What kind of criminal laws apply to potential or actual HIV exposure or transmission?

Most jurisdictions around the world already have existing general criminal laws that could be applied to the intentional transmission of HIV.¹ Although this resource focuses primarily on the countries and jurisdictions that have either enacted HIV-specific laws or that have prosecuted individuals under existing laws, it is important to note that there are many other countries and/or jurisdictions that appear to have done neither.

Case study: South Africa. HIV-specific criminal law not necessary. In 2001, the South African Law Commission undertook a comprehensive review of the need for an HIV-specific criminal law, concluding that such a law was not necessary and that existing laws were sufficient to prosecute intentional or coercive acts that resulted in HIV transmission. The Law Commission argued that, "the creation of HIV-specific measures requiring the disclosure of their HIV status by all persons with HIV engaging in certain sexual activities should not be pursued...There is no scientific, empirical or even informal evidence that the behaviour is occurring to such an extent that the creation of HIV-specific statutory offences is necessary. This may indicate that in practice there is no need for additional punitive measures, and that a change to the law would therefore probably be based, without denying the real instances of dangerous behaviour that do occur, on fears, anxieties and 'urban legends' about alleged wilful or negligent behaviour by persons with HIV."²

Different jurisdictions around the world (even within the same country, as is the case, for example, in Australia, the United Kingdom and the  United States) have come to a wide range of conclusions regarding whether to apply the criminal law only when HIV infection has resulted (focusing on the harm of the act) or also when exposure not resulting in transmission has occurred (focusing on the risk taking). This is true for both HIV-specific laws and more general laws, although the latter has often required clarification by the jurisdiction's highest courts.

Example of a non-disclosure law, from Michigan, United States. (Mich. Comp. Laws Ann. § 14.15 (5210)

A person who knows he or she has HIV, and who engages in sexual penetration with another person without informing that person of his or her HIV status, is guilty of a felony. ‘Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body; emission of semen is not required.

Further complicating matters, some laws obligate a person with HIV (and in rare cases, a person who is aware they might have HIV) to disclose this fact to their sexual partner prior to sex, often regardless of the risk of HIV exposure or protective measures taken to significantly reduce the risk of HIV exposure.  Other laws allow for disclosure to be an affirmative defence to the potential or actual exposure or transmission of HIV.

Since 1998, UNAIDS and the Office of the United Nations High Commissioner for Human Rights (OHCHR) have recommended that states should not create and enforce HIV-specific criminal laws, but instead should utilise existing laws such as those used to prosecute bodily harm or sexual assault. In order for someone to be convicted of HIV transmission under existing laws, according to guidelines jointly published by UNAIDS and OHCHR, “the elements of foreseeability, intent, causality and consent [must be] clearly and legally established to support a guilty verdict and/or harsher penalties.”³ In other words, someone who allegedly transmitted HIV should not be convicted under non-HIV-specific laws unless that person’s behaviour meets the same criteria as other behaviours criminalised under those laws.

Example of an HIV exposure law from Idaho, United States. (Idaho Code § 39-608) Any person who exposes another in any manner with the intent to infect or, knowing that he or she has HIV, transfers or attempts to transfer any of his or her body fluid, tissue or organs to another person is guilty of a felony. It is an affirmative defense that the sexual activity took place between consenting adults after full disclosure by the accused of the risk of HIV transmission. It is also an affirmative defense that the transfer of body fluid, tissue or organs occurred after advice from a licensed physician that the accused was non-infectious. (“Body fluid” means semen, blood, saliva, vaginal secretion, breast milk, and urine. “Transfer” means engaging in sexual activity by genital-genital contact, oral-genital contact, anal-genital contact; or permitting the use of an unsterilized hypodermic syringe, needle, or similar device; or giving blood, semen, body tissue, or organs for purposes of transfer to another person.)

Proponents of HIV-specific laws say they are needed in order to minimise the possibility that courts will over-extend or inappropriately apply existing laws. A further argument for HIV-specific laws is that they make it easier to obtain convictions: laws can be  written which do not require proof of actual transmission, injury, causation or intent. Punishment can also be tailored to the specific crime(s).⁴

Opponents object to laws singling out people living with HIV, which may characterise them as potential criminals, contributing to stigma and discrimination, which in turn is believed to undermine other HIV prevention and care efforts.¹ They also criticise current and proposed HIV-specific laws for being poorly drafted, vague about the circumstances under which someone should be prosecuted⁵ and not reflective of the rapidly changing body of scientific knowledge about HIV epidemiology, prevention and treatment.⁶

Existing general laws used to prosecute HIV exposure or transmission can be further defined by case law. For example, a 2005 ruling by the Supreme Court of the Czech Republic confirmed that any unprotected sex (including oral sex) by a diagnosed HIV-positive person is contrary to Section 189 of the Criminal Code: ‘spread of infectious diseases’. Unprotected anal sex is additionally considered to be ‘attempted bodily injury’ (Section 222). There is no affirmative defence for obtaining a partner’s consent following disclosure of one’s HIV-positive status.