Action toolkit

Sexual exposure/transmission defence

Defence Toolkit For: Lawyers, paralegals & advocates

The Allegation: HIV non-disclosure, exposure or transmission in relation to sex

Take action! Provide a vigorous defence. Oppose mandatory HIV testing. Inform. Educate. Protect.

People living with HIV may face criminal prosecution if accused of not advising a sexual partner of their HIV-positive status prior to engaging in sex, for participating in sexual activites with a perceived or potential risk of of HIV transmission, or for allegedly transmitting HIV to a sexual partner. Unless transmission with intent can be proven, such criminal prosecutions are unjust and detrimental to the HIV response.

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Fact:

A person living with HIV who has an undetectable viral load cannot transmit the virus to another person through sex.

Find relevant laws (by jurisdiction)

What is the criminalised act (actus reus)?

Non-disclosure: not revealing one’s HIV-positive status to sexual partner prior to sex. 

  • Where non-disclosure is criminalised, it may be a strict liability offence or it may be tied to a specified level of HIV transmission risk (e.g. “realistic possibility of transmission” in Canada).

Potential or Perceived Exposure: engaging in a sexual act that potentially exposes (or is perceived to expose) another person to HIV, and therefore could potentially have resulted in HIV transmission.

  • Where semen, vaginal or anal secretions, or blood are transfered from a person living with HIV into another person, that person may be exposed to HIV. In alleged exposure cases, the complainant is HIV-negative.

Transmission: engaging in a sexual act that is believed to have resulted in HIV transmission.

  • Vaginal or anal sex with fluid exchange can result in HIV transmission. In alleged transmission cases, the complainant is HIV-positive.
  • Phylogenetic analysis can be used to exclude the possibility of transmission between two or more people, but it cannot definitively prove the source or timing of an infection.

Note: Some laws state that the criminalised act is transmission, but people have been prosecuted in relation to exposure or perceived exposure.

Factors of potential relevance to the defendant’s intent (mens rea):

  • Was the defendant diagnosed HIV-positive before the incident?
    • If not, it is unlikely that they were acting with relevant intent. 
  • Did the defendant understand how HIV is transmitted?
    • A lack of understanding may undermine allegations that the defendant had relevant intent.
    • If yes, and they engaged only in sexual activities with no or negligible risk of transmission, this could be evidence of a lack of intent.
    • If the defendant knew that an undetectable viral load makes sexual transmission impossible, this knowledge could also undermine allegations of intent.
  • Were protective barriers used (i.e., condoms)?
    • Taking active steps to prevent transmission stands in opposition to an intent to expose/transmit. 
  • Was the defendant on treatment? Did they have an undetectable viral load?
    • If on treatment, they may (rightly) have assumed they could not transmit the virus which undermines allegations of intent. Even if they did not know their viral load at the time of the incident(s) in question, being on treatment reduces the possibility of transmission (having an undetectable viral load reduces that possibility to zero).
    • Having a high viral load when tested in prison does not mean that the defendant had a high viral load at the time of the alleged incident.
  • Is there independent evidence of (lack of) intent or prior disclosure? 
    • Messages, information provided on a dating profile, conversations, and other statements may provide helpful evidence.
  • Was there violence, coercion or control? 
    • A person experiencing violence, coercion or control may not be in a position to disclose their HIV-status or negotiate safer sex. 
    • An abuser may make false allegations of HIV non-disclosure, exposure or transmission. 
  • Did the complainant consent to the risk of HIV exposure/transmission? 
    • If yes, there is little justification for a prosecution.

Note:

Note: Depending on the criminal offence and the jurisdiction, the standard required for conviction could vary (e.g. purpose, knowledge, recklessness, or negligence) and relate to non-disclosure (intent to deceive sexual partner or conceal HIV status), exposure or transmission.

Intention cannot be assumed from the mere fact of engaging in sex that may risk exposure or transmission. International guidelines recommend intent to transmit as a requirement for prosecution, but prosecutions proceed with lower standards of intent in many jurisdictions.

Fact:

For HIV transmission to occur, certain basic conditions must exist:

  • There must be a sufficient amount of the virus in particular bodily fluids (i.e. blood, semen, pre-seminal fluid, rectal fluids, vaginal fluids, or breast milk).
  • A sufficient quantity of at least one of those bodily fluids must come into direct contact with sites in the body of an HIV-negative person where infection can be initiated. These are usually mucous membranes, damaged tissue or inflamed ulcers, but not intact skin.
  • The virus must overcome the person’s innate immune defences so that infection can be established and propagated.

Source: Expert consensus statement on the science of HIV in the context of criminal law (JIAS, 2018) 

Action: Learn more about HIV criminalisation

The criminal law is often applied to people living with HIV in a manner that is inconsistent with up-to-date scientific evidence, including overstating the risks of HIV transmission, and overstating the harm to a person’s health and well-being from being exposed to HIV.

In addition, the criminal system often conflates the intention to have sex that may risk HIV transmission with intent to do harm, and it tends not to appreciate how unreliable scientific tests are for determining whether the defendant was the source of the complainant’s infection.

To learn more, register for the HIV Justice Academy’s course on HIV criminalisation here.

Action: Challenge assumptions regarding HIV transmission

The fact that a defendant tests HIV-positive at the time of arrest does not mean they were aware of their HIV status at the time of the alleged incident. 

The fact that the complainant was unaware of their HIV-positive status at the time of the alleged incident does not necessarily mean the accused is the source of their infection. 

Be aware of the limitations of phylogenetic analysis. It can not definitely prove the source of an HIV infection. 

The essential documents

Other helpful resources

Relevant case Law

Action: Challenge the criminalisation of HIV non-disclosure, exposure and transmission

HIV criminalization – Human rights fact sheet series (UNAIDS, 2021)

Have a look at these fact sheets and other resources from UNAIDS to familiarise yourself with some of the communities that are impacted by HIV criminalisation.

Action: Advocate for uninterrupted access to HIV treatment

Antiretroviral treatment must be taken consistently in order to be effective. If your client is in prison or another closed setting, advocate for their uninterrupted access to HIV treatment from arrest to release, and for other medical needs such as nutritional supplements, tuberculosis testing and treatment, prevention and treatment of sexually transmitted infections, and opioid substitution therapy. 

HIV-related medical needs are another reason to avoid pre-trial detention and custodial sentences, whenever possible.

Action: Protect your client’s privacy

Information contained in your client’s medical records can be used against them in a prosecution. Proceed with caution when police or prosecutors request medical records or HIV test results.

Public disclosure that your client is living with HIV could have negative effects on their life. Where available, in camera proceedings, publication bans, and other privacy protections may provide some protection.

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