Deliberate, Reckless or Accidental Transmission
For the vast majority of
people living with HIV, preventing others from becoming infected
with virus that they carry is a serious concern. HIV positive
individuals are, after all, only too aware of just how difficult
living with the illness can be, and few would wish it on anybody
This said, some HIV+ people do not always take
the precautions that they perhaps should. Scare stories of people
'deliberately' or 'recklessly' transmitting HIV to others have
appeared in the media since the epidemic first began, and more
recently, some of the individuals concerned have even been
criminally charged and imprisoned. But while at first thought it
might seem obvious and right to prosecute someone for carelessly or
purposely infecting another with an ultimately fatal virus, on
further reflection the idea can seem less straight forward. So what
are the issues that must be addressed when prosecuting someone for
transmitting HIV? Is it right to try and criminalise them? And what
can past cases teach us?
Before looking at the complexities of
prosecuting people for infecting others with HIV, it is first
necessary to understand the different types of transmission that can
take place. The definitions below are based on general categories
and are not specific to any particular country or legal system.
Most countries would
consider this to be the most serious offence that can be committed.
Some cases of deliberate transmission have involved individuals
(both HIV+ and HIV-) who have used needles or other implements to
intentionally infect others with HIV. Others have been based on HIV+
people who have had sex with the primary purpose of transmitting the
virus to their partner.
Deliberate transmission also
sometimes takes place when a negative partner has an active desire
to become infected with HIV (a practice sometimes referred to as
'sexual thrill seeking' or 'bug chasing'). This is unlikely to lead
to prosecution however as both parties consent.
This is where HIV is passed on through a
careless rather than deliberate act. If for example a person who
knows they have HIV has unprotected sex with a negative person and
DOES NOT inform them of the risk involved, this could be classed as
reckless transmission in court. "Reckless' here implies that
transmission did take place, but that this happened as part of the
pursuit of sexual gratification rather than because the HIV+ person
actually wanted to give their partner HIV (HIV is of course not
'automatically' transmitted every time someone has unprotected sex.)
This is the most common way that HIV is
passed on. A person is generally said to have accidentally
transmitted HIV if:
• They were not diagnosed or were
unaware that they had the virus, and therefore did not feel the need
to take measures to protect their partner.
were aware of their HIV+ status and they used a condom during sex,
but the condom failed in some way.