When someone is convicted of an offence of recklessly transmitting HIV, courts appear to be increasingly minded to impose - in addition to the sentence for the offence - a Sexual Offences Prevention Order (SOPO) or - most recently an ASBO (Anti-Social Behaviour Order).
The most recent case (an ASBO) was that of Nkosinati Mabanda, who was sentenced to four years imprisonment in July 2011, with a recommendation for deportation on his release. Other cases include those of Derek Hornett (2009) and Nicholas Richards (2010).
In each of these cases the SOPO /ASBO included a requirement that the defendant must disclose his HIV status to partners before having sex with them.
The relevant legislative provision for SOPOS is Section 104 of the Sexual Offences Act 2003, which provides as follows:
"(1) A court may make an order under this section in respect of a person (“the defendant”) where any of subsections (2) to (4) applies to the defendant and—
(a) where subsection (4) applies, it is satisfied that the defendant’s behaviour since the appropriate date makes it necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant;
(b) in any other case, it is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant."
The relevant provision for ASBOs is Section 1 of the Crime and Disorder Act 1998 (as amended). This states as follows:
An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely—
(a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and
(b) that such an order is necessary to protect relevant persons from further anti-social acts by him.
A SOPO can, therefore, only be imposed where the court is satisfied that it is necessary to protect others from serious sexual harm, whereas an ASBO refers instead to relevant persons and further anti-social acts.
The question I ask here is simply this. Does an HIV disclosure requirement do this? I will concentrate here on SOPOs.
- There is no general legal obligation to disclose one's HIV status to others, even those with whom one is about to have sex (i.e. non-disclosure is not a crime - unlike some jurisdictions, such as Canada).
- There is no evidence of which I am aware that indicates a positive correlation between disclosure and subsequent safer sex. There is, however, evidence to contrary - that dislcosure is correlated with subsequent riskier sex (though the evidence for this is complex (see below).
- Consent by a partner to sex which carries the risk of transmission is a defence to a charge of reckless transmission (R v Dica).
- That consent must be a conscious or "willing" consent for it to be operative as a defence, and this will normally require disclosure of HIV status by the defendant (R v Konzani). It is however possible that consent will exist where the complainant knew of the defendant's HIV status via a third party.
All this makes for a bit of a muddle, both jurisprudential and otherwise. That muddle can be summarised as follows.
Disclosure is in almost all cases a pre-condition for the defence of consent. What does consent "do" legally? It negates the liability of the defendant. It negates the liability of the defendant NOT because he didn't have the requisite fault (he was still aware of the risk of causing bodily harm at the relevant time). It negates liability because the law treats the partner's assumption of risk as determinative of whether it is, in some sense, just or fair to allocate responsibility for an adverse outcome (in this case HIV infection) on the defendant and to punish him for this.
The SOPO that requires disclosure of HIV status on the part of the defendant reflects this idea, but in a perverse way. Because it is imposed to prevent serious sexual harm, the thinking must be that no harm will be caused (or will at the very least be minimised) if the defendant discloses his status to a prospective sexual partner. However, as stated above, there is no empirical evidence which correlates disclosure with safer sex. If HIV is still considered a "harm", irrespective of whether consent is given to the risk of its transmission, then a SOPO requiring disclosure will not prevent it.
What a SOPO can do is provide a partner with the opportunity to make an informed choice about risk-taking. The only thing a disclosure requirement in a SOPO can actually do, therefore, is to prevent uninformed decisions by a defendant's prospective sexual partners. It follows, I think, that to include an HIV disclosure requirement in a SOPO is wrong in principle and wrong in law. It is not necessary to protect others from serious sexual harm. It is not necessary because it is not a pre-condition to the practising of safer sex; it does not (in itself) protect others; and even if the requirement is obeyed it does not prevent a partner from the harm (which is the requirement's basic justification).
As an aside, it seems to me that there are other problems and questions.
- Suppose a John is made subject to such a SOPO, and fails to disclose his HIV status to Jane. Jane, however, knows that John is living with HIV because a third party told her. They have sex and Jane is infected as a result. John is still in breach of his SOPO, and the "harm" is not prevented. How should the courts deal with the breach of the order?
- Suppose John is on effective anti-retroviral therapy and has an undetectable viral load. There are no reported cases of transmission during sex where a person has an undetectable viral load. John has sex with Jane without disclosing. Jane is not infected. John is still in breach of his SOPO. To the extent that no "harm" has come to Jane, this is not the result of of a breach of the SOPO.
- Suppose John doesn't disclose but practises safer sex. Jane is not infected. Irrespective of the fact that John has acted responsibly and ensure the taking of precautions that we do know prevent onward transmission of HIV, he is still in breach of his SOPO.
- And what consitutes "sex" for the purposes of disclosure so as not to breach a SOPO? Only sex which carries the risk of transmission? All sexual activity?
These scenarios illustrate, I think, strong grounds for arguing that the imposition of a non-disclosure requirement in a SOPO is, without more, disproportionate. The Court of Appeal in R v Hancox held, in the context of a Serious Crime Prevention Order, that orders of this kind must be proportionate. I find it hard to see how a SOPO requiring disclosure - which cannot fulfill its purpose of preventing serious sexual harm and imposes a significant burden on the defendant - be proportionate. This is not to say that disclosure to prospective partners is not important, nor that ethically it may be the responsible course of action. I am simply suggesting that making it a legal requirement with serious consequences (including deprivation of liberty) for breach is highly problematic.
I should, finally, acknowledge that the evidence on the impact of disclosure on subsequent safer sex is - as stated above - complex. Dr Catherine Dodds of Sigma Research has pointed out to me, quite rightly, that the likelihood of subsequent unsafe sex is greater in longer term relationships, and that many people do in fact indicate that they would not have sex with a person who did disclose an HIV diagnosis prior to a first sexual encounter. On one level, this may provide a justification for those who approve of the approach being taken by the courts - on the basis that it reflects the importance people place on transparency. On the other I am not sure that even if this is true it is a strong enough justification. Put simply, even if disclosure does give potential partners this choice, it reinforces the notion that responsibility lies only with the person living with HIV, and that everyone else is entitled to assume that disclosure will be made. SOPOs and ASBOs requiring disclosure reinforce through law this (to my mind) dangerous model of sexual responsibility and impose a burden that should be shared. And it doesn't, I think, undermine the principal point I want to make here - that these orders can only, at best, provide a potential partner with a choice (a choice that they are also capable of making without disclosure).