The criminal law on HIV transmission

Abstract

This thesis deals with the criminalisation of HIV transmission in terms of Article 244A of the Criminal Code. HIV is primarily transmitted through unprotected sexual contact. Article 244A requires the effective transmission of HIV accompanied with either direct or indirect intention. Recklessness also gives rise to criminal liability. These same requirements run parallel to Italian and English law. Under Maltese law intentional transmission requires the infector to be aware that he is afflicted by the virus. On the other hand, reckless transmission requires not such knowledge. The position under Italian and English law on the latter remains ambiguous. Canadian law, criminalises the non-disclosure of HIV status to one’s sexual partner, even though case law has made exceptions, cases when the viral load is low and condoms are used. To date the Maltese Criminal court has only adjudicated one case which deals with HIV transmission; ‘Il-Pulizija v. Kingsley Wilcox’. It dealt with the transmission of the virus to two teenage girls; Jennifer Muscat, Rodianne Petticrew. Whilst the Court of Magistrates was satisfied that Wilcox was equipped with indirect intent to transmit the virus, the Court of Criminal Appeal overturned the judgement. The Appeal court argued that the proof presented was not sufficient to prove when Wilcox had infected Petticrew, whether it was before or after the introduction of Legal notice 137 of 2005 which enlisted HIV as a communicable disease. Whether HIV transmission should be a criminal offence has been the subject of many books, journal articles and conferences. The underlying notions which run throughout all these works are; consent, disclosure, public health and flaws in court proceedings. These are presented in both a legislative and a legal light. Some of the arguments presented raise moral issues which can sometimes conflict with the morality or school of philosophy which the reader adheres to.