2021 is the 40th anniversary of the US Centers for Disease Control and Prevention report acknowledging the HIV/AIDS pandemic. HIV Justice Worldwide has issued a warning based on lessons learnt from the HIV pandemic that communicable diseases are public health, not criminal issues and that using the criminal law in relation to COVID-19 should be avoided.

Imposing criminal liability for viral transmission seeks to assign culpability to an individual with little or no regard to the context of that person’s decision-making and, certainly in the context of HIV, significant stigma (see The Risks of Criminalizing COVID-19 Exposure: Lessons from HIV, Human Rights Brief, Vol 24 Issue 1 2020). Viral transmission is primarily a public health issue but it can, in principle, be the subject of reckless or intentional assault charges in England and Wales or, where relevant, as an assault against an emergency worker.

Current CPS guidance, developed in relation to the transmission of HIV, has been carefully developed to limit criminalisation to activity whereby a person intends the consequence of infection to occur but, since COVID-19 is now the subject of a programme of vaccination and HIV is now treatable to the extent that people are undetectable and untransmissible (U=U), we need to question the justification for criminalisation.

The two key issues that appear to emerge are the use of criminal law in this context to punish deception and, conversely, the use of criminal proceedings to control high risk behaviour. Practitioners have warned that COVID-19 transmission could be the subject of criminal proceedings (see COVID criminality, New Law Journal, 11 September 2020).

We urge caution and suggest that progress towards decriminalisation to reduce stigmatisation is impeded when the law on deception (following R v Lawrance [2020] EWCA Crim 971) remains unclear and unresolved. R v Rowe [2018] EWCA Crim 2688 concerned the alleged intentional transmission or attempt to transmit HIV by a male who deceived partners as to his HIV status charged as an offence against the person. Lawrance concerned a lie about a vasectomy charged as a sexual offence. It is likely there is a policy not to define pregnancy as harm but it is not otherwise clear why HIV remains characterised as serious harm, certainly now that it is treatable, at least in jurisdictions where effective treatment is available and accessible. In addition, there looms the prospect of criminal liability for serious sexual offences where a person living with HIV is undetectable and presents no risk to a partner but fails to disclose their status or lies about it when asked.

In England and Wales there is no liability merely for exposing someone to the risk of infection (though there is if a deliberate attempt to transmit is proven). Crucially, following R v Dica [2004] EWCA Crim 1103 and R v Konzani [2005] EWCA Crim 706, there is no criminal liability for recklessly causing serious harm where a person who has acquired HIV consented to the risk of being infected. However, such consent must have been ‘conscious and willing’. Deceit will prevent the partner from successfully claiming the defence of consent. But deceit by a person with an undetectable viral load who cannot pass on HIV to a sexual partner may nonetheless be the subject of an invasive investigation.

Following Lawrance, where deception as to a vasectomy did not deprive the victim of their freedom or capacity to choose to have sex with him, in the context of an alleged sexual offence, the determinative question seems to be whether the deceit ‘was sufficiently closely connected to the performance of the sexual act, rather than the broad circumstances surrounding it’ but the Court of Appeal indicated that deception was a spectrum and that there is no bright line between active and passive deceit. This case-by-case basis comes with no clear test as to what will be considered to be legally relevant nor how the public are meant to know what is lawful and what is not. While we can now assume that HIV transmission following deception as to status would not be charged as a sexual offence but could be charged as an assault, the concept of conditional consent remains open.

The decision in Rowe leaves the situation all the more complex. Hallett LJ identified the factors that might allow for a conclusion that D was ‘in control’ of the virus which might vitiate the issue of intention Evidence Mr Rowe was trying to control his viral load with alternative remedies was not sufficient. He was found to have lied about his status and, despite the transient nature of his relationships, his promiscuity was used as evidence of intention. The court rejected the submission that the jury should be directed on the distinction between high risk and intentional conduct in this context and rejected the suggestion to remove the classification of HIV as serious harm, despite it being a treatable illness. It also did not seek to approach the policy for non-stigmatisation of those living with HIV as relevant in the same way as the law has progressed to decriminalise trafficked persons who commit crime.

The latest approach seems to be that viral transmission is, in principle, a consequence of an act of sexual intercourse but viral control is not a condition of consent. This leaves us with no clear limit to the use of criminal law on viral transmission, particularly where there is deception, but some guidance on what might be charged. However, the jurisprudence is less developed as to when viral transmission should be investigated or charged at all. Policy is limited to what is said to be the most egregious offences but common sense does not tell us which ones they are. Despite the attempt to create a distinction between conduct and consequences, there remains a danger that partners who transmit a virus will be faced with investigations based on the fact of transmission and an inference that non-transmission was a condition of consent. If the limits of the application of law are not certain and clear, there is real potential for over-criminalisation of the general public in the context of viral transmission because the law is not clear on what conditions vitiate consent nor which consequences are sufficiently fundamental to be unlawful. The answer is to decriminalise viral transmission.