Bermuda

Last updated on: 6 February 2014

Criminalisation of HIV transmission/exposure

Bermuda
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
7
Number of people convicted: 
4
Applicable law: 

CRIMINAL CODE (SEXUAL OFFENCES) AMMENDED 1993

The maximum prison sentence is 20 years.

Key wording in the law: 

§ 324: Sexual assault by person with AIDS, etc

(1) It is a sexual assault if a person—

(a) knowing that he has a sexual disease, does a sexual act which -

(i) involves contact between any part of his body and any part of the body of another person (whether or not that other person is his spouse or consents to the act); and

(ii) is capable of resulting in the transfer of body fluids to that other person;and(b) before he does the act does not inform that other person that he has the disease, either identifying the disease or making clear to that other person that he has a disease to which section 324 of the Criminal Code applies.

(2) "Sexual disease" in subsection (1) of this section and in subsection (2) of section 325 means Acquired Immune Deficiency Syndrome or hepatitis B or Human Immunodeficiency Virus (HIV) infection.

(3) This section is without prejudice to the existence of other kinds of sexual assault.

Key Cases: 

The first case of alleged criminal HIV exposure was reported in February 1993, prior to the implementation of the HIV-specific law.  The man's HIV-positive status was considered an aggravated factor in a trial alleging under-age sex.  In April 1994, he was sentenced to five years for "unlawful carnal knowledge" of a girl under 16 years old. In May 1995, the first person to be prosecuted under the HIV-specific criminal law was sentenced to 14 years after pleading guilty. The female complainant was diagnosed HIV-positive soon after beginning a relationship with the 31 year-old defendant.  He admitted not disclosing his HIV-positive status, and that although they generally used condoms, they broke twice.  The court also heard evidence that the defendant was a "slow learner" and may not have fully appreciated his diagnosis.

A second conviction in 1999 where the complainant did not test positive led to a 10 year prison sentence, reduced to six years on appeal. A third man was acquitted of all charges in a 2004 trial. In June 2008, a 32 year-old HIV-positive man who had unprotected sex with his former girlfriend and then disclosed his HIV status in a break-up note was sentenced to ten years in prison following a guilty plea. A fifth case was reported in November 2009. A 44 year-old man was arrested and charged for having unprotected sex without disclosing his HIV status. The outcome is unknown. Finally, in June 2010, charges were dismissed against a 50 year-old man who was alleged to have had unproteced sex without disclosing his HIV status.

17 January 2014: Man, 23, receives three years’ probation after admitting infecting his current partner, 20, without disclosing his HIV status: A 23-year-old man who admitted having sex with his girlfriend without disclosing that he had tested positive for HIV was today put on probation for three years. The man was charged in November with sexually assaulting the 20-year-old woman; it was alleged he knew he had the virus but failed to inform her of that fact. The two are still in a relationship, one of the factors of the case considered by Senior Magistrate Archibald Warner. As part of his probation, the man must be assessed and monitored and participate in “any treatment and rehabilitation of the HIV virus and any associated medical conditions”. In sentencing the man, Mr Warner said: “For whatever reason, it seems you are reluctant or disinterested in getting help but you must cooperate.” In December, the man pleaded guilty to the charge.

Source: http://www.hivjustice.net/storify/bermuda-man-23-receives-three-years-probation-after-admitting-infecting-his-current-partner-20-without-disclosing-his-hiv-status/#sthash.8V36H9Wk.dpuf

 

Discussion: 

There are fewer than 200 people living with HIV in the island nation, and yet six people have been prosecuted since Bermuda passed its HIV-specific criminal law in 1993.

This gives Bermuda the unfortunate distinction of having the highest number of prosecutions per capita of PLHIV (30 per 1000) in the world.

Survey respondents/Organisations working on HIV and the Law: 

Previous survey respondents:

S.T.A.R.

Further reading: 

Other laws and policies with an impact on responses to HIV

Laws and regulations relating to entry, stay or residence in the country: 

The U.S. Department of State is unaware of any HIV/AIDS entry restrictions for visitors to or foreign residents of Bermuda. However, visitors with visible indicators of any communicable disease can be refused entry into Bermuda.

For updated information, please go to: www.hivrestrictions.org

Laws relating to same sex, sexual relations: 

Not information available.

For updated information, please go to: http://ilga.org