Proving the criminality of the defendant’s state of mind

Most HIV-specific laws do not require a guilty state of mind (often using terms such as ‘knowing’, ‘wilful’ or ‘deliberate’ to mean simply that the person was aware that they were diagnosed HIV-positive at the time of the alleged incident). However, where non-specific assault and homicide laws are used to prosecute HIV exposure or transmission, these usually require one of three levels of mental culpability: intention, recklessness, or negligence.¹ This requires proving the defendant’s state of mind, typically by drawing on testimony from witnesses including the complainant(s); any healthcare professionals who have counselled the defendant; and/or written evidence such as diaries, emails and other electronic communications that provide insight into the defendant’s thoughts and plans.

1. Terminology used to describe degrees of mental culpability associated with certain actions varies across legal systems. For example, ‘recklessness’ is used in common-law systems to describe a lesser degree of culpability than intention, whereas dolus eventualis is used in civil-law systems in similar fashion.

Intentional HIV exposure or transmission is usually defined as the act of a person who knows they are living with HIV and who exposes another person to HIV with the specific intention of harming them. If it can be proven that the person acquired HIV as a direct result of this act, this is ‘intentional HIV transmission’; if not it is ‘attempted intentional HIV transmission’.

UNAIDS¹ states that the use of the criminal law is only justified when there is both intent and when proven transmission occurs as a result of that intent. They also recommend that the law not be used against a person who intended to transmit HIV if there is no resulting infection. However, the chapter: Details  shows that many jurisdictions have laws that allow for prosecution based on the ‘guilty mind’ of the person living with HIV if their intent can be proven, regardless of whether infection was likely to occur. (See, for example, Case study: Canada and the United States. Preoccupation with alleged HIV exposure and transmission during biting and spitting in the United States in the chapter: Laws.)

Prosecutions for intentional HIV transmission, as defined by the legal meaning of intent used here, are extremely rare, despite media reports suggesting otherwise (see The myth of the intentional HIV transmitter in the chapter: Laws). In addition, alleged intentional HIV transmission is very difficult to prove in the context of consensual sex. Even if intention can be proven, the prosecution must also conclusively prove that the accused infected the complainant (see Proving a cause-effect relationship between the defendant's behaviour and the alleged outcome and the case study, below) in order to obtain an intentional HIV-transmission conviction.

In the context of alleged HIV exposure or transmission, criminal law generally views recklessness as knowing one’s HIV-positive status and foreseeing that certain conduct may result in exposure or transmission of the virus, but nevertheless taking this risk without good justification. If a person were consequently infected, this would be considered reckless HIV transmission; otherwise it would be considered reckless HIV exposure.

In jurisdictions that require proof of the defendant’s criminal state of mind in relation to HIV exposure or transmission charges, recklessness is the state of mind that the prosecution frequently seeks to attribute to defendants. Here, in addition to proving foreseeability, the prosecution must prove that the accused consciously ran the risk of unprotected sex regardless of the knowledge that this could result in the harm of another person. However, as discussed above, courts may fail to properly distinguish between awareness of being HIV-positive and accepting and understanding what conduct might put another at risk of exposure or transmission. The person's behaviour may then be negligent, rather than reckless (proving negligence is discussed below), or even accidental.

Case studies showing how various jurisdictions have accepted that certain risk-reduction strategies are acceptable in order to preclude liability for alleged criminal HIV exposure or transmission in the absence of disclosure can be found in the chapter: Risk  

UNAIDS¹ recommends against prosecuting cases of alleged HIV exposure or transmission where recklesness is the alleged state of mind.

In accordance with recommendations from UNAIDS¹ and experts convened by WHO,² some jurisdictions recognise that an HIV-positive person’s efforts to reduce the likelihood of transmission (e.g., by using condoms,³ engaging in sex with a low per-act risk of HIV transmission⁴ and/or having an undectectable viral load) may be a defence against recklessness charges.

Negligence might be alleged in a situation in which a person living with HIV fails to use reasonable care to prevent HIV exposure or transmission. The difference between recklessness and negligence is small but significant: while recklessness involves conscious risk-taking, negligence does not require any awareness that the act might result in HIV transmission.

In some jurisdictions where recklessness is not a legal concept, negligent HIV exposure or transmission is an alternative to intentional HIV exposure or transmission.

Neither UNAIDS¹ nor experts convened by WHO² believe that this state of mind is culpable enough for criminal liability.