Singapore

There have been more than 20 HIV criminalisation cases in Singapore, with the first known case occurring in 2000. The majority of cases to date have applied section 23 of the Infectious Diseases Act, which is an HIV-specific provision. In most cases, the accused (all of them men) have pled guilty. As of 2023, section 23 is under review.

The Infectious Diseases Act states that a person who knows they have HIV or has reason to believe they have been exposed to a significant risk of acquiring HIV, must not engage in any sexual activity with another person without informing the person that they have (or may have) HIV. The person living with HIV must also tell their prospective partner of the risk of contracting HIV before the sexual activity takes place. The law then acknowledges that if both actions occur, a sexual partner may voluntarily agree to the risk. It also provides a defence for people who are not yet diagnosed but suspect they may have been exposed to a significant risk if they take reasonable precautions to ensure they do not expose their partner to risk of HIV. There are is no such defence for people confirmed to be living with HIV.

The structure of the law, which focuses on disclosure of diagnosed HIV-positive status regardless of transmission risk, has resulted in convictions where condoms have been used and where a person has an undetectable viral load. For example, in 2012, two men living with HIV were jailed after having casual sex (at different times) with a man who subsequently tested positive for HIV. One of the accused had oral sex (without condoms) and anal sex (with condoms) and had an undetectable viral load. The second accused had been the receptive partner and had testified that the complainant had worn a condom. The complainant did not confirm whether or not he had used a condom. Despite it being unclear how the man acquired HIV, and the actions of the men including no transmission risk, both were convicted.

Similarly, in 2019 a man was sentenced to 19 months’ jail and a $2,500 fine for not disclosing his HIV status to two women before having sex with them during a period he had been taking HIV medication and had had a low/undetectable viral load. In that case the man had contacted the health ministry to make them aware of the circumstances of his case, explaining his concern that a condom had broken during sex with one of the women. Investigators then found that the man had met the women during a process of renting out an apartment they used for sex work. The man was also convicted of one count of living off the earnings of prostitutes and one charge of letting his rental unit be used as a brothel. In a November 2022 case a man was charged with a pleaded guilty to the non-disclosure offence after having sex with two partners who were unaware of his status. The report suggests that he had an undetectable viral load at the time of at least one, and possibly both, of the sexual encounters, and had even given his partners PrEP. He was nonetheless sentenced to 15 months’ imprisonment.

In July 2019, Singapore’s High Court confirmed that people living with HIV must both disclose their HIV-positive status prior to sex, and they must inform them of the possible risk of HIV transmission. The case related to an appeal by an HIV-positive man convicted for non-disclosure before a number of sexual encounters with a male partner. The sexual partner tested HIV-positive, but it was not known how he had acquired it. The case is concerning for a number of reasons. Firstly, it is not clear that the accused did not disclose his HIV status. The complainant had initially testified that the man withheld information about his HIV status, but he later conceded that the man may have mentioned his HIV status while they were chatting through an app. Instead of casting doubt on the complainant’s testimony, the judge decided that having forgotten some exchanges showed that he was a “candid witness”. Secondly, the judgement suggests that there was no effective HIV risk during the sexual activity. Condoms were used early in the relationship, and subsequently when condoms were not used, the accused had a very low viral load. The judge sentenced the accused to a two-year jail term, also establishing a three-band sentence range for first-time offenders who plead not guilty and go to trial ranging from a fine to a 10-year jail term, with a starting point of a six year jail term when actual harm results.

Another case in June 2022 highlights the severity of Singapore’s HIV law and the lack of consideration given to transmission risk by the courts. In this case, a man was sentenced to one year imprisonment for failure to disclose his HIV status prior to sexual activity on two occasions despite being on medical treatment which had resulted in an undetectable viral load, and as verified by doctors at trial, no risk of transmission. This case was met with some criticism and calls for reform of the law in the media (see here and here). A case in 2023 involving a transgender sex worker resulted in four charges for sexual intercourse with clients without disclosing their HIV status. While at least one of these incidents was unprotected and resulted in HIV transmission, others involved condoms or an undetectable viral load. They were ultimately sentenced to three years and three months’ imprisonment after pleading guilty to one charge.

Singapore has also had a case involving a man who had not been diagnosed but was found liable after allegedly being exposed to a significant risk of acquiring HIV and not taking precautions to protect others. The Malaysian man had been contacted numerous times by the health department informing him that sexual partners had tested positive for HIV at which time he had falsely claimed to have been tested or had avoided contact from the health department. The man was sentenced to 42 months jail.

In December 2023, the Ministry of Health announced that it was reviewing section 23 of the Infectious Diseases Act, acknowledging that people who have an undetectable viral load have virtually no risk of transmitting HIV. The Ministry noted that the review would take into account latest scientific data, giving hope that repeal or reform may be forthcoming. At the second reading of the proposed amendment bill, the Ministry of Health noted that the update to the law would manifest as a defence to prosecution under section 23(1), which requires disclosure of HIV status, where the person has maintained an undetectable viral load for a certain period.

In addition to section 23, the Infectious Diseases Act contains other provisions which have been used to prosecute people living with HIV. Section 24 specifically prohibits people who know they are living with HIV from making a blood donation, with a maximum sentence of 10 years’ imprisonment and/or a fine. Furthermore, section 11 of the Act makes it an offence, liable to up to two years’ imprisonment and/or a fine, to knowingly supply false information in connection with a blood donation (see our report, Bad Blood, for a global analysis of the criminalisation of blood donations). We are aware of several HIV cases related to blood donations in Singapore, making it the global hotspot for use of such laws.

In a case in 2021, a man who was unknowingly living with HIV was charged under section 11 for allegedly lying about his sexual history when he donated blood in an effort to help increase blood supplies during the COVID-19 pandemic. The man declared in his Donor Health Assessment Questionnaire, a legal document that must be signed prior to donating blood, that he had never had sex with another man. He later confirmed his answers were truthful when asked by a doctor. After his blood later tested positive for HIV, the man told a doctor that he had previously had oral sex with a man but that he did not think this was considered ‘sex’, having overlooked the first page of the questionnaire which defined ‘sex’ as including oral sex. Following arrest the man pleaded guilty to the offence, but his plea was rejected by the judge on the basis that he did not know at the time that the information he was providing was false. The charges were eventually dropped.

In another case reported in 2021, a man was sentenced to three months’ imprisonment and a fine of S$10,000 after being found guilty under section 11. When donating blood in 2019 the man declared in his Donor Health Assessment Questionnaire that he had never had sex with another man and that he had not had a body piercing in the previous year. After tests on the donated blood and later himself showed that he was HIV-positive, the man admitted that his declarations were untrue and he was prosecuted under the Infectious Diseases Act. Similar cases reported in May 2023 and March 2024 also resulted in three month prison sentences for failure by men living with HIV to disclose past sexual experiences with men during blood donations.

‘Exposure’ to HIV may also result in enhanced sentences for general harm offences. In a case reported in March 2023, a man living with HIV was convicted for allegedly biting a police officer during a raid, with his HIV status used to justify a 20-month prison sentence. On appeal the sentence was reduced to 14 months, as evidence demonstrated there was not a risk of significant harm from the bite. While the conviction was upheld, it is not clear which provision was used to prosecute. Similarly, in a case reported in July 2023, a man living with HIV received a five month prison sentence after allegedly biting a police officer during a struggle. The officer was deemed at low risk of infection, however the court nonetheless added jail time for the bite to a wider list of drug-related charges.

Although there have been no reported cases using these laws to date, in theory Singapore’s Penal Code has two provisions which could be used to address HIV exposure or transmission. Section 269 states that unlawfully or negligently undertaking an act likely to spread an infection dangerous to life is punishable by 1 year’s imprisonment and/or a fine. Section 270 increases the penalty to up to four years and/or a fine when the act is a ‘malignant act’. In both cases, the offence includes not only a person knowing the act is likely to transmit HIV, but also having ‘reason to believe’ the act is likely to transmit HIV; effectively lowering the threshold for a charge to be laid in line with the provisions in Singapore’s Infectious Diseases Act.

Intention to transmit HIV or to cause harm are not required in the case of negligence (s269). Disclosure of HIV-positive status prior to sexual intercourse, and informed consent by the HIV-negative party are also not addressed. A number of other issues are not included in the legislation but could be considered during a trial. These include whether a specific act was ‘likely’ to result in transmission (including consideration of risk reduction practices); whether a person knew or had reason to believe the act was likely to result in transmission (whether or not their knowledge or belief reflected current scientific understanding); and whether, given modern treatments, HIV can still be considered a virus dangerous to life in the case in question.