Stephen Kelly was one of at least 14 drug injectors who became infected with HIV by needle sharing in Glenochil Prison, Scotland, in the first half of 1993. In June 1993, because of self assessed HIV risk, he participated in the infection control exercise at the prison. He accepted HIV counselling and testing from an outside counsellor, who informed him of his HIV diagnosis and gave post-test counselling on the day of his wife’s funeral.
Subsequently, molecular research studies showed that 13 of the 14 drug injecting prisoners and a female heterosexual contact had the same strain of virus. Mr Kelly, one of the 13, is now serving five years’ imprisonment for culpably and recklessly transmitting HIV infection to Miss Anne Craig, the above heterosexual contact. This is a harsh sentence by international standards. In early 1994, he and Miss Craig had unprotected vaginal and anal intercourse over at most two months before she seroconverted. He had not disclosed his HIV diagnosis.
Anal intercourse within two months of the start of a heterosexual relationship is relatively uncommon.And it was not discovered until after 1994 that the risk of transmitting HIV from male to female was quantified as being 20 times greater by penile-anal sex than by vaginal sex and 200 times greater if intercourse occurs during the first three months of HIV infection. This information was therefore not included in Mr Kelly’s counselling.
Miss Craig, mother of three children (the youngest then 2 years old), had not had sexual relations since separating from her husband in 1990. Like a quarter of women in her age group, she relied for her sexual health on her partner’s denial of any reason, other than avoidance of pregnancy, that they needed to use protection. She knew Mr Kelly had a history of drug injecting and imprisonment.
The Kelly verdict has criminalised undeclared, but not untested, HIV transmission. In Scotland, it is now a crime for someone who knows that they are HIV positive and conceals the knowledge to have unprotected sexual contact with another person and transmit HIV infection. Knowledge of HIV status, which was formerly a measure to reduce risk, can now endanger a person’s liberty in a way that ignorance of it cannot. Yet ignorance is substantially more dangerous.
For an analysis of this case and its implication on Public Health please read:
Criminalisation of HIV transmission: implications for public health in Scotland