In 2000, the Home Office published a consultation paper on the law relating to manslaughter in which they said (section 4.3):
".. we made it clear that the Government proposed that only the intentional transmission of disease should be a criminal offence. This was in part because the Government is determined to ensure that people are not deterred from coming forward for diagnostic tests and treatment and for advice about the prevention of sexually transmitted diseases such as HIV or hepatitis B and that someone with such a disease should have no reason to fear prosecution, unless they deliberately set out to cause serious injury to another by passing on the disease. The Government remains wholly committed to this approach."
(Emphasis mine.)
However in the legal system of England & Wales, it is not just the Government through Parliament that makes the law: judges do so too by their rulings. As a result, what the Government said it did not want has happened and since 2003, about a dozen people – mostly men – have been tried in England and Wales for infecting someone with HIV, thus causing them 'grievous bodily harm' ("GBH"). A few more in Scotland, which has a different legal system, have been tried for 'culpable and reckless conduct' resulting in someone else being infected.
Today, there has been another conviction in England & Wales for HIV transmission.
Despite some consistently appalling misreporting in the media..
"Nottingham main jailed for deliberately infecting lovers with HIV"
.. says The Guardian's website in its headline section, taking the story from the Press Association. There are similarly wrong stories in the sites of the Metro and Daily Mail..
.. this is yet another case in which it was not suggested that the infection was deliberate: that the defendant set out to infect their partners.
Rather, it was 'reckless': they were:
- aware of a risk of infection
- but behaved in a way that was 'unreasonable'
- and which resulted in infection.
(This is the so-called 'Cunningham' test of recklessness, which requires the defendant to know that a risk is being taken, even if the injury is not intended.)
And reading the Nottingham Post's story, it's clear that this is what happened. Even the Crown Prosecution Service says it wasn't deliberate but reckless.
The Guardian has not always been so wrong about this. In 1997, they reported on a Finnish case where an HIV+ man was being charged with attempted manslaughter following sexual transmission. It was considered a sufficiently unusual story to devote the whole of the cover of the G2 section to a photo plus headline which asked the basic question: "should he be in court at all?" The story itself spread over two pages inside.
It's also clear that it's not just The Guardian and the Press Association that's hopelessly uninformed:
Speaking after the hearing, Detective Sergeant Andrew Hall who worked on the case said: "It has taken a long time to bring the case to court and we are pleased with the result today. The victims now have to live with a terminal illness.
Modern treatment means HIV infection is not a terminal illness. If the pair alleged to have been infected by the defendant smoke, it is vastly more likely that they will die as a result of smoking than being HIV+.
After about six months of treatment, they will be have undetectable levels of HIV in their blood. It's looking extremely likely that this means that they will be uninfectious and could not transmit HIV even if they wanted to.
I don't know why the defendant in this case was not on treatment. Given he is said to have discovered he was HIV+ seven years ago and these alleged infections happened five and four years ago, it's likely it wasn't available to him. I would hope and expect that he is being treated now.
But convictions like these should never have happened: the reasons the Home Office gave in 2000 remain valid today.
No-one has been protected by this conviction and I would love to know how many people could have been protected from HIV via PrEP – taking anti-HIV drugs before sex – with the money spent on investigating this case, holding the defendant in custody, trying him, and now imprisoning him.
Update:
After this was posted, the Guardian retracted 'deliberate' – "This article was amended on 16 August 2017. An earlier version said Reyes-Minana had been convicted of 'deliberately' infecting his partners. This has been corrected."
The Mail Online and the Metro also retracted it, but only the Mail Online said the story had been 'updated' (and didn't say how…)
As of the 17th, ITV News is still claiming 'deliberate'.
Amongst other UK news outlets that covered the story wrongly, even the Border Telegraph (regional paper for the south east corner of Scotland) and the Smallholder (news for owners of pigs etc) retracted the 'deliberate' claim.