Scots criminalisation of HIV transmission...

Intimacy and Responsibility: The Criminalisation of HIV Transmission was published in 2007 and written by Matthew Weait, a socio-legal academic at Birkbeck, University of London. For anyone interested in the area, it is an interesting jurisprudential overview, and simultaneously, a critical exposition of the suppositions underlying apparently straightforward public claims about guilt, responsibility – and criminalisation – of HIV transmission.

How to we think of harms? How do courts distinguish criminally actionable harms from those we leave unlitigated? What about risks and consenting to be subject to them? All of these issues are tangled into this story of Mark Devereaux’s conviction in Scotland on four counts of reckless endangerment. The conduct on which these charges were based on Devereaux having unprotected sex with four women, having previously been diagnosed with human immunodeficiency virus (HIV). While all four of these women were subject to the risks of transmission, only one woman, with whom Devereaux had a six month relationship, was subsequently confirmed to be HIV positive during pregnancy. He has not yet been sentenced.

To put the charge in its context, the general charges of reckless endangerment of the lieges and culpable and reckless injury criminalise any number of diverse undertakings. A quick flick through the Stair Memorial Encyclopedia yields the following examples

“… recklessly driving a horse and cart or other vehicle, recklessly navigating a ship, recklessly throwing or dropping a glass bottle from a high building, recklessly discharging firearms, recklessly releasing a dangerous animal, and recklessly burning stubble in a field, all in a manner and in circumstances which endanger the public … administration of cantharides to women (presumably as an aphrodisiac and not as a diuretic or vesicant); the administration of alcohol or other narcotic to young children; the removal of a dangerously ill person from his sick-bed, compelling persons to leave a ship embedded in ice; denying to a police officer about to conduct a search of one's clothing that one had a sharp object in that clothing, with the result that the officer was injured by that object…”

The first person in the UK to be convicted of an offence related to HIV transmission was Stephen Kelly, charged with and convicted of causing reckless injury in 2001. The 2007 case of Giovanni Mola attracted significant public attention at the time, and resulted in Mola being sent to prison for 9 years. It remains to be seen what tariff will be imposed on Devereaux. What do we think about it? Certainly, if you read Lord Hodge’s condemnatory obiter during sentencing in H.M. Advocate v. Giovanni Mola “… what you did to Miss X was chillingly callous and showed an utter indifference to her welfare…” Please note, I'm not suggesting by any manner of means that allegations of this sort are impossible, that we could scour the face of the globe and yield no examples. That said, tabloids are contemptible enthusiasts for this sort of account and discourse, the accused depicted as inhuman, premeditated, his inner life and the complexities of real life stripped of their uncertainties, their weaknesses. The Daily Record carries a classic example of the genre in its commentary on the case this morning.

That said, this is a detailed problem. Ought mere failure to disclose an HIV status to constitute culpably reckless conduct? What efficacy, if any, should wearing a condom have in exculpating a person when HIV transmission nevertheless occurs? This is a legal question, but it is not just a legal question. Lord Hodge again, from his sentencing statement,

“I do not consider that you can be criminally culpable and reckless on the ground only that you did not disclose your viral status … Non-disclosure of viral status and then sexual intimacy when using a condom may expose a partner to a relatively small risk of infection to which she has not consented. But medical practitioners are no doubt very aware of the damage to an infected individual caused by social isolation…it is not for me to judge the medical advice that you received…”

So, what is the law? What is in, what out? Change the fact-pattern just a little. Mola went out of his way to convince his partner to dispense with the prophylactic. Say he hadn’t, say they’d employed one – and transmission had nevertheless occurred. Hodge’s remarks seem to suggest that this may have operated as a defence – perhaps indicating the absence of recklessness. So much for the law – what about morally, is that blameworthy conduct? Even if it is blameworthy, is that sufficiently so to warrant prosecution and length prison sentences? Tweak the facts again. Say that the accused does disclose a known HIV status and proceeds to have unprotected sex. Criminal? Generally speaking, consent is no defence when an illegal act is subsequently prosecuted (as discussed at length in the celebrated case, in scrotum-tightening detail, of R v. Brown). If so, however unimportant it would prove in the ordinary life and in the ordinary bedrooms of people, the effect of such a law would be to absolutely prohibit sexual encounters if one of the people was HIV positive. (There are, as I understand it, also other complexities. There are different strains of HIV. As such, two HIV partners cannot necessarily engage in unprotected sex with impunity, as might be supposed if we imagine HIV along binary lines). And of course, a prohibition on such intercourse would effectively prohibit everything which flows from that – conception, childbearing, childrearing. Of course, its important to realise the large-scale autonomy of the social from the dry detail of the legal – of course, in the circumstances I’ve mention, folk will be able to bear children if they desire. Equally, however, is this a satisfying standard for our law to enshrine and dignify? I think not.

After all of this, reflect on the Devereaux case again. On your philosophy of criminalisation, on your theoretical justification for state sanction, is exposing someone to risk of HIV transmission a harm worth prosecuting? Is it truly the parallel of firing a blunderbuss in a crowded room, but miraculously, no soul was struck by the shrapnel? In three out of the four counts against Devereaux, no transmission occurred. Ought this to matter, legally, morally?

Numerous other issues can be ranked alongside these. In particular, there is a concern that if criminal recklessness relies on the accused’s HIV status being confirmed by medical science – wont those concerned at such prosecutions simply not get tested, recklessly avoiding allegations of criminal recklessness? Personally, I’m not persuaded that the level of legal consciousness is sufficiently high for this to be an overweening concern, but one must admit, it presents a sly mechanism for creative compliance which ought not to be encouraged. In this context, in response to these uncertainties (I’d say both morally and legally), that voices are speaking up from HIV Scotland and the National AIDS Trust, calling for clarification. Deborah Jack, Chief Executive of NAT recommends “that the Scottish Executive change the law so that people with HIV cannot be charged with culpable and reckless conduct if no transmission took place.” On a slightly different tack, with a slightly different public authority in view, HIV Scotland in the person of its Chief Executive, Roy Kilpatrick, said the following...

“We are particularly worried about the fact that prosecutions were brought in this case in respect of three sexual partners of Mr Devereaux who had not contracted HIV. We recognise that the primary motivation for bringing this prosecution must have been the actual transmission of HIV and that the prosecution would have felt it necessary to put the full context before the court. However, it would be alarming if the charges brought in this case open the door for future prosecutions in cases where no harm has been caused.”

Ending on a debbiepurdyesque point, Kilpatrick called for clarity in the prosecuting guidelines. In some respect, what is really sought is clarity in the law as much as anything else. Perhaps a Lord Advocate’s Reference – where points of law are put to the Court in the abstract, sans a particular accused and a particular victim – may be the very thing to sort this out. It’s a sufficiently knotty issue that I doubt Parliament and Ministers would want to touch it with the proverbial bargepole.