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Tuesday, 21 February 2012

France: Untested gay man found criminally liable for two previous partners' HIV acquisition

A 39 year-old gay man who was so in denial of the possibility that he might have been HIV-positive that he refused to take an HIV test until 2007 has been found criminally liable for infecting two former partners in 2003 and 2005.

He was sentenced last Thursday by the criminal court of Draguignan to two years in prison, one year of which was suspended, with a further three years' probation. Having already served his sentence whilst on remand, he was freed after the hearing but will have to wear an electronic bracelet for a year.

The man, a special education teacher named only as Christophe in the most detailed French language report (his accuser's first names were also published which is why I am using his first name) was found guilty of "administering noxious substances leading to mutilation or permanent infirmity". He will also have pay between 30,000 and 50,000 euros to each of the two men.

The case dates back to May 2003 and September 2005 when on two separate occasions Christophe had unprotected sex with each of the two complainants, Pierre-Yves and Julien.  Both testified that Christophe had reassured them he was he was "clean" and that unprotected sex "would be OK."

Although it's not clear how they both discovered that Christophe may have been the common source of their infection, the two men complained to the police in May 2006 after discovering their HIV-positive status.

A police investigation subsequently found that both were HIV-negative prior to their meeting with Christophe (although how they found this is not explained). The police also found all (!) the sexual partners the men had had before and after Christophe. The news reports do not state how they were certain that Christophe was, in fact, the source of both men's HIV, and there is no mention of the use of phylogenetic analysis.

Regardless, the most worrying part of the case is that Christophe did not himself test HIV-positive until 2007.  However, according to one of the news reports

The police investigation revealed that although he "knew" he had been infected by a former partner he refused to be tested until 2007.  According to the psychiatrist, he was in "denial about the reality of his illness."  To his lawyer Michel Roubaud, who pleaded for his release, "the element of intent is impossible to characterize."
How does someone "know" they are HIV-positive without having an HIV antibody test?  Certainly, one can suspect this, but that's not the same as "knowing".  This is characterised in law as "wilful ignorance" but then the law does not take into account the stigma of HIV and that stigma can lead to denial.

As far as I am aware there have only been two previous cases where a court has found someone criminally liable for another's HIV infection despite not having had a confirmed HIV-positive diagnosis.

The first took place in England in 2004, where a man pleaded guilty to 'reckless' HIV transmisison despite not having had an HIV-positive diagnosis but rather he "had been warned he was a potential carrier of the virus."

The second took place in Switzerland in 2008. Here, Switzerland's highest court - the Federal Court in Lausanne - ruled that a man who was unaware of his infection when he had unprotected sex that transmitted HIV was still criminally liable for his partner's HIV-positive diagnosis because he did not disclose his sexual history which included a former partner who was living with HIV. 

Update (Tues 21st, 8.30pm): I'm also now aware of a case similar to this French one (untested gay man that claimed he was HIV-negative when he apparently 'should have been aware he might have been HIV-positive because of a risky past') that took place in Rastatt, Germany in 2010. In this case he was found guilty of reckless grievious bodily harm and received a 2 1/2 year prison sentence.

In this current case, several things appear to have gone against Christophe.  First, after one of the men accused him of infecting them, he apparently emailed him a falsified HIV-negative test (although this is not the same as showing a falsified test in order to obtain unprotected sex under false pretences.)

Second, both men testified as to the negative impact of having HIV on their health and career.

Today, Julian is on triple therapy.  He had to give up being a nurse in pediatrics and settle for an administrative job in a Swiss hospital. Pierre-Yves, too, had to give up his career as a caregiver, he now works as a car salesman.

What seems incredible about this case is that two gay men would consider themselves victims under such circumstances.  Until recently most prosecutions in France were of heterosexual men.  It seems the concept of shared responsibility for HIV prevention for gay men has now well and truly disappeared.

Finally, the shorter article on this case, in Le Point, also states that another man has also recently been found criminally liable for HIV transmisison (although I imagine this man was diagnosed HIV-positive before having sex with the complainants). It states that on February 14, a 38 year-old bus driver was sentenced to six years in prison for infecting two partners (gender not specified), one of whom subsequently committed suicide.


moonbeam said...

This is a very very sad outcome , given all the work you have tried to do to create a humanist holistic societal attitude and practice. I try to imagine how this would translate into other health paradigms -
Does this mean that a child can sue a parent who smoked through pregnancy and in the home , if the child develops asthma or lung cancers later in life? The parent can argue the risk ratio by the ambiguity and it is done all of the time - by the tobacco industry, by smokers also.
Can we now progress to targeting other infections - Chlamydia. Can we trace partners and dates and pin down a partner who must have known he was at risk for chlamydia , did not test and by co incidence of timeframe and medical records sue for infertility? Maybe we will come to that .
Will we sue partners who transmit the herpes virus as a kissing disease , because we are a carrier for life...? We are working our way to it. Diagnosis is so ambiguous.
It is not clear from this how he was supposed to "know" he was infected when any person with access to Internet and Fora , Conference debates and discussions could be forgiven for thinking there is still huge ambiguity in the concrete information , and also finite knowledge of what we term HIV.
Gallo always hated that term. It is right that we respect our partners . We don't want to spread antibiotic resistant strains of common infectious illnesses - we are at a crisis in our failure to treat our human 'herds' as anything but that - and our failure to offer safer proven treatments affordably, for infections. Now we have an epidemic of anti biotic resistant super bugs . Can we sue the government and big pharma for this dangerous and reckless collusion, for spreading around treatments that are dangerous and known to cause permanent injury and or susceptibility to more infection?
Can we sue for vaccinations knowingly administered under fraudulent claims as with the H1 N1 vaccine- pushed on beleagured patient populations with scare mongoring and false data?
No. We will hunt down the minority of people who fail to adapt to the changing global 'ethic' on behaviours in the bedroom and make them Homo Sacer.
If a woman is raped and leaves her legal response this long - she is thrown out of court. If we suffer medical injury and cannot put a case together within two years - it is dismissed.
I would be interested to know how they pin pointed this man as being responsible for both infections and in reading or volunteer researching a full feature on the new technologies with both pros and cons for the technology.
There are very vocal critics leaving aside the other merits of this case in the intrapersonal . They had unprotected sex- did they take a HIV test? Did they ask him if he had before having consensual sex? Did they assume, were they in denial about the fact that he might be a risk or they might be at risk? Should a person be criminalised for being 'in denial' about a hypothetical possibility - when there is ample data in the public fora linking in to abstracts and presentations that show no transmission in studies of concurrent partners in sero discordant couplings, that show no transmission among some sex working communities who do not , can not afford condoms. Are condoms even efficient ...? This is going to end with an all out persecution of people classified as HIV Positive . Perhaps we may revert to treating AIDS patients like the Leper colonies Che Guevara swam a river of crocodiles to get to - to be in solidarity with their affliction.This technology is not proven , not in use long enough to be used to criminalise a person in this way.


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