Travel, mobility and migration are increasingly part of our lives.
It’s important to be aware that in a number of countries, criminal law is being applied to people living with HIV who transmit or expose others to HIV infection. Different countries have different laws.
Currently, criminal prosecution for the sexual transmission of HIV remains untested in Ireland, in both the Republic and Northern Ireland.
The following is an example of how the law has been applied in England and Wales.
This is not legal advice. It is an example that you may wish to consider when making your choices about disclosure.
In England and Wales, people living with HIV may be prosecuted with ‘reckless HIV transmission’ under section 20 of the Offences Against the Person Act 1861. It’s worth noting that this guidance applies to England and Wales only, although the Offences Against the Person Act still applies in Northern Ireland.
In the UK, based on the criminal prosecutions to date, a person may be prosecuted for reckless transmission of HIV if:
- the person knows he/she is HIV positive.
- the person understands the risk of HIV transmission.
- the person engages in risk taking sexual behaviour, and as a result the person infects his/her sexual partner.
- the person has not previously disclosed his/her HIV status to that sexual partner.
Although UK law does not precisely define ‘safer sex’, from the cases brought to court so far in the UK, it seems that a person will not be prosecuted if condoms are used for anal sex – as long as they have been used 100% of the time.
The law in the UK is not explicit in relation to a situation where a condom splits or slips off. The advice given in the UK is to disclose HIV status immediately and advise your sexual partner to get PEP.
The UK law covers any serious infection that is passed on sexually, so a prosecution for the transmission of Hepatitis C is also possible.