposure or transmission is an extremely complex undertaking. There is an ethical imperative for all parties involved in such cases to bear this in mind, especially since irreparable damage may be done to individuals caught up in investigations and prosecutions that are based on unfounded beliefs about the quality and reliability of the evidence.