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The law surrounding criminal liability for HIV transmission is complex, but informing patients of potential culpability is arguably1 part of our professional duty. The purpose of this summary is to simplify and guide clinicians by explaining the legal basis for criminalising HIV transmission, defining reckless transmission and discussing how disclosure, condoms and treatment as prevention (TasP) may impact criminal liability. Lastly, it discusses how this information can easily be conveyed to patients.
HIV criminalisation refers to the investigation, prosecution and conviction of people for transmitting, or exposing others to HIV.2 In England and Wales, only the intentional or reckless transmission of HIV and deliberate (but unsuccessful) attempts to transmit are criminalised. In Scotland, however, where the legal system differs, reckless exposure may also be criminalised. ,3
Most criminal offences require proof beyond reasonable doubt of three things. First, the prosecution must establish the requisite act, conduct or consequence (known as the actus reus). Second, it must prove that the defendant intended the consequence or acted recklessly (known as the mens rea). Third, it must disprove any valid defence that the defendant may raise. The applicable law in HIV criminalisation cases is the Offences Against the Person Act 1861, which enables prosecution of …
↵ i In 2010, Mark Devereaux was prosecuted under the Scottish common law offence of reckless endangerment on four counts, although transmission had only occurred in one case.
Handling editor Jackie A Cassell
Funding None declared.
Competing interests None declared.
Provenance and peer review Commissioned; internally peer reviewed.
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