Since the human immunodeficiency virus (HIV) was found in Chennai in 1986, India has had an AIDS epidemic.  But today this issue not only revolves around transmission of HIV/AIDS but it has extended to criminal transmission of HIV. Thus, we need to determine what is criminal transmission of HIV? For this purpose a man is said to have done transmission of HIV with an intention to infect the other person from HIV under any of the three following situations:-
First: Sexual transmission where one person with an HIV infection engages in unprotected sexual intercourse with another intentionally; thus transferring the virus;
Second: Blood donation and transfusions or other medical procedures involving biological material such as blood, tissue, organs, or semen from an infected donor; HIV has been transmitted through the organ transplantation of kidney, liver, heart, pancreas, bone, and skin, all of which are blood-containing organs or highly vascular tissues (but not through transplantation of bone without marrow, corneas, etc.) intentionally.
Third: The use of unsterilized needles/syringes for medical, recreational drug use (including a range of drug paraphernalia), tattooing, body piercing, etc., intentionally.
Intentional (or deliberate or willful) transmission is the most serious form of criminal transmission. Intentional transmission of HIV can be done by individuals by using needles and such other implements to intentionally infect others with HIV. Other instances of this can be a situation where HIV positive people have sex with the intent of transmitting the virus to their partner. Intentional transmission can also be in case where a negative partner has an active desire to become infected with HIV. In such cases the parties are less likely to be prosecuted as they do with their consent.
The most vulnerable of these are the women and girls due to cultural norms which sanction multiple partnerships for men, sexual coercion and other forms of gender based violence. It is also due lack of education and employment opportunities given to them which makes it difficult for women to leave relationships which place them at risk of exposure to HIV. Reports indicate many women have acquired HIV in marriage and other intimate relationships, including where rape or sexual coercion have occurred. 
However, ironically applying criminal law broadly to HIV transmission may result in women being disproportionately prosecuted. Women often learn they are HIV positive before their male partners because they are more likely to access health services  and thus, are blamed for “bringing HIV into the relationship”. For many women, it is also either difficult or impossible to negotiate safer sex or to disclose their status to a partner for fear of violence, abandonment or other negative consequences. Women may face prosecution as a result of their failure to disclose for valid reasons.
Hence, to provide better protection to women from exposure to HIV there is an immediate need to enact and enforce laws protecting them from sexual violence, discrimination based on gender and HIV status, and inequality in employment, education, and domestic relations, including property, inheritance and custody rights.
The major issue here lies is proving that an individual has transmitted HIV and this can be exceedingly difficult at times. In cases where intentional transmission needs to be proven, evidence need to be given that the perpetrator actively intended and wanted to infect the other person. In cases of sexual transmission, proving intention can be practically impossible as the very nature of sexual HIV transmission means there are no witnesses. To prosecute such abettors the laws prevailing in the countries are to be applied, for instance in some countries still the crime of criminal (intentional) transmission of HIV has not been recognized, as in case of India. In some places there is no difference between the two.
Following is the scenario in different countries on this issue:
United States: As of the end of 2008, 36 states in America had prosecuted HIV positive individuals for criminal transmission or HIV exposure, with many having laws specifically mentioning HIV. Failure to disclose one’s HIV status to a partner is most often the only necessary basis for prosecution, rather than intent to infect someone else or actual transmission of HIV.
United Kingdom: Cases successfully prosecuted in England and Wales have been under Section 20 of the Offences Against the Person Act (OAPA) 1861, with the charge being ‘recklessly inflicting grievous bodily harm’. This carries a maximum five-year sentence. It must be proved that:
- The defendant did in fact infect their partner.
- The defendant was aware of the risk of transmission. In theory they may not have had a positive test, but they will have ‘known’ they were infected.
- The complainant did not explicitly give informed consent to sex with an individual they knew had HIV.
- The defendant did not take steps to protect their partner – consistent condom use is a defence.
Australia: Criminal HIV transmission in Australia is considered by both public health laws and criminal laws. Most states have public health laws relating to reckless or deliberate HIV transmission, or the risk of doing so. Only New South Wales makes illegal any sexual intercourse without disclosure. Australian state criminal laws that would likely apply to HIV transmission include criminalizing acts that transmit, or risk transmitting, a serious disease (including HIV), recklessly endangering another person’s life or causing grievous bodily harm. Sentences in different states range 10 years maximum imprisonment, to a life sentence.
India: A comprehensive law is still to be implemented on this point thus, most of the legal issues arising out of HIV/AIDS are currently governed by common law. The National AIDS Programme in India offers funding and other help to create awareness, encourage testing and use of condoms to prevent the spread of this deadly disease in our country. Very little of these laws are actually beneficial for AIDS patients as they are reluctant to assert their rights in courts and risk social isolation.
Concerns about miscarriage of justice:
Extending criminal liability beyond cases of deliberate or intentional HIV transmission to reckless conduct should be avoided as far as possible. Prosecutions and convictions in such cases are likely be applied disproportionately to members of marginalized groups, such as sex workers, men who have sex with men and people who use drugs.
These groups are often “blamed” for transmitting HIV, despite insufficient access to HIV prevention information, services or commodities, or the ability to negotiate safer behaviours with their partners due to their marginalized status. In jurisdictions where HIV transmission has been criminally prosecuted, the very few cases that are prosecuted out of the many infections that occur each year often involve people from ethnic minorities, migrants or men who have sex with men. A balanced approach should be taken or else, the inappropriate or overly-broad application of criminal law to HIV transmission would create a real risk to increasing stigma and discrimination against people living with HIV, thus driving them further away from HIV prevention, treatment, care and support services.
- Simoes EA, Babu PG, John TJ, Nirmala S,Solomon S, Lakshminarayana CS. Evidence of HTLV-III infection in prostitutes in Tamil Nadu (India).Indian J Med Res 1987;85:335-338
- Report on the ARASA/OSISA Civil Society Consultative Meeting on the Criminalisation of the Wilful Transmission of HIV, Johannesburg, South Africa, 11-12 June 2007
- UNAIDS (2007) Report of the International Consultation on the Criminalization of HIV Transmission forthcoming.
- Asia Pacific Network of People Living with HIV/AIDS (2004) AIDS Discrimination in Asia APN+, Bangkok, Gielen AC, McDonnell KA, Burke JG, O’Campo P (2000) “Women’s lives after an HIV positive diagnosis: disclosure and violence” Maternal and Child Health Journal 4(2): 111-120.
- GNP+, ‘Global Criminalization Scan’ website, accessed 10th Feburary, 2011. http://www.gnpplus.net/criminalisation/index.php?option=com_content&task=view&id=388&Itemid=45
- The Center for HIV Law & Policy (2010, December 8th) ‘Positive Justice Project: Prosecutions for HIV Exposure in the United States, 2008–2010, The Center for HIV Law & Policy’
- Australian Federation of AIDS Organizations (2006), ‘HIV Australia – Legal section, Vol. 5, No. 1’.
- http://www.lawisgreek.com/hiv-risk-at-mining-sites/ Indian Laws on HIV Risk at Mining Sites 2010-05-25 — LIG Reporter
- For example, see Human Rights Watch (2003) Policy Paralysis: A Call for Action on HIV/AIDS-Related Human Rights Abuses Against Women and Girls in Africa Human Rights Watch, New York and Human Rights Watch reports cited therein; Human Rights Watch (2006) Rhetoric and Risk: Human Rights Abuses Impeding Ukraine’s Fight Against HIV/AIDS Human Rights Watch, New York; Human Rights Watch (2004) Not Enough Graves: The War on Drugs, HIV/AIDS, and Violations of Human Rights in Thailand Human Rights Watch, New York; Human Rights Watch (2003) Injecting Reason: Human Rights and HIV Prevention for Injection Drug Users; California: A Case Study Human Rights Watch, New York
10. In the UK, for example, there have been only 15 prosecutions since 2001 compared to over 42 000 new HIV diagnoses in the same period, see www.nat.org.uk.
11. GNP+ Europe and Terrence Higgins Trust see (2005) Criminalisation of HIV Transmission in Europe: A rapid scan of the laws and rates of prosecution for HIV transmission within signatory States of the European Convention of Human Rights www.gnpplus.net/ criminalization/index.html
3rd Year Student, B.A.LL.B (Hons.)
Dr. Ram Manohar Lohiya National Law University
“[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]”