Sunday, 1 March 2015

SEX 360°: Criminalisation of HIV transmission

1.3.2015 by Mark Josef Rapa (Dip. Notary Public, LL.B (Hons)

This presentation is part of the Conference ‘SEX 360° The multidisciplinary approach to sexuality’ which is going to be held on Saturday 7th March 2015 at Skyparks in Luqa.

For further details and registration follow the link:


Under article 244A, of the Maltese Criminal Code [1] , introduced in 2005, transmission of HIV, be it intentional or arising out of recklessness is a criminal offence. The latter in virtue of the relevant Legal notice [2] published in 2005. To date we had one case law where this law was invoked and used. Our jurisprudence has used the Italian Jurist Antolisei’s commentary on the ‘Lesione personali e percosse’ to justify the inclusion of such a law into our legal system, which has established that; non-disclosure before unprotected sex is considered to be dolus eventualis, -indirect intention-.

Unlike Malta, the UK and Italy have adopted a mainstream approach using already existing provisions found in their Codes of Law, inter alia; bodily harm and grievous bodily harm. We have seen a number of case both in the UK [3] and in Italy [4] which will be used to address the issue of whether transmission arising from recklessness ought to be considered a criminal offence. 

The two major cases in the UK are R v Dica [5] (the first successful case in England and Wales for passing the AIDS virus) and R v Konzani [6] dating to 2003 and 2004 respectively. Both cases have instigated legal literature to be written on the subject. Racism, poor concrete evidence of the evidence are only two of the various issues which are addressed by Matthew Weait in his book ‘Intimacy and Responsibility [7] ’ and Prof James Chalmers in ‘Legal responses to HIV and AIDS [8] ’. 

UNAIDS argues that criminalisation should only take place when there is “actual” and “significant harm intentionally caused to another person” [9] and this happens when there is transmission of the virus, i.e. leaving out cases of recklessness. It is feared that criminalisation of HIV transmission would discourage people from getting tested for the virus, talking openly with physicians and disclose their status. The latter was also the worry of the British Home Office back in 1998 during the discussion re the Criminalisation of HIV into a separate offence discussed below: “…Nor do we want to discourage people from coming forward for diagnostic tests and treatment, in the interests of their own health and that of others,, because of an unfounded fear of criminal prosecution” [10] 

[1] Chapter 9 of the laws of Malta 
[2] L.N. 137 of 2005 
[3] Circa 14 cases. 
[4] Circa 10 known convictions
[5] [2004] 3 ALL ER 593
[6] [2006] Part 4 Case 9 [CAEW]
[7] Routledge-Cavendish, Abingdon and New York, 2007
[8] Oxford, Hart Publishing, 2008
[9] UNAIDS and UNDP ‘criminalization of HIV transmission: Policy brief and UNAIDS, Report of the expert meeting on the scientific, medical, legal and human rights aspects of the criminalization of HIV non-disclosure, exposure and transmission 
[10] Home Office 1998 S 3.16

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