A man was culpable for infecting his lover with AIDS but will it always be possible to apportion blame?

The human rights implications of the conviction of a man for
knowingly infecting his lover with HIV.

On 23 February 2001 Stephen Kelly was found guilty by
a jury of culpable and reckless conduct. The case took place in
Scotland (under common law as there are no statutory offences in
Scotland, as is the case in England and Wales), and it was about
him having unprotected sex knowing that he was risking the life of
his lover, Anne Craig, the mother of three children.

Ms Craig was diagnosed as HIV positive within three months of
first sleeping with Kelly. He had contracted HIV after sharing
dirty needles with other prisoners while serving a sentence for
assault and attempted robbery. He was tested as part of the Prison
Service’s voluntary screening programme, prompted by an
outbreak of hepatitis. He was advised about the importance of
practising safe sex. Kelly, a heroin addict, is a widower with two
children, and received his HIV test results as long ago as July
1993.

He was aware of the potentially devastating consequences of
unprotected sex and told Ms Craig that he had been tested negative
for HIV. Ms Craig will now pursue a claim for criminal injuries
compensation to help support her children aged 16, 14 and nine.
Kelly is now serving a five-year prison sentence.

In human rights terms, does society’s need to protect
individuals mean that private information can be used in criminal
proceedings? The answer is yes. In this case evidence was given by
Andrew Leigh-Brown, Professor of Evolutionary Genetics at Edinburgh
University, an expert on HIV. He told the court that the strain of
the virus uncovered at Glenochil prison, where Kelly had been an
inmate, was the same one which showed up in Ms Craig’s blood
sample from March 1994.

Society has the power to make laws to protect itself. What is
important is that those laws are fairly applied and reasonable.
This case shows that the criminal law can be used to punish the
behaviour of someone who disregarded the risk to another person,
knowing what the consequence would be. Ms Craig said: “I am
delighted that justice has been done, and hope this will be a
deterrent to others. If the verdict saves one life from the misery
I have been through then it will all have been worthwhile.”

The facts of the case seem straightforward. He knew he was HIV+
and lied to his lover. Ms Craig “has suffered several years of
serious illness and her life expectancy has been seriously reduced”
Lord Mackay said on 17 March, sentencing Kelly.

But what if Kelly had not understood his health position? Think
of all the learning impaired adults who engage in sexual activity.
Do they understand the risks? Do they know the consequences? How
can a family member or social worker go about checking the
background of those who befriend or become involved with an adult
who does not understand what HIV is and what its effects are?

The medical profession continues to protect medical information
belonging to patients, not a potential victim. The Terence Higgins
Trust has expressed concern that the Kelly case will deter people
from being tested. There is also the fear that if one person lies
about protection within a sexual relationship, they may end up in
prison.

In other situations, where knowledge and culpability are not so
clear cut, the answer might not be as straightforward as it was in
the Kelly case.