Criminal Justice System's Response to Non-Disclosure of HIV

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Part E: International Comparison of Approaches

Criminal law responses to HIV non-disclosure cases vary across the world. Some countries use criminal laws of general application to criminalize both HIV transmission and exposure cases or transmission cases only, while others have enacted HIV-specific criminal offences. Various U.S. states were the first to adopt HIV-specific criminal statutes in 1987, quickly followed by other jurisdictions.^{Footnote 113} Today, some jurisdictions in every region of the world have enacted HIV-specific criminal laws, including over thirty states and 2 territories in the United States.^{Footnote 114} According to a 2012 Background Paper commissioned by UNAIDS, high-income jurisdictions are the most active in prosecuting HIV non-disclosure cases^{Footnote 115} and the United States and Canada account for the majority of reported prosecutions of HIV-related cases based on absolute numbers of convictions, while Sweden and Norway have the highest numbers of known convictions per capita.^{Footnote 116}

In addition to reviewing variations in international approaches to HIV non-disclosure generally, the applicable laws of eight liked-minded, common law jurisdictions were reviewed in more depth, given the shared origin of our legal systems: England and Wales, Scotland, New Zealand, the Australian states of Victoria and New South Wales and the U.S. states of Iowa, Colorado and California. Although these jurisdictions take different approaches, the following general observations can be made:

• Most of the jurisdictions reviewed apply non-sexual offences of general application to HIV non-disclosure cases:
  • England and Wales, Scotland, New Zealand, Victoria, New South Wales and Colorado use longstanding offences of general application to address STI non-disclosure cases, including HIV, e.g., offences that prohibit inflicting grievous bodily harm, assault and causing serious injury to another.
  • In 2014, Iowa enacted new HIV-specific offences that apply to intentional transmission of HIV and reckless transmission of, and exposure to, HIV.
  • In 1998, California enacted an offence prohibiting engaging in unprotected sexual intercourse with intent to transmit HIV. However, on February 6, 2017, a Bill was introduced in California’s Senate that would repeal this offence and create a new misdemeanor offence prohibiting the transmission of any disease that is determined to have significant consequences for the physical health or life activities of the person infected.
• All of the jurisdictions reviewed criminalize intentional HIV transmission and most criminalize reckless transmission (only California does not specifically criminalize reckless transmission);
• All of the jurisdictions reviewed criminalize HIV exposure, but some more narrowly than others. For example, England and Wales and New South Wales only criminalize HIV exposure where intent to transmit HIV can be proven; in such cases, charges for attempt to inflict grievous bodily harm may be brought in both England and Wales and New South Wales;
• All of the jurisdictions reviewed apply more serious offences that carry higher maximum penalties to cases involving intentional HIV transmission and less serious offences that carry lower maximum penalties to cases involving reckless transmission or exposure;
• Two of the jurisdictions reviewed have issued prosecutorial guidelines:
  • In England and Wales, a policy statement and prosecutorial guidelines were developed to instruct prosecutors on the legal and policy considerations that apply when proceeding with a criminal prosecution in STI non-disclosure cases, including HIV.^{Footnote 117} The guidelines require that the Director’s Legal Advisor review all charging decisions and provide advice in appropriate cases;
  • In Scotland, a similar policy statement sets out guidance on how prosecutors should deal with STI non-disclosure cases, including HIV.^{Footnote 118} Notably, the Scottish prosecution policy specifies that a prosecution should only be contemplated in exposure cases in exceptional circumstances, e.g., where the accused embarks on a flagrant course of conduct, having unprotected sexual intercourse with several partners after failing to disclose their HIV status but, through good fortune alone, fails to transmit HIV.^{Footnote 119} The policy also specifies that there is a very strong presumption against prosecution when the person’s viral load is below 50 copies per ml of blood, given the minimal risk of transmission.^{Footnote 120}

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