Written 8th October 2024 by Isobel Phillipson
What is intentional transmission of a sexually transmitted infection?
An individual can be charged with intentional transmission of a sexually transmitted infection, if they maliciously or intentionally tried to give the other person an STI. It is very common for intentional transmission cases to be reduced to reckless transmission.
Whilst it is possible to attempt to transmit an STI intentionally, it is not possible to attempt to transmit an STI recklessly.
The relevant offences will be those contrary to section 20 and/or 18 of the Offences Against the Person Act 1861 as the transmission of an STI is capable of amounting to grievous bodily harm.
How is intentional transmission of a sexually transmitted infection proven?
Each case is assessed on its own facts. In general, the prosecution must prove that the complainant has an STI which is capable of amounting to grievous bodily harm. They must prove that the defendant had a diagnosed STI at the time of sexual activity with that complainant, and that the defendant was aware that they had the STI.
Furthermore, it must be proven that the defendant intended to transmit the STI to the complainant, or foresaw the risk of transmission, and still unreasonably took that risk. Of course, it must be demonstrated that the defendant has indeed infected the complainant with the STI.
ACPO and the National AIDS Trust Investigation Guidance
ACPO and the National AIDS Trust Investigation Guidance have produced guidance, namely, Investigation Guidance relating to the Criminal Transmission of HIV to assist in prosecuting this kind of offence. This aims to achieve things such as informing the police about HIV from both a clinical and social perspective. It sets out the investigative process once an allegation is made. It provides information on HIV for police officers, such as when HIV can and cannot be contracted. There are provisions made for people under 18 who are accused of this offence. This includes particular care being taken in the handling of those investigations, as young people with HIV are especially vulnerable.
Confidentiality procedure is also discussed in this guidance. This includes advice such as the highest standards of confidentiality being used during the investigation, to protect the identities of the defendant and the complainant. Of note, it does state that a suspect’s medical records can be accessed either with their consent or using a court order.
There is an evidential flowchart which raises various factors that may arise in a case, which may have differing impacts on the outcome. For example, if the complainant consented to the risk of HIV infection at the time of the alleged offence, then it is likely there is no offence or no likelihood of a successful prosecution, albeit the case should be reviewed with the CPS to consult on this. This also applies if the defendant always took reasonable precautions to prevent transmission, such as consistently using a condom during penetrative sex.
What constitutes an offence of intentional transmission of a sexually transmitted infection?
In relation to whether the STI in question meets the criteria for grievous bodily harm, this is taken to mean really serious bodily harm. It is not necessary that the harm be permanent or dangerous. It is not necessary that the complainant requires treatment. The transmission of HIV or herpes, for example, has been found to be capable of amounting to grievous bodily harm.
It must be proven that the defendant had knowledge of their STI at the time of the sexual activity. If they were diagnosed after the activity had taken place, it is very likely that there would be insufficient evidence to proceed further. Difficulties arise when the two parties engaged in sexual activity on a number of occasions, and the defendant was diagnosed during this period. This is complex as it is possible that the complainant may have been infected at a time when the defendant did not know they had an STI. Unless there is other evidence that suggests knowledge prior to sexual activity, it is likely to result again in insufficient evidence to proceed.
If the defendant knew they had an STI but still went on to engage in sexual activity, this is usually enough to establish that they foresaw the risk of transmission.
Will it always be in the public interest to prosecute cases of intentional transmission of a sexually transmitted infection?
These kinds of cases are usually seen as being in the public interest to prosecute, however this does depend on the circumstances of the case.
How can Olliers help?
It is important to seek legal advice if faced with an offence of this nature.
Olliers has significant experience in defending allegations involving intentional transmission of a sexually transmitted infection.
If you are facing an allegation of this nature, please contact our new enquiry team on 020 883 6790 (London) or 0161 834 1515 (Manchester), email info@olliers.com or complete the web enquiry form below.
- About the Author
- Latest Posts
Isobel joined the firm in August 2021 after completing an internship at Olliers in June 2021. Isobel quickly progressed from our Litigation Support team to Paralegal, before beginning her training contract in May 2022. She is particularly interested in the Magistrates Court and hopes to join this team once she has completed her training contract.
