Bermuda

Number of reported cases At least 2 How do we calculate the number of cases

Overview

Bermuda passed an HIV-specific law in 1993 which defines sexual activity by someone living with HIV without disclosing their status as a form of sexual assault.

Section 324 of the Criminal Code makes it an offence for any person living with HIV (or hepatitis B) to have sex that ‘involves contact between any part of his (sic) body and any part of the body another person’ that is ‘capable of resulting in the transfer of body fluids to that other person’, without first disclosing their HIV status. The maximum sentence for this offence is 20 years’ imprisonment. Transmission is not required for this offence; merely engaging in sexual activity capable of transferring fluids without disclosing HIV status is sufficient, meaning that the law criminalises ‘exposure’ and non-disclosure. The law does not appear to account for people with undetectable viral loads, and the position on the use of condoms is also unclear. Disclosure should be a full defence to prosecution, however it can be difficult to prove.

Furthermore, section 325 states that a person commits a ‘serious sexual assault’ if knowing that are living with HIV (or hepatitis B), they commit a sexual assault other than that defined in section 324. This provision is liable to imprisonment for up to 30 years. This essentially creates a sentence enhancement for people living with HIV for committing any sexual assault (whereas those without HIV are only liable in limited circumstances such as where bodily harm is caused).

There have been at least six prosecutions since these laws were adopted in 1993, at least four of which resulted in conviction.

The first case was reported in 1995, and involved a man living with HIV who pled guilty to an offence under section 324 after having a relationship with a woman for almost a year. The couple engaged in sexual activity many times over this period, however the man did not disclose his status, although he did maintain that condoms were generally used, however HIV was transmitted. The man received a sentence of 14 years’ imprisonment.

A second case in 1999 (reported in 2008) which did not involve transmission, resulted in a six year sentence (reduced from 10 years on appeal).

In 2004, a third case (also reported in 2008) resulted in full acquittal, however we are not aware of the circumstances.

In 2008, a man living with HIV had unprotected sex with a partner on multiple occasions without first disclosing his status. After the relationship ended, the man disclosed his status through a letter and advised her to get tested. It appears that HIV was not transmitted, however the man pled guilty to an offence under section 324 and was sentenced to 10 years’ imprisonment.

In 2009, another man was arrested and charged for allegedly having unprotected sex without disclosing his status. The outcome of the case is not known.

Finally, in 2013 a 23-year-old man living with HIV received three years of probation after having sex with his girlfriend without disclosing his status. The man pled guilty to an offence, however received a light sentence apparently in large part due to the fact that the couple had continued their relationship after his arrest.

Laws

Criminal Code

HIV-specific criminal law (enforced) (active)
Year enacted
1993
Relevant text of the law

Section 324. Sexual assault by person with AIDS, etc

(1) It is a sexual assault if a person—

(a) knowing that he has a sexual disease, does a sexual act which—

(i) involves contact between any part of his body and any part of the body of another person (whether or not that other person is his spouse or consents to the act); and

(ii) is capable of resulting in the transfer of body fluids to that other person; and

(b) before he does the act does not inform that other person that he has the disease, either identifying the disease or making clear to that other person that he has a disease to which section 324 of the Criminal Code applies.

(2) “Sexual disease” in subsection (1) of this section and in subsection (2) of section 325 means Acquired Immune Deficiency Syndrome or hepatitis B or Human Immunodeficiency Virus (HIV) infection.

(3) This section is without prejudice to the existence of other kinds of sexual assault.

Criminal Code

Other law (active)
Year enacted
1993
Relevant text of the law

Section 325. Serious sexual assault

A person commits a serious sexual assault, if, in committing a sexual assault,

(a)  carries, uses, or threatens to use, a weapon or an imitation of a weapon; or

(b)  causes bodily harm to the complainant; or

(c)  threatens to cause bodily harm to a person other than the complainant; or

(d)  is a party to the offence with another person.

(2) A person also commits a serious sexual assault if, knowing that he has a sexual disease, he commits a sexual assault other than a sexual assault under section 324.

(3) A person who commits a serious sexual assault is guilty of a felony and is liable on conviction on indictment to imprisonment for thirty years.

This information was last reviewed in June 2023