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Laws around HIV transmissions need urgent updating

11th December 2020

The criminal law in relation to HIV transmission has not kept up with the science, according to a team of researchers based at Northumbria, Kingston, and Oxford Brookes Universities. 

A study by the team has just been published in the latest issue of the academic peer-reviewed Journal of Criminal Law on ‘Bareback Sex in the Age of Preventative Medication: Rethinking the “Harms” of HIV Transmission’. 

Chris Ashford, Professor of Law and Society at Northumbria University commented: “The experiences of people living with HIV have been transformed over recent years. Advances in medical science have made the virus a manageable chronic condition, while eliminating the risk of onward transmission for those with access to treatment, something referred to as TasP (treatment as prevention) or U=U (undetectable equals untransmissible).”

Max Morris, Lecturer in Criminology at Kingston University added: “More recently, the availability of PrEP (pre-exposure prophylaxis), alongside PEP (post-exposure prophylaxis), through the NHS, has created the conditions for condomless sexual encounters to take place without the fear of HIV transmission associated with previous decades.”

He added: "Through the reframing of HIV transmission as an act of harm, criminalisation also implicates the positive partner as a ‘vector of disease’. In doing so, we argue that the language of law diminishes the humanity of HIV positive people by re-constituting them as a ‘danger’ or ‘threat’ to (‘innocent’) HIV negative people."

Alex Powell, based at Oxford Brookes University’s School of Law also commented: “The criminal law has continued to frame HIV in terms of personal responsibility and bodily autonomy within the dominant narratives of danger, disease, and out-dated science. Doctrinal law has failed to keep pace with social and scientific change.”

At present, there is no specific law or Act of Parliament in England and Wales that explicitly addresses the subject of HIV transmission. Nonetheless, the criminalisation of HIV has become the subject of growing academic and policy debate.  Falling under the scope of the Offences Against the Person Act 1861, the criminal law has established that HIV transmission can constitute an offence of Grievous Bodily Harm (GBH). In the article, the researchers considered the changing social and scientific landscape associated with condomless sex, to re-evaluate the development of law in this area, concluding that:

The criminal law in relation to HIV transmission has not kept up with the science.

If the purpose of HIV transmission is to prevent or regulate ‘serious harm’ (GBH), this definition should be supported by current research rather than outdated fear. The law may be contradictory on these terms by further contributing to medical and social harms such as stigma.

Information on similar research can be found on Northumbria Law School’s Gender, Sexuality and Law web pages.

 

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