Ireland does not have an HIV-specific law, but general criminal laws have been used to respond to cases involving a perceived HIV transmission risk. These general harm provisions are found in the Non Fatal Offences Against the Person Act of 1997, and can be applied to causes of actual harm (transmission) and endangerment (‘exposure’).
The first reported cases related to perceived ‘exposure’ through non-sexual means. In the first case, a man living with HIV pled guilty in 2008 to assault causing harm after biting a police officer during a domestic disturbance. The bite allegedly drew blood and the officer began a course of anti-retroviral treatment while awaiting test results, which came out negative. A second similar case was reported in 2014, but the outcome is not known.
In a 2017 case, a defendant admitted to assault at his home after he spat bloody saliva into a policeman’s mouth, shouting “I have AIDS”. The incident occurred after he had been stabbed in the leg following a domestic incident. The accused also admitted to violent disorder after doing the same at a police station. It is understood he was convicted under section 2 of the Non Fatal Offences Against the Person Act of 1997 and section 15 of the Criminal Justice (Public Order) Act, 1994, despite blood tests showing he did not have HIV.
In another case reported in 2017, the High Court refused to accept a request by the Child and Family Agency to disclose the HIV status of a teenager in their care to another girl who they alleged he was having unprotected sex with. The teenager denied the claims, and the Court determined that there was insufficient evidence to warrant a breach of his confidentiality to inform the girl, who was unaware of the proceedings. No criminal case was initiated.
In 2018, the first known Irish case involving alleged sexual transmission of HIV resulted in the conviction of an African national for causing serious harm after allegedly transmitting HIV to two former partners some time during 2009 or 2010. It was alleged that despite being aware of his HIV-positive status, the man neither used condoms nor took anti-viral medication. Both women had children as a result of the relationship but while they were HIV-positive, the children were not. It is understood the accused was charged under section 4 of the Non Fatal Offences Against the Person Act of 1997. The accused was sentenced to 10 years in prison. In June 2021 an appeal was made to the Court of Appeal with lawyers arguing that the defendant did not receive a fair trial due to the judge allowing medical evidence as to the likelihood of transmission to be given by a doctor who had no expertise on HIV (his evidence was later contradicted by two HIV experts), the lack of phylogenetic analysis, and failures by the judge to give proper warnings to the jury about the veracity of the evidence presented. In June 2022, the appeal was rejected and the defendant’s conviction was upheld. In October 2022 a further appeal arguing that the sentence was disproportionate was also rejected. In May 2023, his appeal to the Supreme Court was granted by a three-judge panel which determined that the case raised legal points of public importance concerning the necessary evidentiary standard to prove such criminal charges. A date for the appeal has not yet been set.
In a tragic case, in 2009, the Office of the Director of Public Prosecutions accepted a defence that exposure to spit from an HIV-positive person constituted provocation, with a subsequent downgrading of charges. The case related to the killing of a 50-year-old man who the assailant presumed was HIV-positive. The act occurred after an argument escalated and the deceased spat at the accused before crossing the road and moving away. The man died after he was pursued, and the assailant punched him to the ground and stomped on his head using his full body weight. HIV cannot be transmitted by spit.
Non Fatal Offences Against the Person Act
Section 2. Assault
(1) A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly—
(a) directly or indirectly applies force to or causes an impact on the body of another, or
(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact, without the consent of the other.
(4) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months or to both.
Section 3. Assault causing harm
(1) A person who assaults another causing him or her harm shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding £1,500 or to both, or
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or to both.
Section 4. Assault causing serious harm
(1) A person who intentionally or recklessly causes serious harm to another shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or to imprisonment for life or to both.
[Section 1. Interpretation – “serious harm” means injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ.]
Section 13. Endangerment
(1) A person shall be guilty of an offence who intentionally or recklessly engages in conduct which creates a substantial risk of death or serious harm to another.
(2) A person guilty of an offence under this section shall be liable—
(a) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or
(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 7 years or to both.
Criminal Justice (Public Order) Act
(a) three or more persons who are present together at any place (whether that place is a public place or a private place or both) use or threaten to use unlawful violence, and
(b) the conduct of those persons, taken together, is such as would cause a person of reasonable firmness present at that place to fear for his or another person’s safety,
then, each of the persons using or threatening to use unlawful violence shall be guilty of the offence of violent disorder.
(2) For the purposes of this section—
(a) it shall be immaterial whether or not the three or more persons use or threaten to use unlawful violence simultaneously;
(b) no person of reasonable firmness need actually be, or be likely to be, present at that place.
(3) A person shall not be convicted of the offence of violent disorder unless the person intends to use or threaten to use violence or is aware that his conduct may be violent or threaten violence.
(4) A person guilty of an offence of violent disorder shall be liable on conviction on indictment to a fine or to imprisonment for a term not exceeding 10 years or to both.
(5) A reference, however expressed, in any enactment passed before the commencement of this Act—
(a) to the common law offence of riot, or
(b) to the common law offence of riot and to tumult,
shall be construed as a reference to the offence of violent disorder.
(6) The common law offence of rout and the common law offence of unlawful assembly are hereby abolished.
Our thanks to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.