Germany: After Nadja Benaissa, two more women prosecuted for HIV exposure and transmission

Until the very public arrest of German pop singer, Nadja Benaissa in 2009, all of the approximately 20 prosecutions and 15 convictions that had taken place in Germany had involved male defendants. Over the past few months, however two more women have been on trial: one for allegedly exposing her male partner to HIV without disclosing her HIV-positive diagnosis, the other for allegedly transmitting HIV under similar circumstances. Both cases are problematic and cause for great concern.

In Fulda, a small city in the state of Hessen (not far from Darmstadt, where the forthcoming trial of Nadja Benaissa will take place) a 32 year-old mother of two known only as Susan B. was found guilty in March of grievous bodily harm for not disclosing to her 41 year-old ex-partner that she was HIV-positive when they had unprotected sex during the summer of 2008. The partner did not acquire HIV.

According to several reports from the local paper, the Fuldaer Zeitung (here and here), Susan's defence was that her partner had known of her HIV status because her ex huband had told him, and that she had been told by her doctor that she was not infectious because she had been on antiretroviral therapy since 2002.

However, the doctor testified that he had not said she was uninfectious, but maintained there was still a risk of HIV exposure (althoug the report does not say if he quantified that risk to her or in court). And conflicting testimony from the 67 year-old ex-husband and the complainant did not satisfy the court regarding the timing of disclosure.

Consequently, Judge Joachim Becher found Susan guilty of grievous bodily harm, and gave her a 12 month suspended sentence. The prosecutor had asked for 20 months imprisonment. During sentencing Judge Becher noted that the complainant continued to have unprotected sex with Susan following her disclosure (as evidenced by their eight month-old son, who was born HIV free – her seven year-old son with her ex-husband was born with HIV) and "the fact that he continued to have unprotected sex with her shows that he, himself, was very careless," he said. He also acknowledged that she had not intended to harm the complainant.

So, how did this case come to the attention of the police? It appears that Susan has a criminal past, and she had previously been convicted of theft, fraud and grievious bodily harm. One imagines, then, that her HIV-positive status was discovered by the police during an unrelated investigation, and the prosecutor decided to throw the book at her. But surely this case should never have been prosecuted in the first place.

Meanwhile, in Hamburg, Bild and the Hamburger Morgenpost report that a 34 year-old mother of three known only as Doreen G. appeared in a St Georg district court in March accused of not disclosing her HIV status prior to having unprotected sex that apparently resulted in her 30 year-old Togolese ex-partner acquiring HIV.

However, the trial has been suspended due to her counter claims that he actually infected her. The Bild coverage includes speculation and gossip from neighbours claiming that the woman had known her HIV status for ten years. Phylogenetic analysis will help clarify if the complainant - who only tested for the first time after discovering that Doreen was HIV-positive – has a completely unrelated strain. If that's the case, then neither would have infected the other. Proving the timing and direction of transmisison is not possible via phylogenetic analysis, however.