HIV and the Criminal Law

Where HIV is a crime, not just a virus
A global picture of HIV and the criminal law

HIV Treatment Update, August/September, 2010

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Since 1987, when prosecutions in Germany, Sweden and the United States were first recorded , an increasing number of countries around the world have applied existing criminal statutes or created HIV-specific criminal laws to prosecute people living with HIV who have, or are believed to have, put others at risk of acquiring HIV. Most of the prosecutions have been for consensual sexual acts, with a minority for behaviour such as biting and spitting. In the majority of these cases, HIV transmission did not occur; rather, someone was exposed to the risk of acquiring HIV without expressly being informed by the person living with HIV that there was a risk of HIV exposure. In the cases where someone did test positive for HIV, proof that the defendant intended to harm them and/or was the source of the infection has often been less than satisfactory. 

Nadja Benaissa's HIV trial is a distracting sideshow
Laws and prosecutions as a result of non-disclosure of HIV-positive status are ineffectual, counterproductive and unjust

Comment is free, The Guardian, August 17 2010

The trial of No Angels singer, Nadja Benaissa, began this week and has already received worldwide media attention. It highlights what experts working in HIV prevention, treatment and care have long argued: that laws and prosecutions as a result of non-disclosure of HIV-positive status are ineffectual, counterproductive and unjust. 
People with HIV around the world – including Benaissa – are being scapegoated for our collective failure in preventing new HIV infections. Moreover, it is the stigma surrounding HIV – exacerbated by the media circus that accompanies such trials – that results in far more new infections than the exceedingly rare case of an individual facing the attention of the criminal justice system.

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The Guardian)

Swiss court rules all people with HIV can be criminally liable for transmission, even if untested

aidsmap news, July 18, 2008


Switzerland's highest court - the Federal Court in Lausanne - has ruled that a man who was unaware of his infection when he had unprotected sex that transmitted HIV is still criminally liable. The ruling suggests that unprotected sex in Switzerland without first disclosing a sexual history may result in prosecution should HIV be transmitted.

Texas jury concludes saliva of HIV-positive man a ‘deadly weapon’, sentenced to 35 yrs jail

aidsmap news, May 16, 2008


A 42 year-old HIV-positive man from Texas who spat at a police officer during his 2006 arrest for being drunk and disorderly has been sentenced to 35 years in prison by a Dallas court and must serve at least half of his sentence before being eligible for parole because the jury found that his saliva was a deadly weapon.

Scientific evidence alone cannot prove liability in criminal HIV transmission cases

aidsmap news, February 28, 2007


A briefing paper published today jointly by NAM and the National AIDS Trust (NAT) explains why criminal investigations of alleged sexual HIV transmission cannot be proved conclusively by scientific evidence alone. HIV Forensics: The use of phylogenetic analysis as evidence in criminal investigation of HIV transmission is aimed at virologists and other potential expert witnesses as well as people working in the criminal justice system, but may also be useful for those supporting HIV-positive individuals as either potential complainants or defendants.

Safer law: moving from theory to practice

aidsmap news feature, July 19, 2006


The criminalisation of HIV transmission may be the starkest - and most publicised - intrusion by the law into the lives of HIV-positive individuals, but it is certainly not the only way that the legal system is changing the face of HIV in the United Kingdom in 2006. In addition to criminalisation, concerns by both doctors and patients regarding confidentiality; the recent calls for HIV-testing of all immigrants; the lack of access to treatment for - and dispersal or deportation of - many so-called asylum seekers; and debates around HIV and sex education in schools, mean that the legal aspects of HIV have become a major concern for many people involved in HIV prevention and treatment, as well as those who provide all kinds of support for HIV-positive people.

© 2008 - 2011 Edwin J Bernard