Germany: Nadja Benaissa trial begins on Monday

Update 1: August 13 2010
The trial of No Angels singer, Nadja Benaissa, now 28, begins this Monday, August 16th in the Darmstadt youth's magistrate court (Jugendschöffengericht). 

She faces accusations of one count of grievous bodily harm for allegedly not disclosing her HIV-positive status prior to unprotected sex in 2004 with a complainant who subsequently tested HIV-positive, and four counts of attempted grievious bodily for allegedly not disclosing her HIV-positive status prior to unprotected sex between 2000 and 2004 with this man, and two others.  If convicted of all charges she faces a maximum of ten years in prison.

Deutsche AIDS Hilfe have recently produced information in English regarding the specifics of Germany's HIV exposure and transmission criminal laws.  They highlight the difficulty in proving such allegations and also that most allegations follow the breakdown of a relationship.

In Germany, there is no special law that makes the transmission of HIV a punishable offence. Judgment is made in accordance with Sections 223 and 224 of the Criminal Code. Intentional or negligent transmission of HIV is bodily injury according to the Criminal Code. Unprotected sex that carries no infection, is considered attempted bodily injury and is also punishable. Accordingly, people with HIV have to take the necessary measures to protect their partners. The obligation is considered satisfied when the rules for safer sex are followed. There is then no threat of criminal consequences – not even when an infection is transmitted regardless, because the condom broke or slipped, for example.

People with HIV are liable to prosecution if they have unprotected sex and their partner does not know about their infection. The legal position here is clear. In most cases that go to court, however, the situation is more complicated. Often a couple quarrels and breaks up, then one files a lawsuit against the other.  It is often the case that the partner knew about the HIV infection.  If both partners mutually chose not to practice safer sex in these kinds of cases, then the HIV-positive person is not liable to prosecution. These arrangements are very difficult to prove in court, however. Arrangements are often made when those involved are not thinking clearly, for example, because they are in love or high on drugs. But some couples also consciously decide not to use condoms above all when the viral load of the HIV-positive partner is below the detection limit. The risk of infection is then very small.

Bild.de reported in May that Nadja had cancelled all performances with the No Angels (who have been touring Germany to promote their new album, Welcome to the Dance) due to ill health.

Original post: February 13 2010

Nadja Benaissa, 27, one of the members of Germany's biggest girl group, No Angels, has finally been charged with one count of aggravated assault and two counts of attempted aggravated assault for allegedly having unprotected sex with three men without disclosing that she was HIV-positive. One of the men has tested HIV-positive.

[Click here for a site refresh with all postings on Ms Benaissa]

Ms Benaissa is thought to be the first woman to be accused of criminal HIV exposure/transmission in Germany (there have been around 15 cases so far, all thought to have involved men), and is only the second celebrity in the world to face such charges (the first being US-born Canadian football player, Trevis Smith).

Given that the Darmstadt public prosecutor has waited ten months following her April 2009 arrest, it is my opinion that he is satisfied that he can obtain a conviction for all three charges. This would involve proving that:

• she was aware that she was HIV-positive;
• she knew that she could transmit HIV via sex;
• she did not disclose her HIV status prior to sex that risked transmission; and
  
• for the aggravated assault charge, that she - and only she - could have infected the man who tested HIV-positive. This is not easy to prove, and would require all of the man's previous partners to be located and tested for HIV, as well as expert testimony highlighting what scientific analysis is able to show, and what it can't show.

Coverage is likely to be global – it was in the weeks following her arrest – but for today has been limited to the German press. The best English-language article comes from Deutsche Welle, which adds just one extra piece of new information. Since she was under 18 when the alleged acts took place (in 2000) she may be tried as a juvenile. Nevertheless, she could still face up to ten years in prison if found guilty of all charges.

Given her high profile, it is likely that the authorities want to make an example out of her, to warn other people living with HIV that non-disclosure before unprotected sex is unacceptable. They may think they are doing HIV prevention a favour, but this may backfire and lead to a false sense of security from people at risk, who may assume that no disclosure means no HIV risk.

I'm also concerned that unless her defence gets expert advice regarding proof of transmission, she may end up pleading guilty without knowing for certain that she did (or did not) infect the man who is now HIV-positive.

I also worry that, as woman - and a recently-diagnosed young woman at that - she should not have had to carry the burden of HIV prevention solely on her shoulders. That is no legal argument, but definitely a moral and ethical one that requires highlighting.