Gathering evidence

All cases of criminal HIV exposure or transmission begin with an initial complaint to the police. The complaint may come from the person who believes himself or herself to be the victim of a crime (the complainant), an individual who believes that a crime has been perpetrated against someone else (a witness), or an interested third party such as a public health department. Since allegations of HIV exposure or transmission are usually considered serious crimes, the police have a duty to investigate complaints of this nature.

Participants in an expert consultation convened by the European Regional Office of the World Health Organization (WHO) have recommended that all investigations should be undertaken in a way that is fair and impartial and complies with local laws and regulations.¹ It specifically proposes there should be “an actual complainant wishing to press charges in order to launch a police investigation or proceed with a prosecution. Policies governing police and prosecutorial conduct should state clearly that cases will not proceed in the absence of such a complainant."¹

Even under these circumstances, investigators’ lack of familiarity with HIV in general,² and/or with how laws relate to HIV exposure or transmission, may complicate the proceedings for all parties involved.¹ UNAIDS recommends that, “states should establish guidelines for prosecutors to prevent inappropriate criminal prosecutions and to guide prosecutorial conduct during proceedings so as to avoid publicity that may prejudice a trial, breach the confidentiality of the accused’s HIV status, expose the accused to stigma and discrimination…and undermine public health efforts by contributing to widespread misconceptions about how HIV may be transmitted.” However, with the exception of the United Kingdom jurisdiction of England and Wales, there are currently no formal standards for how to investigate³ or prosecute⁴ allegations of HIV exposure or transmission.

An England and Wales review of police investigations into alleged criminal HIV transmission⁵ recommends that training and guidance around disclosure of information be provided to all police officers: this recommendation may well be relevant in other jurisdictions. Although legal and ethical obligations around disclosure of the HIV status of the person being investigated will vary across jurisdictions, UNAIDS recommendations on partner notification may provide general guidance regarding how and when disclosure to third parties takes place.⁶

1. For example, see Bernard EJ Report shows police mishandling of investigations into alleged criminal HIV transmission, www.aidsmap.com, 28 January 2009.

In most legal systems, communications between lawyer and client are privileged in the sense that the information that is shared can legally be withheld from investigators and from the court record. But any other information, no matter how confidential, can usually be obtained and used in criminal cases as long as it is materially relevant to either the defence or prosecution. Thus, despite the ethical obligation of doctors and other healthcare professionals to maintain confidentiality, legal mechanisms such as search warrants and court orders in many cases allow for doctor-patient confidentiality to be breached.

UNAIDS recommends that “details of the accused person’s communications to a health-care professional, spiritual adviser or other counsellor” should be exempt from this process, “so as to minimize the potentially detrimental impact on access to counselling and support services which assist in avoiding risky behaviour.”⁷

Guidelines for healthcare professionals regarding issues of confidentiality and disclosure of health information in cases of investigations into alleged criminal HIV exposure or transmission exist in several countries, including Australia,⁸ Canada,⁹ the United Kingdom¹⁰ and the United States.¹¹

Although standards will vary according to jurisdiction, United Kingdom guidelines¹⁰ highlight that:

• Police have no automatic right to see healthcare professional's notes about patients, regardless of whether these notes pertain to the accused, the complainant or their sexual contacts. If they wish to see notes, they must either request the patient’s consent or obtain a court order.

• If a healthcare professional receives a request from the police for information accompanied by documentation from the patient giving consent, the clinician must satisfy her/himself that the consent provided is fully informed and appropriately obtained before disclosing medical information. To this end, the patient's own doctor should attempt to talk directly to the patient and, failing that, to their legal representative.

• Healthcare professionals have no duty to answer questions that the police ask about their patients unless the request is sanctioned by a court order.

• If healthcare professionals are asked by the police to request HIV testing for sexual contacts of the accused or complainant it is important to clearly state when contacting them that this has been prompted by a police investigation into a third party. Although the police may have an interest in the results of such testing, information on individuals must not be disclosed to the police without their consent or a court order.

In light of the potential for information to be misused, advocates for people with HIV have recommended that anyone being investigated in cases of alleged HIV exposure or transmission not grant access to personal medical records without first obtaining legal advice.¹² Although complainants may feel less concerned about others gaining access to their medical records, they should be aware of the potential for everything in the records to be used for the investigation and/or made public during a trial, including information that weakens the case against the defendant.

In some jurisdictions, law enforcement agencies routinely issue press releases or advise local media in other ways about the investigation of complaints for alleged criminal HIV exposure or transmission.

Media reports typically encourage members of the public who may have had sexual contact with the accused to both undertake HIV antibody testing and to contact police.¹ Sometimes, however, the media run stories prematurely, based on accusations that have not yet been investigated by the police and/or where charges have not been laid.²

Police and media need to consider balancing the need to disclose such information with the need to protect the privacy of others, including those who are not accused (such as a partner and/or children) and whose HIV status might be inferred by association.³ They should also consider the possibility that disclosing this information may violate the right of the accused to a fair trial.⁴

UNAIDS recommends protecting the privacy of both complainants and defendants during all legal proceedings.¹³ An expert meeting convened by WHO Europe further recommends that “[p]olicies governing police and prosecutors must clearly prohibit police officers or prosecuting authorities from making public comments about the defendant that are intended, or can reasonably be foreseen, to prejudice the right to a fair trial.”¹ 

Although, in some cases, media reports can justifiably serve as public health announcements, in others these reports may constitute ‘fishing expeditions’ for further complainants, which may be especially unethical where there has been no initial complainant.¹⁴

The expert meeting convened by WHO Europe recommends that “policies governing police conduct should prohibit the release of information about a person suspected or accused of HIV/STI transmission or exposure, either to the media or directly to the public, that is aimed at soliciting additional complaints. Such solicitation is particularly inappropriate when a complaint that has been received does not itself provide reasonable grounds to believe any offence has been committed.”¹

1. For examples, see Criminal HIV Transmission blog at www.criminalhivtransmission.blogspot.com.

2. For example, see Bernard EJ ‘UK: Scottish man accused of criminal HIV transmission; sensationalist reporting’. Criminal HIV Transmission blog at www.criminalhivtransmission.blogspot.com, 30 March 2008.

3. For example, see Xtra! ‘Police protect accused's ID in HIV non-disclosure case - sort of’. www.xtra.ca/public/National/Police_protect_accuseds_ID_in_HIV_nondisclosure_case_sort_of-8561.aspx, (accessed: 5 July 2010), 23 April 2010.

4. Articles 11 and 12 of the Universal Declaration of Human Rights state: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” (Article 11) and “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” (Article 12)