Germany HIV popstar conviction: what would happen in the UK?

26 August 2010 by

Updated, 1 Sep | The high-profile criminal trial of a German popstar who caused her former partner to be infected with HIV has resulted in a 2-year suspended sentence. In other words, she has been convicted but escaped jail. What would happen in similar circumstances in the UK?

The facts of Nadja Benaissa’s case were relatively simple. She had been infected with HIV since the age of 16 and is 28 years old now. She had sex with three people without telling them she was infected, and as a result one of them became infected himself. She claimed that she did not intend to infect him, and that she had been told by doctors the risk of passing on the disease were “practically zero”.

The law in England and Wales on HIV infection in such cases is now clear. In the case of R v Dica [2004] 2 Cr.App.R, the Court of Appeal ruled that a person who did not intend to infect his consensual sexual partner will be liable to conviction for inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861. The offence was coined “biological” grievous bodily harm. Mohammed Dica was refused leave to appeal to the House of Lords (now the Supreme Court).

It is, however, possible for a sexual partner who knows their partner is suffering from HIV to consent to the risk of infection, therefore providing a defence to criminal charges. This consent must be “informed” (R v Konzani [2005] 2 Cr.App.R 14, CA). This consent does not necessarily rely on the HIV sufferer telling their partner they have HIV; it could arise, for example, if the partner knew by other means that their partner had HIV. The defence of consent is not available if a person intended to infect their partner with the disease.

The maximum sentence for a section 20 offence is 5 years imprisonment for an individual charge, although this could be increased if a defendant has infected more than one person. It is quite possible that a suspended sentence could be imposed in a case such as Ms Benaissa’s here, but in Mr Dica’s case he was ultimately sentenced to 4 1/2 years in prison, which the Court of Appeal then upheld.

The position in Scotland appears to be similar. According to Wikipedia (admittedly not a cast-iron legal source), in February 2001 Stephen Kelly, an ex-prisoner and former IV drug user, was convicted of the Scots common law offence of “recklessly injuring” his former partner by infecting her with HIV.

So, there is general a legal duty by HIV sufferers in the UK (and certainly in England and Wales) to tell their sexual partners that they suffer from the disease, and a conviction similar to that of the German popstar could happen here.

At present, the duty to inform others of the disease appears only to extend to HIV sufferers and not to their treating doctors. Last year, in the case of Colak and Tsakiridis v. Germany, the European Court of Human Rights held unanimously that there was no breach of Article 2 (the right to life) of the European Convention on Human Rights by Mrs Colak‚Äôs doctor for failing to inform her that her companion was suffering from AIDS.

HIV infection is a controversial and developing area of criminal law. According to the informative Wikipedia page on the topic, there have been 7 such convictions in the UK. Mr Dica’s 2004 case was seen by some as a dangerous precedent which could unduly criminalise HIV sufferers and deter people from being tested for the disease.

Update, 1 Sep 2010: The BBC News reports that a Kent man who “knowingly” infected a 19-year-old woman with HIV in June 2008 has been jailed. He admitted grievous bodily harm and was jailed for a year for the offence, and given a five-year sexual offences prevention order (see this explanation of the orders) which stops him from having unprotected sex or not telling a partner about his HIV. From the length of the sentence, it can probably be inferred that the defendant did not intend to infect his partner; rather, he was reckless to the risk.

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  1. Adam Wagner says:

    Many thanks for the comment Lallands Pete Worrier. I have amended the post to include and distinguish the position in Scotland.

  2. You’re not quite right here Adam. I can’t speak to the English cases you mention, but there is no such thing as “the law in the UK on criminal HIV transmission”. In particular, the Offences Against the Persons Act 1981 explicitly does not apply in Scotland (I think at section 78), so it can hardly furnish us with a UK-wide understanding, encompassing our disparate systems of criminal law. This distinction is hardly new. Scotland’s separate criminal law has a long history. Up here, HIV prosecutions have proceeded and convictions made on the basis of the Common Law offence of reckless endangerment. While I’m not an expert of the jurisprudence, I am aware that a number of uncertainties persist in the Scottish judgements about the precise conduct which is criminal, whether or not a partner must be told of their status before sex – and what defences an accused person might propone, including their use of contraception, despite keeping their HIV status to themselves.

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