Expert Consensus Statement

on the Science of HIV in the Context of Criminal Law

Concerned that prosecutions are not always guided by the best available scientific and medical evidence, 20 of the world’s leading HIV scientists developed an Expert Consensus Statement to address use of HIV science within the criminal justice system.
The Statement was written to assist scientific experts considering individual criminal cases, and to encourage governments and those working in the criminal justice system to make all efforts to ensure a correct and complete understanding of current scientific knowledge informs any application of the criminal law in cases related to HIV.

The Statement provides expert opinion regarding individual HIV transmission dynamics (i.e., the ‘possibility’ of transmission), long-term impact of chronic HIV infection (i.e., the ‘harm’ of HIV), and the application of phylogenetic analysis (i.e., whether or not this can be used as definitive ‘proof’ of who infected whom). A detailed analysis of scientific and medical research data on HIV transmission, treatment effectiveness and forensic evidence was performed and described specifically so that it may be better understood in criminal law contexts.

The Statement focuses on the possibility of HIV transmission during specific acts that are commonly considered in prosecutions (namely sexual activities, biting or spitting) based on assessments on an individual-level, as is applicable in criminal justice settings. The possibility of HIV transmission during a single, specific act was positioned along a continuum of risk, noting that this possibility varies according to a range of intersecting factors, including viral load, condom use, and other safer sex practices. Current evidence suggests the possibility of HIV transmission during a single episode of sex, biting or spitting ranges from no possibility to low possibility.

Some of expert opinions contained in the Statement include the following:

  • The possibility of HIV transmission during a single act of vaginal or anal sex ranges from low to none (see below for important factors affecting the possibility of transmission).
  • The possibility of HIV transmission during a single act of oral sex ranges from negligible (in very unusual and extreme circumstances) to none (see below for important factors affecting the possibility of transmission).
  • There is no possibility of HIV transmission during a single act of vaginal, anal or oral sex where an intact condom has been used correctly.
  • There is no possibility of HIV transmission during a single act of vaginal, anal or oral sex when the HIV-positive partner has an undetectable viral load.
  • The possibility of HIV transmission during a single act of vaginal or anal sex when the HIV-positive partner has a low viral load ranges from negligible to none.
  • There is no possibility of HIV transmission through saliva, even when it contains small quantities of blood.
  • The possibility of HIV transmission from biting ranges from negligible (in very unusual and extreme circumstances) to none.
  • Modern antiretroviral therapies have improved the life expectancy of most people living with HIV who have regular access to them, to the point that their life expectancy is similar to that of HIV-negative people, thereby transforming HIV infection into a chronic manageable health condition.
  • Phylogenetic analysis can be compatible with, but cannot conclusively prove, the claim that a defendant has infected a complainant with HIV. Importantly, phylogenetic results can exonerate a defendant when the results rule out the defendant as the source of a complainant’s HIV infection.

The Expert Consensus Statement has been endorsed by more than 70 leading scientists from 46 countries as well as by the International AIDS Society (IAS), the International Association of Providers of AIDS Care (IAPAC) and the Joint United Nations Programme on HIV/AIDS (UNAIDS) was originally published on 25 July 2018 in the Journal of the International AIDS Society (JIAS), a peer-reviewed scientific journal.

Read and download the full text of the Expert Consensus Statement from the JIAS website at: https://onlinelibrary.wiley.com/doi/abs/10.1002/jia2.25161

Download the list of endorsers here

To find out more about how and why the Statement was developed, see these Frequently Asked Questions.