The complexities of prosecution

Unfortunately deciding if someone has deliberately, recklessly or accidentally transmitted HIV is not as simple as the explanation above may suggest. The divisions between each of the three categories can be very blurred, and depend very much on individual interpretation. Even after a decision has been made, a court may still have a very tough time deciding whether to find someone guilty or not. Some of the most problematic issues include:

Proof

It might appear that proof is a straightforward issue, but proving that someone has passed on HIV can still be very tricky.

Firstly it needs to be proven that the accused (let's call them H+) was definitely the source of the accuser's (H-) HIV. This is normally done by comparing the DNA of the virus that H+ and H- are infected with (using a process called pylogenetics - see the Richard D. Schmidt case study below). If they are the same (or very similar), then it is very likely that H+ caused H-'s infection. If they are different then it means H- definitely did not acquire HIV from H+, and the case would be thrown out.

Secondly, if the DNA matches, it needs to be proven that H+ definitely caused H- infection and not the other way round. Sometimes this can be demonstrated by how advanced each person's illness is, but this isn't always possible. The only definitive proof would be a negative test on H- that was performed after H+ received a positive test.

Finally, in cases where intentional or deliberate transmission needs to be proven, evidence needs to be found that H+ actively intended and wanted to infect H-. Unless there is physical proof of this (e.g. a syringe filled with HIV+ material, a note, or a written confession), it can often just be one person's word against another. With cases of sexual transmission, this can be virtually impossible as the very nature of HIV transmission via sex means there are no witnesses: what happens in the bedroom is essentially private. If no evidence of deliberate transmission could be found therefore, a lesser charge of reckless transmission would probably be chosen. Whether someone can be legally charged with reckless (as opposed to deliberate) transmission depends entirely on an individual country's laws and courts.

Consent and Disclosure

Almost all criminal convictions involving sexual transmission are brought about because a positive person has failed to inform their negative partner about their status. In some cases, H+ my have actively lied in response to a direct question in order to persuade their partner to have unprotected sex. In others, H+ may simply not have mentioned their condition. A prosecution involving deception may carry a more severe penalty than a simple failure to disclose, because it affects a person's choice to consent to sex.

Consent is an important issue in all criminal prosecutions. If H+ had simply not mentioned they are HIV+, then the prosecution would probably argue that H+ has been reckless by not disclosing their status and not informing H- of the risks involved in intercourse. However, the defence could well counter this by saying that the balance of responsibility is 50:50, and that by agreeing to having unprotected sex, H- effectively consented to all the risks involved, including that of HIV.

The argument that non-disclosure equals guilt could potentially even be applied if H+ had used a condom. Some say that sex with a condom, but without disclosure of status should also count as reckless transmission. This is because condoms are not always 100% effective. If a condom fails therefore, and an individual becomes infected with HIV, there is potential for that person to accuse their partner of being 'reckless' for having withheld information that may have influenced their decision to have sex.

Assumed Status and Trust

Disclosing one's HIV status to an intimate partner can be extremely difficult, and the fear of rejection and stigma can often prevent people from being honest, particularly if they are worried about friends, colleagues or members of their family finding out. Likewise, asking about someone else's status can be hard because of the risk of offending them, or 'spoiling the moment'. In such circumstances, many people choose to make assumptions instead. Ironically, this is particularly true in high-prevalence areas or among high-risk groups where everyone has heard of HIV. A positive person who engages in casual sex with a negative person may, for example, assume that by failing to suggest the use of a condom or failing to ask about status, the negative partner is either already positive themselves or does not care about the risks of HIV. Likewise, a negative person may assume that by not using a condom and not talking about status, their partner must be negative too.

"If she was HIV+, she'd ask me to use a condom..."

"He's not using a condom, so he must be HIV+, like me"

There is also the issue of trust. Most would agree that a relationship can only work if both partners have faith in each other to be honest and truthful. But when one partner consistently lies or deceives the other, where does the blame lie? With the person who has been deceptive, or with the person who has been naive enough to trust them?