Proving that the defendant could foresee consequences of alleged behaviours

In cases of alleged HIV exposure or transmission, there are two major aspects of forseeability: awareness of HIV-positive status and knowledge of infectiousness. There is an important distinction between the two: if a defendant knows that he or she is HIV-positive but does not grasp the implications in terms of the potential to transmit HIV to other people, then it could be argued that the individual could not have foreseen how certain behaviours might harm other people.

Most jurisdictions require that the defendant had knowledge of his or her HIV status at the time the alleged criminal act took place. This will require obtaining access to the accused’s medical records and/or calling as a witness the healthcare professional who delivered the results of the HIV antibody test. (See also Gathering Evidence: confidentiality of medical records.)

The chapter: Responsibility includes a case study on how two jurisdictions broadened criminal liability to include the undiagnosed. More information on each jurisdiction's laws can be found in the chapter: Details 

Some jurisdictions allow for the prosecution of individuals who “ought to have known” they were HIV-positive but did not take an HIV antibody test. In such circumstances – sometimes known as 'wilful blindness' – UNAIDS¹ specifically recommends against prosecution.

Again, obtaining access to the accused’s medical records and/or calling as a witness the healthcare professional who explained the HIV-positive test result to the accused would be required.

However, many jurisdictions – including most states with HIV-specific laws in the United States – do not require proof of knowledge of infectiousness. In those that do, a defendant’s knowledge that he or she has tested HIV-positive can sometimes be conflated with establishing ‘knowledge of infectiousness’.

For many HIV-positive people, the post-test counselling session at which they are told about the test result also serves as an introduction to what they need to know about preventing onward transmission of HIV. Post-test counselling, in fact, can be viewed as an important HIV-prevention opportunity.

Although 'counselling' in a legal sense means advising someone about their legal responsibilities this often has a radically different meaning in a clinical-setting 'counselling' session, which addresses a whole range of life considerations. Furthermore, the quality of post-test counselling may vary widely from one healthcare setting to another.²

Receiving an HIV-positive diagnosis is rarely easy but for some people it is a severe traumatic shock. Many people absorb very little of the information they are given immediately following the diagnosis of any serious long-term condition and misunderstand much of the rest of what they are told. See the chapter: Responsibility for more details.

In reality, a newly diagnosed individual may not be able to acquire a comprehensive understanding of HIV-prevention issues and/or their duties under the law in their jurisdiction (where they are advised of such duties) in a single post-test counselling session. And yet this single session may be considered sufficient proof that the individual processed both types of information in a meaningful way.

In addition, there are several reasons why people who have known about their HIV-positive status for some time may not think that they can transmit HIV to others (e.g., believing that being on treatment and/or having an undetectable viral load (See Viral load in the chapter: Risk) in the blood renders them uninfectious (See HIV-related risk-reducing strategies used by HIV-positive individuals to protect HIV-negative partners in the chapter: Responsibility). They may also be in denial (see Denial in the chapter: Responsibility).