Sitting in a small independent coffee house nestled in the backstreets of York writing the draft proposal for this piece, I got chatting to the waitress about what I was writing. A middle aged woman who remembered very clearly the AIDS campaigns of the mid 80’s, it was fascinating that she engaged me in conversation about the issue.
Primarily discussing whether people with HIV should have to disclose their status, she was of the firm belief that people with it should have to disclose to everyone. Even if it wasn’t a sexual encounter.
She was an educated lady, expressing her horror at the pandemic and fears that it is slipping off the radar of social issues requiring attention. However her lack of real understanding of the issue of HIV, coupled with her somewhat mis-informed view that HIV can be passed by day to day contact showed that there is still a lot of stigma surrounding HIV in the world.
I didn’t tell her that I myself was HIV-positive, nor did she ask.
I decided to write this piece after three main aspects of the issue played on my mind over the previous few months.
Firstly, a good friend of mine is constantly shunned by potential boyfriends once he discloses his status to them - a story all too familiar to anyone living with the virus. I’ve suggested perhaps disclosing to them upfront, to save all the hassle of getting to know them, falling in love, only to have them run a mile once the disclosure takes place. He won’t entertain this idea at all, vehemently dismissing it.
Secondly, my own HIV status, and how my attitude to the issue has changed since my diagnosis back in September 2011. It was Chris Ashford (lawandsexuality.wordpress.com) who first noticed that my attitude had mellowed somewhat, that I was appearing to be more “moderated” in my views towards the issue. Reading back over my last 12 months worth of posts, I can see where he is coming from. I’ll discuss more of what my views were, and what they are now, later on.
Thirdly, more importantly, and perhaps most worryingly for anyone HIV-positive in the UK today, a criminal prosecution case involving someone I know very well which took place in Yorkshire, back in 2008. This case has been well documented in various media forms, and was followed closely by those organisations monitoring the increasing criminalisation of HIV. However, to protect my friends identity there will be no names here, and I shall refer here on in to this person as Mr. X. More on that shortly.
I used to have the view that it was each and every single person's own responsibility to look after their own sexual health. It takes two to tango, and as such if you are going to go bareback, you should accept the risks that come with it. It wasn’t for the HIV-positive to inform the HIV-negative of their status, it was the negative's responsibility to be aware of the risk they were taking by having unprotected sex in the first instance.
Being vocal about this on my blog almost became a hallmark of my posts.
However, things have changed. My views have changed as a result of my diagnosis, and what's more since the early/mid 2000’s, the law has being stacking up quite heavily against HIV-positive people who don’t disclose their status, especially when that leads to the virus being transmitted.
The (UK) law as it stands fpr a prosecution to be successful is thus.
- The defendant must have known they were HIV+
- The defendant must know how HIV transmission occurs
- The defendant did not disclose their HIV+ status
- No condoms were used
- HIV transmission actually took place
The law surrounding transmission of HIV is a very vague one; it’s basically the 1861 Offences Against The Person Act, Section 20. The charge being; “Grievous Bodily Harm”. Since 2003, this charge has been penned as being “Reckless Transmission of HIV.”
Under this law, consenting to have sex with someone who has HIV gives that person a defence. Put another way, if A tells B he has HIV, and B still consents, then even if the above remaining 4 conditions are met, and B catches HIV – the fact that B gave his/her consent to A, gives person A a defence under the “Reckless Transmission of HIV” charge.
Where consent does NOT provide a defence, is if the charge is “Intentional Transmission of HIV”. However, to date there have been no actual prosecutions in the UK under this. But it’s not for want of trying by the police. If anyone finds themselves charged with intentional transmission, the advice is to seek IMMEDIATE legal advice so that this charade can be stopped before it sees the inside of a court room.
Now all this sounds fairly logical, and on the face of it, it is. The law is clear, concise and makes sense. In order for a conviction to be secured, the police and CPS (Crown Prosecution Service for those not familiar with the UK judiciary) have to satisfy those five points mentioned previously. If any one or more can not be met, then a conviction is in not likely, and the case should be thrown out. What’s more, once a case meets those points and makes it into the court rooms, there are more conditions to be met.
Firstly the complainant’s entire sexual history needs to be investigated thoroughly – each and every sexual partner they’ve ha, needs to be traced, tested and interviewed to rule them out as a source of HIV transmission. Further, a Phylogenetic Analysis needs to be done. This is a genetic test which can determine if the strain of HIV that the complainant has, is the same as the one the defendant has.
All this together; the Phylogenetic Analysis, the sexual history dirt digging and the five qualifying points, proving beyond reasonable doubt, that the defendant recklessly infected the complainant. Sounds fool proof, right?
Whilst the information relating to prosecutions is easily obtained (i managed to get all the essentials with a few hours of easy study of the National Aids Map and THT’s websites), it would appear that the people tasked with ensuring these laws are upheld, the police and the prosecution aren’t aware of what the guidelines are. They aren’t aware of what conditions need to be met, they don’t know how deep an investigation is required in order to bring a prosecution, and in the worst cases, they bring cases which have not been investigated properly at all.
“The prosecution, when making such allegations, have to prove that they have closed all the doors to the possible sources of infection. Again, in this case, they did not.”
Khurram Arif, HIV Defence Lawyer
The worst case of this I’m aware of, is something that’s pretty close to home as it happened in my own county, to a friend of mine (Mr. X.).
In 2008 a complaint was made to the police about Mr X, naming him as being the person that had infected the complainant with HIV. He was promptly arrested, and a ram-shackle investigation by the police made. The police submitted the case to the CPS, and he was charged. Months went by, and the case finally made it to Crown Court, where, on the day the trial was about to start, the case was suddenly dropped by the CPS, and Mr X. aquitted of all the charges against him. But not before the damage was done. He had been named by local media, his reputation was in tatters, and his once secret HIV diagnosis was now public knowledge – his employers, his friends, and his family all knew he had contracted HIV. Not exactly something you would want all and sundry to know if you’d planned on keeping it close to your chest!
So what went wrong? Well, a multitude of things really. It appears that the police were unaware of the guidelines, and hadn’t investigated the complainant's sexual history – the person in question had had numerous sexual encounters, with other HIV-positiive people, all of which had been unprotected. While Mr X hadn’t disclosed his HIV status to the complainant, he hadn’t denied the fact either, as no discussion about HIV had taken place. Further, the Phylogenetic Analysis hadn’t been completed – there was no evidence that the strain of HIV the complainant had was the same strain carried by Mr X. The case was well documented by various organisations which follow HIV prosecutions closely around the world, the most notable ones being George House Trust and Criminal HIV Transmission Blog.
Where does this leave us then?
Well personally, I believe it leaves those of us who are active on the bareback scene with a simple choice to make – in order to avoid the police thinking they can wheel us in front of a judge at the drop of a hat on a badly investigated case, we simply need to break one of the five qualifying points. The easiest of which, is that of disclosure.
Whilst not disclosing is itself not a crime and you cannot, supposedly, prosecute on the “risk” of HIV transmission, the above case shows very clearly that those tasked with bringing about prosecutions have little or no regard for the laws they’re supposed to be upholding.
In my view, not disclosing your HIV status is illegal in a defacto kind of way. If you can demonstrate that you’ve disclosed your status prior to an encounter taking place, there is no case to answer from the outset.
This is why I personally have taken the decision to be extremely out and open about my HIV status. It means that no one can accuse me of not disclosing to them, or being unaware that i am HIV+. Thus, with one of the five main conditions for making a conviction not being met, the prosecution don’t have a leg to stand on.
The only question left lingering in my mind, is thus: iIf by disclosing one's status, and your partner accepting the risks and giving his consent to engage in unprotected sex with you, knowing you’ve got HIV gives you a defence under the Reckless Transmission charge, how long is it before the police and CPS change their tact, and bring a prosecution for such a situation under the “Intentional Transmission” route?
ADDENDUM: I forgot to mention in my posting, that the above law also applies to Hep C and Hep B, as well as any other medical condition which is deemed to be “threatening to life” which is transmitted via sexual encounters.
The same balances and checks apply.
As a result, the key point is the issue of disclosure. Providing you disclose to your partner then you have covered your back as far as the law is concerned.
Non-disclosure may not be illegal in law, but by default, if you do not disclose, then you’ve put yourself at MASSIVE risk of criminal prosecution.
It should be noted that this is only true for UK law (England and Wales), in Scotland and Northern Ireland there are different laws, whereby for merely putting someone at risk is an offence. For the remainder of the world, you will need to check your own statute books.
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About the author: Longtime gay blogger focusing on bareback issues. Occasional columnist for PositiveLite.com. Bareback activist. Also a nice guy. From Yorkshire, UK. On twitter @JoshLandaleXXX (NSFW).