Wales

Two sections of a nineteenth century general criminal law (the Offences Against the Person Act 1861) related to grievous bodily harm can be used to prosecute either ‘reckless’ (section 20) or ‘intentional’ (section 18) disease transmission in Wales. Prosecutorial guidance has established that transmission of some STIs, including HIV, amounts to grievous bodily harm. Importantly, as these offences relate to the causing of ‘grievous bodily harm’, proven transmission, and not merely ‘exposure’, is required.

The maximum penalty for reckless transmission is a prison sentence of five years for each person someone is found guilty of infecting. The maximum penalty for intentional transmission is life imprisonment. Non-UK residents can be recommended for deportation upon completion of their sentence. Whilst courts have applied Sexual Harm Prevention Orders to a small number of individuals, mandating them to disclose their HIV-positive status before engaging in sex (see below), it is not mandated to disclose one’s HIV-positive status before sex in Wales.

Several appeal court judgements, as well as regularly updated guidelines from the Crown Prosecution Service, have established that a person living with HIV can only be found guilty of HIV transmission if all of the below apply:

• • They had sex with someone who didn’t know they had HIV (meaning that disclosure can be a defence).
  • They knew they had HIV at that time (although not testing despite strong evidence they might have been infected, known as ‘wilful blindness’, is not a defence).
  • They understood how HIV is transmitted and had sex anyway, or had sex with the intent to transmit HIV.
  • They had sex without using ‘safeguards’, which can include either condoms or being on effective antiretroviral therapy.
  • It can be proved beyond reasonable doubt that HIV was transmitted from the defendant to the complainant(s).

The latest update to the CPS guidance for England and Wales in March 2023 for the first time clearly endorsed the scientific consensus that having an undetectable viral load effectively eliminates the risk of HIV transmission (U=U), meaning that cases in which the accused’s viral load is undetectable should no longer be taken to court as the person could not be found to have been reckless about the risk of transmission.

Since the first successful prosecution in Wales, of a 20 year-old woman in 2005, there have been three other known HIV criminalisation cases, all for reckless sexual HIV transmission, the most recent taking place in Swansea in 2016.

In October 2020, a woman was charged and pled guilty to assaulting a police officer after throwing bloodstained clothes, saying they contained HIV and hepatitis. The defence argued that she had not been aiming at the sergeant but the magistrate found she had used the clothes ‘as a weapon’, and fined her 200 pounds as well as 50 pounds compensation to the officer and 85 pounds legal costs.