Aids
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Aids
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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 else.

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?

Deliberate, Reckless or Accidental?

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.

Deliberate (or 'Intentional')

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.

Reckless

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.)

Accidental

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.

They were aware of their HIV+ status and they used a condom during sex, but the condom failed in some way.