Infectious laws

At first it seems like a ‘fair cop’: a guy infects his girlfriend with the HIV virus, despite knowing it would put her life in danger, and makes UK legal history when he is convicted of reckless behaviour.

Stephen Kelly was found guilty of recklessly endangering Anne Craig, a mother of three, by repeatedly having sex with her between January and March 1994, when he knew he carried the HIV virus. He will be sentenced next month.

This is thought to be the first time a UK court has prosecuted somebody for deliberately transmitting the HIV virus to another person. Elsewhere, prosecutions have led to convictions and jail terms. For example, four years ago a fisherman, Paul Georgiou, was jailed for 15 months, after a court in Cyprus judged that he was aware he was carrying the HIV virus when he had sex with a British woman, Janette Pink.

It is not hard to understand why a woman would want to prosecute a guy for recklessly infecting her with an incurable, fatal sexually transmitted infection. How could you not feel bitter in such circumstances? All he had to do was use a condom!

But HIV support groups have voiced concern at the verdict, saying that criminalisation of HIV in this way will only increase the stigma borne by sufferers. This is true – but I have broader concerns about this verdict.

Cases such as these transform the act of sex, which is the shared and equal responsibility of two competent adults, into something that is done to a woman by a man. Kelly, according to the courts, is guilty of endangering Craig because he repeatedly ‘had sex with her’. It seems to have been conveniently forgotten that, unless she is crying rape, she also ‘repeatedly had sex’ with him. Looked at simply, Anne Craig is as much a victim of her own actions as she is a victim of Stephen Kelly’s.

In saying this, I am not lending any support to the snide moralising implicit in some newspaper coverage, which has been careful to include the detail that the couple had sex for the first time ‘just hours after meeting at a party’. That is irrelevant. The point is simply that mentally competent women who have sex with men have no excuse for forgetting that it can, on some unfortunate occasions, result in more than fun.

Unwanted pregnancy and sexual infections are a chance we take. If we are going to claim sexual equality, we can’t throw our hands in the air and play the tragic victim when things go awry. Blaming ‘him’ is not an acceptable get-out.

Then there is the precedent that this verdict sets for blaming the carriers of illness. If a guy can be convicted by the courts for passing on HIV, why could he not be convicted for passing on other infections – chlamydia, for example. What about unintended pregnancy? ‘He said we were safe because he was wearing a condom/had a vasectomy/would withdraw in time….’

And it only takes a small leap in the imagination to envisage men seeking the prosecution of women who become accidentally pregnant: ‘My client would not have consented to sex, your honour, if Ms Fling had not said she was on the pill. Her pregnancy has caused my client’s marriage to break down, and his subsequent nervous breakdown, which led to the loss of his job.’

Following this logic, why restrict the blame culture to sexual infections? Should we be able to prosecute anybody who is aware that they have an infectious complaint but, by failing to declare it, causes us to act in a way that puts us at risk? Think twice before you invite a colleague out for lunch – if you think you are going down with flu. ‘Your honour, my client would never have accepted the invitation if he had known he might expose himself to the virus….’

On hearing of the court’s decision in this case, Anne Craig commented: ‘If the verdict saves one life from the misery I have been through then it will all have been worthwhile.’

But will this verdict achieve even that? It is unlikely that Kelly failed to disclose his HIV status because he felt he would be immune from prosecution. All sexed up, with a willing and ready partner, his mind was probably on rather more immediate concerns.

Think about how difficult it is for some couples to step back from passion to consider contraception. It is unlikely that fear of court action will shape the judgement of any man (or woman) in similar circumstances. Sex is hot – cool, rational calculation tends to be thrown aside with the clothes.

This judgement is unlikely to protect anybody’s health – but it succeeds in conferring victim status on sexually active women, and pushing back the barriers of privacy by extending areas on which the court can judge. The more the law courts have to say about the rights and wrongs of sexual negotiations, the more uncomfortable we should feel.