Introduction

International Guidelines on HIV/AIDS and Human Rights² recommend the following:

“Criminal and/or public health legislation should not include specific offences against the deliberate and intentional transmission of HIV but rather should apply general criminal offences to these exceptional cases. Such application should ensure that the elements of foreseeability, intent, causality and consent are clearly and legally established to support a guilty verdict and/or harsher penalties.”

However, despite the immense difficulties with proving all four elements beyond a reasonable doubt, hundreds of criminal prosecutions – not only for "the deliberate and intentional transmission of HIV" but also for acts that have potentially or actually exposed others to HIV – have succeeded around the world.

This trend may be attributable to one or more of the following factors:

• specially created HIV-specific laws that do not require that HIV transmission (or, in some cases, even exposure to HIV) has occurred and/or that specify lower proof burdens for the prosecution.

• High Court rulings on general laws that have allowed for new interpretations of causality or intent in an HIV-specific context.

• a large number of guilty pleas that may reflect defendants’ feelings of regret about having unprotected sex; inability to ‘prove’ disclosure of HIV status prior to engaging in sex; fear of a harsher sentence; and/or misinterpretations of scientific evidence.

The literature on HIV-related criminal prosecutions worldwide suggests that many kinds of information relating to both the science of HIV and the behaviour of HIV-positive people may be misinterpreted, potentially leading to grave miscarriages of justice. It is, therefore, essential for all parties involved in the criminalisation, investigation and prosecution of alleged HIV exposure or transmission to understand the technical criteria for what constitutes reliable evidence in this realm.

The purpose of this chapter is to systematically examine the acquisition and use of various types of evidence in HIV-related criminal cases, highlighting questions that should be answered if the evidence is to hold up as legitimate proof of the defendant’s guilt. Since the vast majority of criminal prosecutions relate to sexual exposure or transmission, this chapter will focus specifically on evidence required in those cases.

Readers should bear in mind that the required elements for criminal wrongdoing vary from one jurisdiction to another (and even within jurisdictions, where the same conduct may result in different charges). Readers should also bear in mind that the criteria for what constitutes proof of each element of criminal wrongdoing in those cases will also vary from one jurisdiction to another and may change over time, based on court rulings and/or statutory changes.

Chapter contents include:

• gathering evidence

• deciding to prosecute

• proving that the defendant could foresee consequences of alleged behaviours

• proving the criminality of the defendant’s state of mind

• proving a cause-effect relationship between the defendant’s behaviour and the alleged outcome

• proving the complainant’s consent or lack of consent.

In at least some jurisdictions, the prosecution must only establish the defendant knew he/she had HIV, engaged in a specified action and (sometimes) had a particular intent. In many jurisdictions, disclosure (and therefore consent) is an element the defendant must prove, as opposed to the prosecution having to establish non-disclosure. More information on each jurisdiction's laws can be found in the chapter: Details.