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Sunday 29 November 2009

New Zealand: African migrant sentenced to three-and-a-half years for HIV transmission

A 34 year-old HIV-positive New Zealand citizen originally from the Democratic Republic of Congo has been sentenced to three-and-a-half years in prison for grievous bodily harm with a concurrent six months for criminal nuisance. The charges stemmed from not disclosing his HIV status before having unprotected sex with an Auckland woman, who is now HIV-positive.

I reported on the man's arrest in March, during which time the police went on a 'fishing expedition' for more complainants. It seems none were found. Interestingly, contrary to the media frenzy surrounding the bisexual Auckland man who currently faces 28 HIV exposure and transmission charges relating to 14 people, reporting on this case was extremely low-key. In fact, the man was sentenced on October 16th and this is the first news report I have seen about it.

Notably, the Sunday Star-Times article published today which reports the man's sentencing does not mention any identifying characteristics of either complainant (which is usual) or defendant (which is rare outside of the Netherlands). It is possible that since the earlier report states they had a child together, this is for the protection of the child.

The man and woman cannot be identified and other details about their relationship and where they live have also been suppressed.
What is also interesting about the article is that it includes details from the sentencing notes of Judge L Moore of Waitakere District Court which provides some insight into how little the criminal justice system cares why someone living with HIV has not disclosed their condition to their long-term sexual partner.
[T] he man insisted he did not have HIV even after his girlfriend noticed a letter from the infectious diseases centre, a nurse spoke to her about it, and one of his former partners sent her a warning text message. He continued to deny having HIV after the girlfriend discovered she had been infected...

"You blatantly lied to this trusting woman so that you could continue to have unprotected sex with her, knowing full well that by doing so, you were putting her at risk of a terrible outcome," [Judge Moore told the man]. You cared for her so little that you were prepared to gratify yourself at a risk to her life. In a way, the fact that this was a long-term relationship, the fact that this woman loved and trusted you, makes it far worse than if it were just a casual fling with somebody who was just out for a bit of sexual adventure. The breach of trust here is very great."


The man was going through a difficult time at that point [of his 2005 diagnosis], the notes say, as his marriage (which had produced two children) had come to an end. The man moved in with his victim as a boarder but their relationship became physical and they were together for at least two years.

This was the first long-term relationship the woman had been in, Judge Moore said. It seems the couple used condoms for a time before the woman went on the contraceptive pill. From that point they had unprotected sex, which the man preferred.

This man was in serious – and I mean serious – denial, and yet the court imagines that the man "blatantly lied to this trusting woman" for no other reason than to "continue to have unprotected sex with her." Since there is no transcript of the trial, or reporting of whether the man gave testimony or an explanation for his behaviour, I can only speculate that his non-disclosure was not solely to continue having unprotected sex.

In their brilliantly insightful article, Reckless Vectors: The Infecting ‘Other’ in AIDS Law, Heather Worth, Cindy Patton and Diane Goldstein write:
"...lack of disclosure has been described legally as fraud, criminal negligence, criminal nuisance, and many other charges in additional jurisdictions. However, these charges assume that everyone can disclose their HIV status at the time of every sexual act. Numerous recent studies demonstrate that there are many valid cultural reasons why individuals do not disclose their HIV status, including fear of domestic violence, fear of familial or partner abondment, and community rejection. These real impacts make disclosure of one's status nearly impossible for many, particularly for newly diagnosed individuals who are already trying to absorb the shock of their possible death. For some individuals it is likely that nondisclosure was tied to denial of HIV status and what the implications of that status might mean in terms of safe sex practices."

Disclosing that you are HIV-positive is not an easy task. It requires coming to terms with your own diagnosis and accepting it. Then it requires exposing one’s own fears and concerns and the ability to express one’s feelings. It is a task that requires a degree of trust that the response will not be negative or stigmatising (itself a difficult task since HIV-related stigma is also often internalised). Sharing this type of highly personal information also requires that a certain expectation of confidentiality or discretion can be relied upon. For many people HIV disclosure is not an event or a one-time conversation. It is a process that takes time and constant communication.

It is tragic that a case like this resulted in an HIV-positive diagnosis for the man's partner and a prison sentence for the man. If only he had had more support from his HIV clinic – which knew of his mental health difficulties – perhaps both of these could have been avoided.

Finally, I'd like to quote from another great article, Taking the blame: criminal law, social responsibility and the sexual transmission of HIV, written by Matthew Weait in 2001, which I just read for the first time yesterday.
But how dare I, if this is my approach and am infected, blame my partner – how dare I argue that simply because he knew his HIV+ status, he is the one who was at fault in any socially meaningful sense? I dare, because the law allows me to, because the law ignores my risk-taking, my irresponsibility and legitimates my gullibility. I dare, because in law, knowledge operates solely and narrowly as a basis for determining the fault of the person who is (in legal terms) responsible for causing the harm."

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