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The Gareth Thomas case proves it: no one wins when an HIV transmission fight goes to court

<span>Photograph: Athena Pictures/Getty Images</span>
Photograph: Athena Pictures/Getty Images

Few public figures alive today have done more to reduce the stigma around HIV than Gareth Thomas. Since he declared his status in 2019 (saying he had been forced to, following threats of blackmail by a tabloid newspaper), the former rugby player has campaigned to promote better understanding of the virus.

It’s regrettable that such a popular figurehead recently found himself at the centre of a legal controversy. Last week, it was announced that Thomas had settled a case brought by his ex-partner, Ian Baum, who in a civil claim accused Thomas of hiding his HIV status while they were a couple between 2013 and 2016. Baum alleged that Thomas “deceptively” transmitted the virus to Baum, hiding his HIV medication and “coercing” him into unprotected sex. While agreeing to pay a settlement of £75,000, Thomas made no admission of liability or guilt, and has always denied that he gave Baum HIV. However, he has confirmed that he did not tell Baum about his HIV status because he “genuinely and reasonably” believed that it was undetectable at the time because his viral load was so low that the virus could not be passed on. He acknowledges now that this belief was mistaken.

There is no law that says you have to tell your partner if you have HIV, but it is possible to be prosecuted for “reckless” or “intentional” transmission. The Thomas case has brought up old questions over what the norms around sharing HIV statuses should be, and whether the law should take a stance on HIV at all. But any discussion should bear in mind that the epidemic has shifted dramatically in the decade since Baum and Thomas began their relationship. Today, while the law is unchanged, the majority of people living with HIV are undetectable (and so have a viral load so low that the virus cannot be passed on). Meanwhile, the HIV-prevention drug PrEP has become widely adopted in the gay community. Thanks to these advances, which are driven by people taking personal responsibility and creating a supportive environment for people living with HIV, there has been a massive decrease in transmissions among gay and bisexual men.

If it is not possible that you will transmit to another person during sex, there is no moral obligation to share your status, any more than you would tell a casual partner that you have diabetes, for example. That said, the topic of HIV is often raised by gay men prior to sex and many would agree that the responsibility for initiating these conversations is a joint one – it doesn’t lie solely with any one individual, regardless of their status.

As Baum’s lawyers pointed out, although this was a civil case, these allegations could have been pursued as a criminal offence. Should they be? At what point does the transmission of a stigmatised condition between two unlucky people become a matter for the courts? The charity aidsmap has warned that “problematic legislation” on HIV exists everywhere in the world, criminalising transmission, exposure or non-disclosure. While England is not at the worst end of the scale, aidsmap nonetheless described the number of cases brought against HIV-positive people as “unusually high”.

Despite the number of cases brought, there has been only one successful prosecution in England for “intentional” transmission. This was an unusually clearcut case case: the defendant was found to have tampered with condoms (illegal in its own right), thus proving malicious intent. In rare instances such as this, HIV organisations typically agree that criminalisation is justified. Likewise, in cases of sexual violence where HIV transmission occurs, it’s reasonable to consider this an aggravating factor. But there is a consensus among HIV advocates that prosecutions for “reckless” transmission – where there is no evidence of any intention to cause harm – are unjust and counterproductive.

For one, it contributes to stigma. In the recent past, tabloids have taken the tiny handful of people who have intentionally or recklessly passed on HIV and reported them using language like “HIV monsters”. As Deborah Gold, chief executive of the National Aids Trust, told me, disproportionate focus on these rare cases “can result in victimisation, discrimination and increased stigma for people living with HIV”. In reality, people living with HIV are leading prevention efforts in their communities and campaigning for change. Many of them already struggle with telling new partners about their status – particularly in heterosexual relationships, where the question is less likely to arise. Criminalisation only exacerbates this stigma and makes communication more fraught.

Moral considerations aside, criminalisation simply does not reduce transmission or improve public understanding of HIV. According to the Joint United Nations programme on HIV/Aids, there is no data that shows legal penalties reduce transmission. On the contrary, there is reason to believe that it has a counterproductive impact on public health, not least because it offers a powerful disincentive to get tested.

Related: Gareth Thomas on coming out as HIV positive: ‘It was my right to tell my family – not somebody else’s’

Across the world, the criminalisation of HIV has been shown to have a disproportionate impact on the most vulnerable members of society, including racialised minorities, sex workers and women. These groups are often less empowered to negotiate safer sex, and face additional barriers to accessing HIV prevention and care. In Canada, where non-disclosure is criminalised if no condoms are used and the viral load is above a certain level, one woman was prosecuted for reckless transmission after being sexually assaulted by a group of men, while another suffered the same fate after being coerced by her male partner into having sex without a condom.

When we think about HIV transmission solely in terms of individual blame, however “reckless” an individual’s actions may seem to be, we let those who are truly responsible off the hook. In December, the UK government published data that showed it is no longer on track to meet its target of ending new transmissions by 2030. What should be an achievable goal has been jeopardised by cuts to sexual health services, structural racism and a decade-long failure to ensure equitable access to treatment and prevention.

As the sexual health charity the Terrence Higgins Trust said of Thomas’s case, “There are no winners when it comes to legal proceedings around HIV transmission.” The law is – at best – an unreliable tool when it comes to achieving HIV justice. To reduce HIV transmission, people must be empowered to have open and educated conversations about sexual health. Along with tools such as PrEP and testing, this is our best way of ensuring that situations such as the Thomas case become a thing of the past.

  • James Greig is a freelance journalist

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