Bermuda

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.