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Jo C.
Jo C., Barrister
Category: Law
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Experience:  Over 5 years in practice
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Is one liable for the transmission of HIV if one does not know

Resolved Question:

Is one liable for the transmission of HIV if one does not know one has it and engages in unprotected sex

Is one liable if one is diagnosed as HIV positive but does not tell the person with whom one engaged in unprotected sex
Submitted: 4 years ago.
Category: Law
Expert:  Jo C. replied 4 years ago.
HI.

Thank you for your question . My name is XXXXX XXXXX I will try to help with this.

In order to give you an answer tailored to your circumstances, I will just need to ask you some preliminary questions so that I can consider your position from all angles.

-Could you explain your situation a little more?

Customer: replied 4 years ago.

I am not sure what more information you need. I had protected sex with a working girl in February 2013. I was diagnosed HIV- positive in hospital in April 2013

Expert:  Jo C. replied 4 years ago.
I just need 20 mins or so to look at the case law if thats OK but almost certainly good news.
Customer: replied 4 years ago.

Fr Jomo 1972. Sorry. I meant to say that I had unprotected sex with a working girl in Feb 2013 with her consent and was diagnosed HIV-positive in April in hospital. The second question is: am I liable to inform her of my condition now I know it?

Expert:  Jo C. replied 4 years ago.
Thanks.

I am almost sure you are not liable but I just need to look up why if thats OK?
Customer: replied 4 years ago.

For JOMO 1972. Just to clarify, I had UNprotected sex with a working girl with her consent in Feb 2013 and was diagnosed HIV-positive in hospital in April 2013. Am I now legally liable to tell her of the situation?

Customer: replied 4 years ago.

FOR JOMO 1972 yes that's ok

Expert:  Jo C. replied 4 years ago.
Thanks.

I'm just researching it.
Expert:  Jo C. replied 4 years ago.

Thanks for the information and for the time.

The short answer is probably not.

There is an offence under S18 Offences Against the Person Act 1861 of intentionally infecting another person with HIV. There is an offence under S20 of recklessly doing so.

It is fair to say that its not often prosecuted. Its quite difficult to prove the source of the infection. If by ‘working girl’ you mean a prostitute then obviously that is even harder to lay at your door. I am not sure, on the face of it, how it would be possible to prove that none of her other clients may have been responsible.

However, it is clear that it does not necessarily demand that the infected person is actually diagnosed at least in academic law. Obviously in practical law a prosecution of a person who was not at the time of the sex diagnosed is incredibly unlikely as the Crown would have to prove knowledge.

Knowledge can be proven in other ways. You do not have to know you are suffering from HIV. If, for instance, there were symptoms at the time that you had sex but no diagnosis then that might amount to reckless although, quite frankly, I don’t know how they would prove it.

On the positive side, there is case law that this does not amount to rape - R v B [2006] EWCA Crime 2945.

In terms of civil actions, she is not going to sue you. It would be very expensive to do that. Also, she still has the same provenance problems.

In terms of your future obligations, you do not actually have a duty to her to disclose. It is open to debate though whether you could be liable in civil law to her subsequent partners if she were to pass this infection onto them without knowledge.

There is no prospect of that being prosecuted as a S18 and S20. It was difficult enough to apply the OAPO 1861 to the transmission of HIV from one person to another so the higher courts are not going to extend it.

There could be a personal injury argument though although I think a court would probably say it was too remote from your decision not to disclose.

To protect yourself though, I would tell her at this stage.

Hope this helps. Please let me know if you need more information.
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