There have been at least 10 HIV criminalisation cases in Singapore, with the first known case occurring in 2008. All cases to date have applied section 23 of the Infectious Diseases Act which has an HIV-specific section. In nine of the ten cases, the accused (all of them men) have pled guilty.
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 diagnosed if they take reasonable precautions to ensure they do not expose their partner to risk of 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 2017, another man reported himself to police for having sex with men he met online without disclosing his HIV status. The man was charged under the Infectious Diseases Act and jailed for 17 months, a slightly reduced sentence because he had reported himself and had pled guilty.
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.
Singapore has also had a case involving a man who had not been diagnosed but was found to have believed he had been exposed to a significant risk of acquiring HIV and had not taken 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.
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.
Infectious Diseases Act 1977
Infectious Diseases Act 1977
Section 23 Sexual activity by person with AIDS or HIV Infection.
(1) A person who knows that he has AIDS or HIV Infection shall not engage in any sexual activity with another person unless, before the sexual activity takes place
(a) he has informed that other person of the risk of contracting AIDS or HIV Infection from him; and
(b) that other person has voluntarily agreed to accept that risk.
(2) A person who does not know that he has AIDS or HIV Infection, but who has reason to believe that he has, or has been exposed to a significant risk of contracting, AIDS or HIV Infection shall not engage in any sexual activity with another person unless —
(a) before the sexual activity takes place he informs that other person of the risk of contracting AIDS or HIV Infection from him and that other person voluntarily agrees to accept that risk;
(b) he has undergone the necessary serological or other test and has ascertained that he does not have AIDS
(c) during the sexual activity, he takes reasonable precautions to ensure that he does not expose that other person to the risk of contracting AIDS or HIV Infection.
(3) Any person who contravenes subsection (1) or (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 10 years or to both.
(4) For the purposes of this section, a person shall not, only by reason of age, be presumed incapable of engaging in sexual activity.
(5) For the purposes of this section, a person shall be deemed to know that he has AIDS or HIV Infection if a serological test or other test for the purpose of ascertaining the presence of HIV Infection carried out on him has given a positive result and the result has been communicated to him.
(6) No prosecution shall be instituted for an offence under subsection (2) except with the written consent of the Public Prosecutor, but a person charged with such an offence may be arrested and be remanded in custody or released on bail notwithstanding that the consent of the Public Prosecutor to the institution of a prosecution for the offence has not been obtained, except that the case shall not be further prosecuted until that consent of the Attorney-General has been obtained.
(7) In this section, “sexual activity” means —
(a) sexual activity occasioned by the introduction into the vagina, anus or mouth of any person of any part of the penis of another person; or
(Chapter 224) – An Act to consolidate the law relating to criminal offences.
Section 269 – Negligent act likely to spread infection of any disease dangerous to life
Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both.
Section 270 – Malignant act likely to spread infection of any disease dangerous to life
Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment for a term which may extend to 4 years, or with fine, or with both.
Our thanks to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.