A Critical Review of English Law in Respect of Criminalising Blameworthy Behaviour by HIV+ Individuals
| DOI | 10.1350/jcla.68.1.55.25842 |
| Author | Damian Warburton |
| Date | 01 January 2004 |
| Published date | 01 January 2004 |
| Subject Matter | Article |
A Critical Review of English Law
in respect of Criminalising
Blameworthy Behaviour by
HIV+ Individuals
Damian Warburton*
Abstract The spread of some illnesses between people is almost inevitable
and in many circumstances it would be ludicrous to propose attaching any
criminal liability. However, in the case of HIV, where successful transmis-
sion eventually causes the death of its host, and transmission methods are
well known, to grant impunity to those carrying this responsibility is a
difficult thing to accept.
This article is an examination of the status of English law as it presently
stands, where not only are remedies for assault still rooted in Victorian
legislation, but also where, crucially, a case decided under Victorian mo-
rality has dogged this area of law ever since.
At the eleventh hour of writing, the decision in R v Dica has turned the
whole discussion upside down; and then there is the question of whether
English law actually needs an HIV-specific statute.
In the late 1980s a 24-year-old Birmingham man called Roy Cornes
thrust the question of criminalising HIV-related conduct into the public
arena. Aware of his HIV+ status Mr Cornes continued to conduct sexual
relationships with several women and was subsequently accused of
deliberately infecting four of them with HIV, one of whom later died of
AIDS at the age of 20. West Midlands Police and the Crown Prosecution
Service claimed that they ‘were powerless to act against the man’.1
America has seen a politician call for people with AIDS to be tattooed2
and nearly every US state has an HIV-related statute in operation. In the
UK, civil liberty and equal rights groups advocate against the criminal-
isation of HIV-related behaviour, promoting instead what has mainly
been adopted until now, a public health approach. It is not at all clear
that education campaigns and a health-awareness-based policy have
been sufficient over the 20 or so years that HIV and AIDS have mani-
fested themselves. Perhaps there is also a place for the criminal law to
operate. It is arguable that an important step in controlling the disease is
punishing those who intentionally, or recklessly, expose others to it.
The World Health Report lists AIDS as the fourth biggest world killer,
with an estimated 5,000 new infections every day,3and the Health
Select Committee recently reported that ‘there are now more HIV
patients in Britain than ever before’.4AIDS has unquestionably become
a very real threat and the perception of it as a ‘gay plague’ has long since
* LLM, LLB (Hons).
1Guardian, London, 23 June 1992.
2 C. Feuer, Policing HIV, HIV Plus, March 1999, p. 1, www.aegis.com.
3 www.tht.org.uk/about_us/timeline.htm.
4 www.uk.news.yahoo.com/030611/80/e21tf.html.
55
been undermined, as heterosexual women now form the group most
severely affected.5
Nevertheless, public perception can vary drastically from the reality,
and people with HIV are often assumed to be drug users, homosexuals,
prostitutes and drop-outs and are shunned as outcasts. It is not difficult
to understand how HIV+ individuals may ignore their obligations of
disclosure and thus place others at risk, rather than disclose their status
and have this information exposed for public ridicule, or persecution6.
The virus
HIV needs little introduction, and it is probably sufficient to say that it is
still an incurable disease that will eventually attack infected persons’
immune systems to the point where they become susceptible to any
opportunistic illnesses and die. HIV ‘is present in all of the bodily fluids
of an infected person . . . however, it is only present in large enough
quantities to be infectious in blood, semen and vaginal fluids’.7The most
common routes of transmission therefore, include vaginal and anal
intercourse; needle-sharing; donation of blood, semen, or organs; and
pregnancy.8
The potency with which HIV does spread from person to person will
be seen to play a significant role in the debate on whether it is appro-
priate to attach criminal liability to that behaviour; and, if criminalisa-
tion is to be considered, it is prudent to be clear about at what point is a
person likely to realise that there is a problem.
Berklow has explained how a newly infected person will usually
become mildly ill ‘in the first few months following infection’,9but that
this is frequently attributed to influenza or another virus. Following this,
‘further symptoms may not appear in the individual for several years . . .
[but] HIV may still be transmitted to others during this latency
period’.10
During the asymptomatic period there is nothing to indicate infection
and short of conscientious awareness regarding activity the individual
may have indulged in, nothing to prompt an HIV test. This is arguably
the stage of the disease that most transmissions occur at and, as will be
seen, the stage where it would be most difficult, or even inappropriate,
to find a foothold for attributing criminal blame.
The second clinical stage occurs when the individual’s immune sys-
tem starts to deteriorate and this is termed AIDS-Related Complex
(ARC). The infected person ‘starts to manifest symptoms of the disease
5 www.cdc.gov/nchstp/hiv_aids/stats/exposure.htm.
6For a discussion of this, see: J. Hodge and L. Gostin, ‘Piercing the Veil of Secrecy in
HIV/AIDS and Other Sexually Transmitted Diseases: Theories of Privacy and
Disclosure in Partner Notification’ (1998) 52 Journal of Gender, Law and Policy 59.
7 Terrence Higgins Trust, HIV and AIDS: Information for Women (London, 1990) 7.
8 ‘It is estimated that there are currently 50,000 people living with HIV in the UK’—
therefore in a population of 60 million, 1 in every 1,200 people is infected,
www.tht.org.uk/hiv_info/stats.htm.
9 Berklow, The Merck Manual of Medical Information—Home Edition (Pocket Books:
New Jersey, 1997) 926–7.
10 Ibid.
The Journal of Criminal Law
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