Criminal Liability for Sexually Transmitted Infections

Criminal Law and Justice Weekly, Vol. 173, pp. 45-47

This is a short piece aimed at criminal justice professionals and magistrates.  It focuses on the Crown Prosecution Service guidelines and their implications.

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Criminal Law & Justice Weekly
    
    Vol. 173 January 24 2009
    
    Criminal Liability for Sexually Transmitted Infections
    Dr Matthew Weait discusses the key issues
    
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    ince 2001, there have been nearly 20 cases in the samples to determine the degree of genetic relatedness. United Kingdom involving allegations of reckless Because HIV exists in different strains, it is possible to disease transmission during sexual activity. [For exclude the possibility that the defendant was the cause an up to date and reliable record of English cases and of the complainant’s infection; but, unlike the case with significant ones from other jurisdictions see: http:// DNA evidence, it is not possible to state with anything criminalhivtransmission.blogspot.com.] The vast majority like certainty that the defendant was the source of the of these have concerned HIV, though in November 2008, HIV in the complainant’s body, even if the strain is the there was a conviction for the transmission of Hepatitis same. [Bernard, E., Geretti, A-M, van Damme, A., B. The legal and evidential issues which these cases Azad, Y. and Weait, M. (2007) “HIV forensics: pitfalls raise are complex, a fact which the Crown Prosecution and acceptable standards in the use of phylogenetic Service recognized in its 2007 Policy guidance in this analysis as evidence in criminal investigations of HIV area [http://www.cps.gov.uk/publications/prosecution/sti. transmission” HIV Medicine, 8, 382–387]. Nor is it html]. possible to establish confidently the route or timing In this article some of the key of transmission – critical matters issues, and the CPS Policy as regards if miscarriages of justice are to be these, are discussed with the aim “We must build up avoided. of ensuring that those who may Until 2005, no defendant had a strong factual case be confronted by such cases better sought to challenge prosecution understand them. around the scientific assertions that because the HIV was genetically similar, he must have and medical evidence.” The Law been responsible. Since then, cases There is no liability in English law in which there is evidence that the merely for exposing someone to the risk of transmission, complainant had a prior history of sex in which HIV and although it is possible to charge someone with could have been transmitted, or (even more critically) intentionally causing grievous bodily harm, prosecutions a history of prior sexual infection, have resulted in are typically brought under s.20 of the Offences Against prosecutions failing and trials being aborted by Judges, the Person Act 1861. This involves establishing that although there has been a recent case in which a person the defendant maliciously inf licted grievous bodily pleaded guilty for transmitting Hepatitis B despite the harm. Although HIV infection can usually be managed fact that, according to virological experts, this is even effectively with anti-retroviral drugs, its seriousness is more evidentially problematic. The CPS Policy [supra, not generally disputed and therefore the critical issues n.2], affirms the importance of not treating scientific and relate to causation and the meaning of recklessness in this medical evidence as conclusive, stating that it, “will only context. ever form part of the case against the defendant. We must build up a strong factual case around the scientific and Causation medical evidence in order to satisfy the evidential test in In the absence of compelling evidence that the defendant the Code”. in fact caused the complainant’s infection there is no case Judges and magistrates should be particularly alert to to answer. The actus reus of the offence is not established cases in which phylogenetic or other virological evidence and the question of fault does not arise. Proof of has been accepted as probative of causation by the causation in HIV transmission cases rests on phylogenetic defendant when there is evidence that the complainant analysis, a process in which the virus in the defendant’s could have been infected by a third party. Allowing and complainant’s bodies are compared against control prosecutions to proceed in the absence of compelling
    
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    Criminal Law & Justice Weekly evidence that the defendant must have been the source of the complainant’s infection may well result in them being discontinued at a later stage.
    
    Vol. 173 January 24 2009 sexual infection but that the defendant has failed to act on that recommendation; it might be evidence that the defendant is exhibiting clear symptoms associated with the sexual infection from which it is reasonable for the prosecution to infer that they must know that they have it; it might be evidence that one of their previous sexual partners has since been diagnosed with a sexually transmitted infection in circumstances which the defendant knows means that it is only he or she who is likely to have infected their sexual partner. Any of these factual circumstances may be sufficient to allow the prosecution and eventually the court to decide that the defendant did have the required degree of knowledge that should have led them not to take the risk of infecting another person. However, it will only be in exceptional cases that the Crown will be able to rely on ‘wilful blindness’ as proof of knowledge,” [Ibid].
    
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    Recklessness
    
    If there is sufficient evidence of causation to pursue a case, the question of recklessness arises. In most cases involving s.20, it is relatively unproblematic to establish whether the defendant consciously took an unjustifiable risk resulting in harm. The same is not true in cases involving the sexual transmission of infection. The first issue which arises is the knowledge of the defendant about his or her HIV positive status. In both R. v. Dica, [2004] 2 Cr. App. R.28, and R. v. Konzani [2005] 2 Cr. App. R.14, the appellants had received an HIV positive diagnosis and had been advised by health professionals of the importance of desisting from unprotected sex and of disclosing their HIV status to sexual partners. In R. v. Dica, the Court of Appeal seemed to indicate that actual knowledge of status was a critical factor in establishing liability. Reversing the decision in R. v. “The CPS Clarence (1889) 22 QB 23 it held that:
    
    It is to be hoped that courts are particularly alert to cases in which Policy adopts undiagnosed defendants are alleged to have been reckless, especially an arguably more since the understandable fear and “The effect of this judgment in expansive approach than denial of some people who believe relation to s.20 is to remove some that they may be infected with HIV the words of the Court of the outdated restrictions against or another serious STI can have the the successful prosecution of of Appeal suggest.” effect of preventing them from being those who, knowing that they are consciously aware of the risks to suffering HIV or some other serious which they may be exposing partners. sexual disease, recklessly transmit it through consensual One further, and vitally important, consideration as sexual intercourse, and inf lict grievous bodily harm on regards recklessness concerns efforts made by defendants a person from whom the risk is concealed and who is to protect their partners from onward transmission of not consenting to it,” [2004] 2 Cr. App. R. 28 at [59] infection through the use of condoms or other safer (author’s emphasis) sex strategies. Condoms are not 100 per cent effective against HIV transmission, and far less so as regards other The CPS Policy adopts an arguably more expansive more infectious diseases. It might therefore be thought approach than the words of the Court of Appeal suggest. that those who are aware of their status and who use It states that: prophylaxis should still be treated as reckless on the basis that they were aware of the risk of transmission. “Evidence of knowledge will usually take the form of However, in line with best sexual health promotion a diagnosis prior to the alleged infection occurring. practice, the CPS Policy makes it clear that it will But it is possible, in rare cases, that a person can only be in the rarest of cases that a person who has know that he or she is infected without undergoing sought actively to avoid onward transmission could be the necessary medical tests. This will be a question of successfully prosecuted: fact and it is not possible to provide an exhaustive list of the circumstances from which it will be possible to “Evidence that the defendant took appropriate conclude that the person “knew” they were infected,” safeguards to prevent the transmission of their [Supra, n.2]. infection throughout the entire period of sexual activity, and evidence that those safeguards satisfy The Policy continues: medical experts as reasonable in light of the nature of the infection, will mean that it will be highly unlikely “In such cases, the prosecution will need to look that the prosecution will be able to demonstrate that for evidence of what might be described as ‘wilful the defendant was reckless” [Ibid]. blindness’ on the part of the defendant. This will be ‘wilful blindness’ to the fact that they are infected It is, of course, possible that a person is inept in their and infectious. Such evidence might be that the use of protection, however, defendant has had a preliminary diagnosis from a clinician who has recommended that the defendant “prosecutors will need to take into account what have a formal confirmatory test for presence of the the defendant considered to be the adequacy and
    
    Criminal Law & Justice Weekly appropriateness of the safeguards adopted; only where it can be shown that the defendant knew that such safeguards were inappropriate will it be likely that the prosecution would be able to prove recklessness” [Ibid].
    
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    complainant was not in fact HIV positive. The police searched actively for a previous partner who did test positive and was willing to give evidence. In other cases people have had their PCs, diaries and address books taken in early morning raids, only for those cases to be Consent and the Relevance of Disclosure dropped because it transpires that the complainant had If there is evidence that the defendant in fact infected the a sexual history with other people who might have been complainant, and was aware of the risk of transmission, the cause of their infection. Such practices are a source it may be possible to raise the defence of consent. In R. v. of great anxiety for many people living with HIV, all of Dica, the Court of Appeal made it clear that it would be whom risk investigation if an allegation is made against a bar to conviction if the complainant had consented to them. the risk of transmission. Although it was arguable that a The criminalization of reckless HIV transmission person to whom disclosure had not been made might still has been increasingly criticized, not only by legal be said to have consented if they were otherwise aware of academics, [See eg, Weait, Matthew, n.3, supra], Judges the possibility of their partner’s infected status, the court [Burris, Scott and Cameron, Edwin (2008) “The case indicated that consent would more usually exist after against criminalization of HIV transmission” Journal of prior disclosure. the American Medical Association 300(5):578-581], and In R. v. Konzani, the court refined its position, health professionals, [Wainberg, Mark (2008) “The making it clear that only a “conscious” or “willing” Johnson Aziga Case: HIV Transmission Should Not be a Crime”, McGill Reporter (1/12/08), consent on the part of the complainant would be effective. available at http://reporter.mcgill. The CPS Policy affirms in terms ca/2008/12/the-johnson-aziga-case“English criminal law that this does not mean that only hiv-transmission-should-not-beis far less Draconian in a-crime], but by a wide range of disclosure will suffice: national and international bodies its response to those who including the UK’s National “A complainant may be regarded transmit HIV and other AIDS Trust, [http://www.nat.org. as being ‘informed’ for the uk/Our-thinking/Law-stigmapurposes of giving consent serious STIs than many and-discrimination/Criminalwhere a third party informs the other jurisdictions.” complainant of the defendant’s prosecutions.aspx], World Health condition, and the complainant Organization, [WHO (2006) Report then engages in unprotected sexual activity with the of the WHO European Region Technical Consultation on defendant. Similarly, a complainant may be regarded the Criminalization of HIV and other Sexually Transmitted as being ‘informed’ if they become aware of certain Infections, Copenhagen, World Health Organization], circumstances that indicate that the defendant is the Open Society Institute, [OSI (2008) Ten Reasons suffering from a sexually transmitted infection, such to Oppose the Criminalization of HIV Exposure or as visiting the defendant while he or she is undergoing Transmission, found at http://www.soros.org/initiatives/ treatment for the infection in hospital”[Ibid]. health/focus/law/articles_publications/publications/10reas ons_ 20080918], the International Planned Parenthood Concluding Observations Federation, [IPPF (2008) Verdict on a Virus: Public English criminal law is far less Draconian in its response Health, Human Rights and Criminal Law, available to those who transmit HIV and other serious STIs than at http://www.ippf.org/en/Resources/Guides-toolkits/ many other jurisdictions. There is no liability merely Verdict+on+a+virus.htm], and UNAIDS, [UNAIDS for exposing someone to the risk of transmission, and (2008) Policy Brief: Criminalization of HIV Transmission, there is no HIV-specific criminal legislation which could Geneva: UNAIDS, available at http://data.unaids.org/ contribute to the further stigmatization of HIV positive pub/BaseDocument/2008/20080731_jc1513_policy_ people. criminalization_en.pdf ]. The circumstances in which a person may be There is no evidence that criminal prosecutions criminally liable are relatively tightly drawn. This should contribute to reduced risk-taking and may well have not, however, blind us to the fact that the investigation significantly adverse public health consequences, of alleged offences can cause considerable distress to especially for women and other vulnerable groups. It is those involved, whether critically important that where the imposition of criminal or not the prosecution is Reference liability is an option in principle, its use in practice be as ultimately successful. sparing as possible. J For a full discussion of In the Sarah Porter case the English law and cases see: Weait, Matthew (2007) (where the phylogenetic Author Details Intimacy and Responsibility: evidence was not the Criminalization of HIV challenged under crossSenior Lecturer in Law and Legal Studies Transmission, Abingdon: examination because she Birkbeck College Routledge-Cavendish. pleaded guilty) the original University of London
    
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