UK: The return of the "HIV Monster"

The British tabloid press had a field day yesterday following the sentencing of Nkosinati Mabanda, 44, at Wolverhampton Crown Court for 'reckless' HIV transmission. He received a four year prison sentence; was also given an anti-social behaviour order (ASBO) ordering him not to have sex without first revealing his HIV status (unclear if this also covers his time in prison); and will be considered for deportation following his release.

Of note, the only successful prosecutions for 'reckless' HIV transmission in England & Wales since 2004 have taken place when the defendant pleaded guilty.  (See this table of all UK cases from NAT - an additional heterosexual case in Wood Green, London, was dismissed in March 2011 due to lack of evidence).

In fact, Mr Mabanda had tried to change his guilty plea (and his legal representation) when he realised how difficult it was to prove the charges he'd already pleaded guilty to. He was not only unsuccessful, but did himself no favours by having a further sexual relationship with another woman (who did not test HIV-positive) in the two years he was out on bail.  (The first report of his case, from December 2009, is here.)

Since Mr Mabanda's country of birth is Zimbabwe (he apparently migrated to the UK in 2004), the two right-wing tabloids, The Sun and The Daily Mail pandered to their readers' prejudices and characterised this human being who had make mistakes (as human beings do) as an 'HIV Monster'.

The term "HIV Monster" and its variant, "HIV Avenger", has been around since the late-1980s. The idea that a person with HIV is no longer human but a "monster" was established by the myth of “Patient Zero,” a key figure in Randy Shilts’ bestselling 1987 book about the AIDS epidemic, And the Band Played On. "Patient Zero" was characterised as a sociopathic individual who may have intentionally infected others following his AIDS diagnosis, behaviour for which, Shilts suggested, the coercive powers of the state were ineffective. This myth has since been replayed many times worldwide and is often the impetus for calls for new HIV-specific laws and/or tougher sentencing.

Certainly, readers' comments suggest the tabloids did their job of dehumanising Mr Mabanda - many calling for his death, castration or, at the very least, immediate deportation to what they hope will be a certain and painful death in the absence of HIV treatment in his native Zimbabwe.  Anti-immigration (and anti-African) sentiment is also widely expressed.  The comment below is illustrative of all of the above, and yet also alludes to the difficulties of disclosure due to HIV stigma. (Of course, having children if you are HIV-positive is neither "off the cards" nor "selfish" - it is possible to conceive and give birth with minimal risk to a sexual partner or infant and many people with HIV can, and do, have children with the full support of their doctors, partners and families.)

 

The content of the stories - if not the tabloids' headlines –  take their facts and their moral tone from a police press release, and the words of the complainant.

The press release states:

Superintendent Jan Thomas-West, from West Midlands Police, said: "The particularly disturbing element of this case is Mabanda's blasé attitude towards his victim and his various other partners.

"Mabanda told officers that he had had sex with nine women in the UK and that seven of them had not know he was HIV positive. Unfortunately, these women were impossible to trace.

"He seems to have shown no regard for the health of others or the potential life sentence he may have passed on to anyone who had sex with him.

"His victim will remain on medication forever and her life expectancy has been reduced as a direct result of his actions.

"I am pleased that Mabanda has received a significant custodial sentence today."

West Midlands police subsequently circulated a second email quoting the complainant, parts of which were used in the The Sun and Mail stories.

Further to this release, please find below a statement from his victim, who wishes to remain anonymous:

"I am pleased with the sentence given to Mabanda today and that the judge recognised the seriousness of what he has done.

"I feel a combination of anger and relief. Anger at what he has done to me and potentially other women and relief because he has been punished for his actions.

"I think he should have been given life because that’s the sentence he has given to me.

"What he did has had a devastating impact and will affect me every day for the rest of my life, but now I want to move on.

"If anyone else recognises him because of the media coverage and they have been infected, they should go to the police and I will be there for them."

 The complainant also gave interviews to the local paper, The Express and Star and to BBC Radio 5.

She said: “He should have been given life because that’s the sentence he has given to me. He’s just scum. I hope he’s deported because I hate him.

“I’m on medication now for the rest of my life.”

And in the BBC interview she highlights that Mr Mabanda knew he was HIV-positive "before he came to this country."

I have a great deal of compassion for the complainant, who also admits in the BBC interview that she knew nothing about HIV (including, obviously, how to protect herself) before she discovered from Mr Mabanda's fiancée that she was at risk.  

But there appears to be no attempt to understand how Mr Mabanda acquired HIV himself; continued to have multiple concurrent relationships; and felt unable or unwilling to either use a condom or disclose to most of the women he encountered. (Interestingly, though, he had disclosed to two of the ten women.)  The only evidence of any kind of understanding of Mr Mabanda's issues comes from Twitter.

Couldn't agree more, Krystle.

New Zealand: Charges dropped in criminal HIV transmission case

All charges against a Wellington man accused of not disclosing his HIV-positive status prior to unprotected sex with his female partner who subsequently tested HIV-positive have been dropped because police are unable to trace the complainant.

Not only did Justice Simon France drop the charges of "wounding with intent to cause grievous bodily harm" but also ordered that the man's name be suppressed.

Jo Murdoch, a lawyer from the Public Defence Service, successfully argued in court that the man's identifying particulars should be suppressed.

Justice Simon France said the issue became whether the man's HIV status – a particularly private and sensitive medical fact – should be exposed when grave doubts had been raised about the alleged victim's credibility.

The case did not have the public interest element of a person accused of having put multiple partners at risk or having risky casual sex. Also, the alleged crime was irrelevant to his employment and his contact with the public generally. Taken together the circumstances outweighed the usual principle that justice should be carried out publicly, Justice France said.

Details of the case are sketchy and come from a single story in today's Dominion Post via Stuff.co.nz.

(Pdf of webpage here if link no longer works.)

Police said he did not tell his partner he had HIV, the couple had unprotected sex and she contracted the disease. The man said his partner of several years knew of his condition and that they always had protected sex.

Shortly before the trial was due, information came to light which, if true, would have affected a court's view of her honesty. Police were unable to find her and thought she was hiding from them. They had wanted to check the information before expensive tests to see if the couple had the same strain of HIV.

The Crown offered no evidence against the man, resulting in a discharge which amounted to an acquittal.

Congo: First ever criminal prosecution nets 15 years for husband under poisoning law

The Criminal Chamber of the Court of Appeal of Pointe-Noire in Congo (also known as the Republic of Congo, or Congo-Brazzaville - not to be confused with its larger neighbour, Democratic Republic of Congo) has sentenced an HIV-positive man to 15 years in prison after finding him criminally liable for his infecting his wife. 

The sentence – which also included a payment of $100 million CFA francs (approximately US$210,000) –  as well as the prosecution itself has caused a great deal of controversy since sentencing was handed down on February 24th.

According to a March 2nd report by Inter Press Service Africa (in French here, and Google translated into English here) the case was controversial for several reasons.

First, the judge used his discretion to try Congo's first ever criminal HIV transmission case by utliting the law on poisoning.

"The poisoning in our legislation is not limited. This is an administration or inoculation of substance in the body that cause damage or death," Raymond Nzondo, lawyer for the victim told IPS.

This law was likely inherited from when Congo was part of France's empire. However, French case law has now established that sexual fluids are not poisons, so the anti-poisoning law no longer applies.

Adding to controversy is the fact that an HIV-specific law, adopted by parliament in December 2010 but currently waiting to be enacted, now lists the circumstances in which criminal law cannot be applied to HIV transmission, with criminal liability limited to “intentional and deliberate” HIV transmission. The wording was changed following a workshop convened by civil society in 2009 in accordance with UNAIDS’ recommendations.

"This is illegal, this offense does not even exist in our legislation. I condemn this verdict," Irenaeus Malonga, counsel for the accused, told IPS. He added that he had "already appealed to the Court of cassation [Congo's court of appeal]."

Local organisations of people living with HIV / AIDS have also condemned the verdict. "We do not recognise this sentence as it is illegal. We will organise actions to ensure the man's release," warned Thierry Maba, HIV-positive, president of the Association of Young Positives Congo, a nongovernmental organisation (NGO) based in Brazzaville, the Congolese capital.

"The state was supposed to protect us, but now exposes us now by trial. And (with) 15 years imprisonment for a patient, he will die in prison," says Simon, 35, an HIV-positive man from Pointe-Noire.

The IPS article includes scant details of the actual case, but it does quote the man's lawyer claiming that both husband and wife had other sexual liaisions during their ten year marriage which certainly would create reasonable doubt that her husband was only the source of the woman's infection.

"Who knows exactly who brought the disease home? Is something imagined. Before they married, both spouses had their life, the only screening test is not enough to convict someone," railed Maba.

To Malonga, counsel for the condemned, the expert analysis can not say with certainty that contaminated the first spouse. "The doubt is there! The woman slept around, the man also has slept around, and they were married then," he said.

Adding to the doubt that husband was the source of his wife's infection is the fact that he had been on tretament since 2000 - this fact was used to prove that he knew his HIV-positive status, but there was no argument made by his defence about reduced infectiousness on treatment.

According Nzondo, counsel for the victim, her husband was under treatment since 2000, but had said nothing to his wife. He therefore did not use a condom during sex. The woman then began to develop the disease in 2005.  "The man knew he was sick and was taking medication by hiding his wife. The fact was intentional and criminal," said Nzondo. 

UK: Man accused of 'intentional' transmission last month turns himself in

A 27 year-old man whose name and picture was published last month by The Mirror, following allegations from a former partner that she became HIV-positive as a result of unprotected sex without him first disclosing that he had HIV, was arrested on Thursday by Runcorn police after he turned himself in.

Unusually, according to yesterday's Mirror report, he was charged for 'intentional' transmission under Section 18 of the Offences Against the Person Act 1861. These charges are highly unlikely to stick – proving intent, never mind proving that the man is the source of the complainant's virus – is extremely difficult.  Several other cases in England & Wales where individuals have eventually been found (or pleaded) guilty to 'reckless' HIV transmission began with charges of 'intentional' transmission.

There are no details reported to suggest that man acted with intent.  According to the original Mirror report

The mum who made the complaint is worried [he] could put other women at risk. She was in a relationship with him and having unprotected sex when she was told by one of his former lovers that he had HIV. When she confronted him it is alleged he confirmed he was infected. She was tested and discovered that she also had the virus. The woman, from Cheshire, has two young children from previous relationships. Neither child has the virus. She believes [he] knew he had the virus for more than four years.

What is unusual about this case is the fact that a UK national newspaper picked up on the story before he had been charged.  As far as I am aware, this has only happened once before in the UK, in Scotland (and nothing ever came of the case). 

Although The Mirror's story on Jan 15th, had the headline 'Police hunt man suspected of infecting lovers with HIV' there was only one complainant a "mum of two" who "suspects" he might have infected others.  Of note – and in contrast to US and Canadian statements by the police in similar situations – Runcorn police were somewhat restrained in their characterisation of the man.

A police spokeswoman said: “It is not believed that [he] poses a risk to the public as a whole. However there is potential for risk of harm to those in a domestic relationship with him. Detectives advise that any sightings be reported to police so that the information can be acted upon.

The news spread, virus-like, through other media in the UK and beyond: The Voice on January 17th;  Huddersfield Daily Examiner on January 19th; Yorkshire Post on January 20th; and yesterday – since the man is of Jamaican origin –  in the The Jamaican Star.
 

One interesting side note.  The woman who made the complaint "is said to have endured taunts from former associates. Her home has also been daubed with hurtful graffiti."  One wonders if the police are also investigating this alleged hate crime against her?  

UK: The scandal of Scottish HIV exposure prosecutions (updated)

Update: June 29 2010

Mark Deveraux's appeal against the length of his sentence has been successful and he will now serve eight years in prison, rather than the ten years passed down in February.

BBC news online reports

At the Court of Criminal Appeal in Edinburgh, Lord Osborne, sitting with Lord Kingarth, ruled that the sentence had been excessive.

Mr Deveraux continues to make tabloid headlines. On Sunday, Britain's largest circulation newspaper, the News of the World reported

HIV monster enjoys day out of jail. HIV monster Mark Devereaux was out in the sunshine this week — on his first jaunt from jail to have treatment for his disease at the taxpayers' expense. The fiend, who infected one lover and slept with three other women knowing he had HIV, was whisked out of Peterhead nick on Thursday for a trip to Aberdeen Royal Infirmary.

A second article that interviews his 'victim' provides more details here.

The appeal judges decided on Tuesday that Devereaux should have been jailed for 12 years but his early admission had earned him a discount of a third.

Original post: Feb 26 2010

Yesterday, Mark Devereaux was sentenced to ten years in prison after being convicted of infecting one female partner with HIV and having unprotected sex with three other women without disclosing his HIV status.

There has been much media response, ranging from the sensationistically stigmatising (Scottish Sun) to the balanced and liberal (BBC via THT).

However, my favourite response comes from a blog posting by a Scottish "socio-legal researcher [with] a particular interest in the diffusion of social knowledges and how they come to exercise legal force." I am posting below, with their permission, the entire posting from the Lallands Peat Worrier blog entitled The scandal of Scottish HIV exposure prosecutions....

When it was reported that Mark Devereaux had plead guilty to four charges of culpable and reckless conduct in the High Court in Dumbarton, I wrote about some of the implications and justification for Scots criminalisation of HIV transmission. Let’s be clear on our facts. Devereaux did not tell four of his sexual partners that he had been diagnosed with the Human Immunodeficiency Virus. Reportedly, he had been in long term relationships with two of these women. One of the women with whom Devereaux had an extended relationship was herself diagnosed as HIV positive as a result of their unprotected sex. The three other women were not. Yet four charges were pressed against Devereaux for culpable and reckless conduct. The three for mere exposure, as opposed to reckless transmission of HIV despite personal knowledge of that status, are the first such prosecutions in the United Kingdom. He has now been sentenced.

My first post on this subject asked a number of questions, explored a number of the issues. How do we construct harm? How do we select what harms are punishable by our criminal law? By contrast, this post makes a more specific argument. I believe that despite his strongly unattractive conduct, his lies, the emotional distress he has certainly caused a number of people – that it is absurd to prosecute a man for “exposing others” – and notice how passively this constructs female sexuality – to HIV. On transmission, my mind is less made up. However, as I commented earlier, the present legal position means that it is at least theoretically illegal for those who are HIV positive to engage in procreative sex in Scotland. This is scandalous. Finally, partly informed by the foregoing, sentencing the miserable Mark Devereaux to 10 years in prison is palpably excessive. Through his legal agents, I hope he ventures to lodge an appeal against the sentence handed down by the Court this month.

The Scottish legal magazine the Firm have Lord Pentland’s full sentencing statement of the 25^th of February. They don’t begin well, confirming that “A man has been sentenced to ten years in jail after embarking on a series of sexual relations whilst in the knowledge that sexual contact would pass on the HIV infection to his partners” (my emphasis). This, as the facts of the case bear out, is total bunkum. Devereaux pled guilty to four charges of culpable and reckless conduct – three of which were prosecutions for “exposure”, while only one woman is now HIV positive as a result of Devereaux’s actions. We’re dealing with risk and potentialities here, not unavoidable necessities implied by the Firm’s would. Here is what Lord Pentland had to say:

“Mark Richard Devereaux, you have pled guilty to four charges of culpable and reckless conduct arising from a prolonged and sustained course of utterly irresponsible, dangerous and selfish sexual behaviour on your part. In short, knowing full well for many years that you had been infected with the Human Immunodeficiency Virus, you repeatedly and regularly had sexual intercourse with a number of women, without taking any steps to protect them against the risk that you would thereby transmit the virus to them. You were well aware from the medical advice given to you that you were at risk of infecting any sexual partner if you had unprotected intercourse, but you chose not to inform any of your partners that you had the virus and you chose not to use a condom or take any precautions.

You were engaged in long-term relationships with two of your victims and you infected one of these women with the virus. She decided to have an abortion when she discovered that she was infected. When the other of your long-term partners found your medication at one stage, you denied that it was for HIV and continued to have unprotected sex with her.

Those of your victims whom you did not infect were nonetheless each exposed to a considerable risk of contracting the virus. It seems to me that you callously and cruelly betrayed the trust placed in you by each of your partners and that you deceived them for your own self-centred reasons. Each of your victims has been devastated by these events. The person whom you infected will have to live for the remainder of her life with the knowledge that she now has the virus. She will require to have regular medical treatment and to take regular medication. She may suffer further consequences and must live with the uncertainty of that hanging over her. The charge in relation to her includes the serious aggravation that her life has been endangered. The others have all suffered great distress and anxiety on learning the truth about you and your deceitful and reprehensible conduct towards them.

I have taken full account of all that has been said on your behalf by Mr. Renucci and of the contents of the Social Enquiry Report. I accept that you have a good employment record and that you have no analogous criminal convictions. I am willing to accept, to some degree, that you pushed the reality of matters to the back of your mind, but this cannot in any sense excuse the highly irresponsible nature of your behaviour.

In my opinion, your persistent failure to be open about your condition and your prolonged insistence on having unprotected sex with a number of women over a period of several years shows a gross level of recklessness on your part and a total indifference to the welfare of those with whom you had intimate relations. In these circumstances, a substantial custodial sentence must be imposed. Had it not been for your guilty plea tendered at an early stage, I would have sentenced you to a term of thirteen years imprisonment.

You are entitled, as a matter of law, to a discount to reflect the fact that you pled guilty. In selecting the discount, I note that you made full admissions to the police when they interviewed you in July 2009. It is accordingly difficult to see that you ever had any possible defence to the charges. I accept, however, for the reasons set out by your counsel that your early admission of guilt had some utilitarian value. In the whole circumstances, I shall exercise the discretion conferred on me by reducing the sentence to one of ten years imprisonment. This is a cumulative sentence imposed in respect of all four charges. I shall backdate that sentence to 19 January 2010 since when you have been in custody in relation to this matter. I have already certified you for the purposes of the Sexual Offences Act 2003. The Clerk of Court will inform you in writing of the period during which the notification requirements will apply.”

Flatly, I’m appalled that the Court considers 13 years appropriate punishment for the charges as libelled, despite the reduced quantum for formal contrition and admission of fault. Moreover, a single ‘cumulative’ sentence is a suspicious beast – how does it break down? One year a piece for the exposure cases, ten for transmission? Giovanni Mola, whose case I discussed in my previous remarks, received nine years imprisonment for reckless and culpable transmission. He pled not guilty, however, and thus received no reduction for tendering a guilty plea. Given that comparator, it is difficult to tease out exactly how the case broke down in Lord Pentland’s mind. It is fair to argue that the exposure offences, which I’m particularly concerned with here, were tabulated to at least one year apiece.

Which brings us on to the nature of the conduct justifying such an imposition of penalty. Detective Inspector Martin Dunn, of Grampian Police, is quoted elsewhere remarking (fairly in the first sentence) that: “Devereaux acted with almost unbelievable irresponsibility and recklessness.” The Inspectors then embroiders this remark with another: “He has blighted the lives of all the women he had relationships with since being diagnosed”. I fail to see how this is true with respect to the three cases of culpable and reckless exposure. Like a tedious bore with his cyclically recurring ‘cancer-scare’ story, who relates how the queer, painless lump that put his world all out of joint and prompted melancholy reflections on his own morality was merely a benign cyst - yet still petitions for our interest and confirmation of his victim status. I don’t mean to imply that this whole process can have been easy for any of the women by any measure. I’m sure much upset and alarm resulted when Devereaux’s sexual partners realised that their past conduct may have had consequences which are unknown and challenging. But don’t let’s forget – only one of these women have any lasting physical repercussions. So why talk about them as if all four cases were fundamentally the same? Why the justifying innuendo, the implausible claims to permanent injury? “The others have all suffered great distress and anxiety on learning the truth about you and your deceitful and reprehensible conduct towards them”, said Lord Pentland. True enough, I’m sure. But hardly the stuff that state prosecutions are justified by, is it?

How many individuals sexually betray their fidelity to a partner – and generate analogous care and stress? How many parents inflict their neuroses on their guileless children to their permanent psychological injury and the disfigurement of their life’s potential? How many employers callously and with malice a’forethought, make their workforces redundant but luxuriate in inflated bonuses, to the workers’ significant anxiety, distress and manifest suffering? The point about all of this is not to collapse any of these claims to have suffered, to have been the victim of another. Rather, they highlight the crucial point – the criminal law doesn’t exist to salve hurt feelings or correct all the small and major injustices which we all inflict on one another. Its causes of action are generally and ought to be far narrower than the manifold capacity of humankind to err and sin. There but by the Grace of God, you might argue, for these three women, left unharmed. No thanks to Devereaux, certainly, but smiling Fortune and a bit of luck. Yet this isn’t just about one man, his lies, his breaches of trust, his scurrying and contemptible character. We operate within an ideology of legal rationality, where Devereaux the individual is separable from Devereaux the legal category, the formal authority, the basis for legal reasoning in the future. This second Devereaux concerns me acutely – the prosecution and punishment of HIV exposure and the criminalisation of the sex lives a section of the community should concern us all. Particularly with the tabloids commentating at a shrill fever pitch, full of passionate intensity.

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.

UK: Scotsman pleads guilty to UK's first-ever charges for HIV exposure

A 41 year-old man from Scotland has pleaded guilty to four charges of culpable and reckless conduct after being accused of not disclosing his HIV status to four women between 2003 and 2008, only one of whom became HIV-positive. Although there have been almost 20 convictions for reckless HIV transmission in the UK since 2001 (of which only two were in Scotland), this is the first time that a conviction for HIV exposure following non-disclosure has been successfully prosecuted in the United Kingdom, although Scottish law has always allowed for this possibility.

The case of Mark Devereaux has been widedly reported in both Scottish and English media. While reports on BBC Online, the Scotsman, and STV.tv were somewhat neutral, tabloid coverage has been typically stigmatising, including today's Scottish Sun (Headline: "HIV fiend is lowest of the low" - inexplicably, he is named as Richard Devereaux in the article); Scottish Daily Record (which calls him a "callous predator"); and the UK-wide Daily Express (Headline: "HIV rat facing prison for infecting his lover').

Most of the articles focus on the fact that the 28 year-old woman who became HIV-positive was diagnosed during routine prenatal screening. She subsequently terminated the twins she was expecting with Devereaux. Some also refer to a fifth woman who was diagnosed alongside Devereaux in 1994. All of the articles rubbish Mr Devereaux's defence that he was in denial because the proseucution provide evidence that he was taking antiretrovirals - as if the two are incompatible!

BBC Online also followed up its news story with a second report pubished today focusing on the reaction by the HIV sector, and specifically its concern that this conviction will lead to more arrests for non-disclosure without transmission in Scotland.

Deborah Jack, chief executive of the National Aids Trust (NAT), said: "It is totally unjust to single out people with an HIV diagnosis for punishment for unprotected sex - we all need to be wiser and safer, looking after ourselves and those we have sex with.

"Most HIV transmissions are from people who have never had an HIV test.

"We recommend that the Scottish Executive change the law so that people with HIV cannot be charged with culpable and reckless conduct if no transmission took place."

Roy Kilpatrick, chief executive of HIV Scotland, said: "We are particularly worried about the fact that prosecutions were brought in this case in respect of three sexual partners of Mr Devereaux who had not contracted HIV.

"We recognise that the primary motivation for bringing this prosecution must have been the actual transmission of HIV and that the prosecution would have felt it necessary to put the full context before the court.

"However, it would be alarming if the charges brought in this case open the door for future prosecutions in cases where no harm has been caused."

He said that bringing prosecutions where no harm had been caused would stigmatise people living with HIV.

Mr Kilpatrick called for a clear statement of Scottish prosecution policy.

Australia: Man gets 4 1/2 years for impossible HIV transmission

Update: December 16th
Wepukhulu Zebtek was sentenced to four-and-a-half years in prison by Judge Allan Fenbury who "said the sentence would deter other carriers of the HIV virus from not informing their sexual partners". Mr Zebtek will be eligible for parole in two years and three months.

Original post: October 19th
Something is very wrong with this picture. In January 2008, I reported that a Perth man, Wepukhulu Zebtek, now 44, had been charged with aggravated sexual penetration after allegedly raping a woman and apparently infecting her with HIV, but that his lawyer had successfully argued that since the woman had tested HIV-positive three days following the alleged rape, his client could not possibly have infected the woman, because it takes much longer than three days to form antibodies to HIV.

Today, the AAP reports that Mr Zebtek has pleaded guilty to causing grievous bodily harm after the charge of aggravated sexual penetration was finally dropped last month.

In other words, he has pleaded guilty to infecting a woman he couldn't have possibly infected, something that none of the various Australian news outlets, such as ABC news and Fox news mention.

In fact none the reports now mention that the sex they had was originally, allegedly non-consensual, but all the stories focus on the fact that Mr Zebtek didn't use a condom despite knowing he was HIV-positive. Only the AAP story also mentions that he didn't disclose before unprotected sex (which is an important element of the 'crime').

Obviously some deal has been done between his original arraignment and today's guilty plea, but I don't understand why Mr Zebtek would plead guilty to this charge, given the evidence that he couldn't possibly have infected the complainant.

I can only guess that it has something do with his previous history of unprotected sex, although this did not result in any criminal charges, according to the AAP story.

He had been counselled by the Victorian Department of Health in 2002 after a number of reports he was having unprotected sex with women other than his wife. Mr Sholz said Zebtek had denied the claims at the time but was given comprehensive and clear evidence about the risks of unprotected sex and was told he must practise safe sex. Victorian authorities closed his file after 2004 and Zebtek moved to W[estern] A[ustralia].

Mr Zebtek has been released on bail until his sentencing in December, when he faces up to ten years in prison.

New Zealand: Alleged 'HIV predator' dies in cell

The man at the centre of New Zealand's biggest ever criminal HIV transmission case died in his cell in the early hours of Monday morning. His death is not being treated as suspicious, but the Coroner is investigating the circumstances.

The post-mortem has already begun on the impact of his death, however. GayNZ.com, which first alerted the public to 40 year-old Glenn Mills, dubbing him the 'HIV predator', has already run several pieces, including an interview with the first complainant to go to the police.

The first young formal complainant was described as "incredibly brave" after he fronted up to Auckland's Adult Sexual Assault Team in May with details of his sexual relationship with Mills and his subsequent HIV diagnosis. His evidence was the break police needed to ramp up the case into a fully-fledged investigation which revealed many more allegations. He says he felt all along that Mills should have faced justice and "fronted up to what he had done."

The young man, who has preferred not to be publicly identified, says news of Mills death is sad but he feels a sense of relief. "The anxiety of knowing that sometime soon I would have to stand up in court and reveal so much to strangers and be cross-examined about intimate aspects of my life has been intense," he says, "...at times it has been overwhelming." He says even in recent weeks he had been feeling "overwhelmingly black thoughts" about his situation but has been receiving lots of support... so many professional people and organisations have been there when I needed them, I truly appreciate their help." He says he was dreading the possibility of Mills being released on bail. "Meeting him in the street or having him contact me directly or through others would have been terrible.

"I think I may get some closure on this now," the man said this morning just minutes after hearing the news of Mills' death, "I hope so anyway. But this is not the way I would ever have wanted it to happen."

Reactions have also come in from the main NZ HIV organisations. Another piece from GayNZ.com quotes Body Positive Auckland chief executive Bruce Kilmister:

"We are deeply sorry to hear of the death of Glenn Mills," says [Kilmister]. "We realise that people may have mixed feelings about him but we also acknowledge the stigma associated with HIV which he was having to deal with after after his health status was publicly revealed." Body Positive has been supporting a number of young men who believe they contracted HIV from Mills. Kilmister says his team are working quickly to contact everyone they can to put in place professional counselling and peer support.

Mr Mills' death is a mainstream news story in NZ, too. TVNZ.com, which aired an uncomfortable in-depth report on the case in June, published a story on its website today also quoting Mr Kilmister:

He says the premature death of an HIV sufferer is sad but it will spare victims and their families from having to give evidence before the court. "That's the only positive aspect we can see. It will avoid any long trial and won't put any people through that ordeal."

Despite their use of the phrase 'HIV sufferer', I was heartened to see they included this quote from him, too:

With his death coming the day before World Aids Day, Kilmister says it reinforces the message that people need to continue to test themselves and to practise safe sex. "Each person has a responsibility to keep themselves and others safe from the transmission of this virus." He says public attitudes towards the disease have made some progress but there is still some stigma towards people with the disease.

A story from NZCity.com focuses futher on the 14 complainants (seven of whom had tested HIV-positive).

Head of the Auckland Adult Sexual Assault Team Detective Sergeant Andy King says some of the 14 people who came forward to complain about Mills are quite upset about his death. He says others are happy the matter is now behind them. "They all came forward knowing well and truly that they may have to give evidence at court. And some when I spoke to them, or when they were spoken to by police, indicated that they were sorry that they wouldn't get a chance to see justice being done."

The article ends with some rather mixed messages, however, from Hannah Jennings-Voykovich, editor of Express, NZ's gay mazagine.

Ms Jennings-Voykovich says this case has highlighted the need for people to have personal responsibility when it comes to safe sex.

But earlier in the piece

[Jennings-Voykovic] says as she relayed the news to staff this morning, there was sense of relief. However she says there are still many unanswered questions. "Whether there was the intent. Whether there could be proof that there was an intent in court. And I think there are going to be a lot of hurt people out there wondering what happened." [She] says there will now be no sense of justice for Mills' victims. "A person that we spoke to this morning said 'I believe he got off lightly'."

We shall never know whether the case of Glenn Mills, the alleged "HIV predator", was more hysteria than fact. Earlier this month, Mr Mills was in court faced with an order to provide a sample of his blood for phylogenetic analysis. This would have been compared with samples from the seven complainants who claimed he was the source of their infection, and that he "deliberately" infected them by not disclosing his HIV status when they had consensual unprotected sex. This test may have shown that he was not the source.

It's also interesting to read about the relief his death has brought, not just to some of the complainants, but also to some in NZ's gay and HIV community. His trial may have been difficult – and the media reporting would certainly have added to the stigma associated with being gay and living with HIV – but it may also have exonerated Mr Mills, or at least shown that he may not have been any kind of predator (as is the case with most people accused of such crimes).

Still, putting the boot in, is GayNZ.com's content editor, Jay Bennie, who tells 3 News

“Right from the start we described Glen Mills as a predator, and that has been controversial – but I stick by it,” says Jay Bennie of GayNZ.com. “He has been manipulative, he has been cold and calculating, he has preyed on people who are vulnerable.”

Instead, his legacy has been sealed via trial by media – and he was found guilty in that domain long ago.

[This posting is the first to reveal the name of Mr Mills, even though it has been in the public domain since June. I hesitate to include it even now, but do so to help balance the reporting on his death and legacy.]

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."

Brazil: Health ministry says no to criminalisation following two high-profile prosecutions

Brazil's Ministry of Health is preparing a public statement in which it recommends that prosecutions for negligent or reckless HIV exposure or transmission cease. Rather, only intentional transmission where both intent and transmission are proven, in accordance with UNAIDS guidance, should ever be prosecuted. The statement follows two high-profile prosecutions in São Paulo.

I first heard of this yesterday when the legal correspondent of Veja Magazine, the largest circulation magazine in Brazil (and fourth largest in the world), contacted me for information about other countries' approaches to criminalisation for an article she is writing about the issue.

She told me that the first prosecution actually took place in 2004, but that the case has become a national issue since the man's retrial, which ended two weeks ago. The case involves a married man who was charged with attempted murder for not disclosing his HIV status to his mistress during their three year affair, and who subsequently tested HIV-positive. His wife of 25 years knew he was HIV-positive and they always used condoms, and she is not a complainant. In the first trial, the Grand Jury found him guilty of attempted murder and he was sentenced to eight years in prison. This was upheld on appeal, but a second appeal based on a legal technicality led to a second trial in which he was charged, and found guilty of, the lesser charge of assault and sentenced to two and half years - time he had already served.

A second case involves another heterosexual man who has also been charged with attempted murder for having unprotected sex without disclosure with three women, two of whom subsequently tested HIV-positive. This case is ongoing and awaiting a decision from the Supreme Court.

What is significant is that Brazil's government appears to be on a collision course with the judiciary. Although my Veja correspondent was vague about the Ministry of Health's statement (she had not yet been able to interview them), I found this report from Odia/Terra online published on Tuesday which includes a quote from the Ministry of Health's Eduardo Barbosa

According to Eduardo Barbosa, Deputy Director of the Department of STD, AIDS and Hepatitis from the Ministry of Health, in order for HIV transmission to be considered a crime the court must, in addition to proving intent, consider the existence of "psychosocial factors", the stage of treatment of disease and the responsibility of the partner to protect themselves.

A ministry statement goes against a global trend to criminalize those who transmit the disease, according to Barbosa. "Some countries end up adopting such measures as if it were possible to isolate and blame in order to control the epidemic."

This fits well with Brazil's history of focusing on a human rights approach to HIV. In fact, the government is about to pass a new (protective) law which will punish anyone who discriminates against someone with living with HIV with up to four years in prison.

Bill 6124/05 criminalises anyone who promotes any act of discrimination, exclusion or restriction of people living with HIV in schools and kindergartens; in the workplace; and in healthcare settings. It also criminalises third party disclosure of someone's HIV-positive status in these settings.

O reporter.com reports that

Bill 6124/05 was approved unanimously today [17 November] by the Committee on Constitution and Justice (CCJ) of the House of Representatives. The approval of the project, which was approved by the rapporteur, Congressman Regis de Oliveira (PSC-SP), will benefit about 630 thousand infected in Brazil...

"Nearly a decade after we first attempted to pass this law, the House of Representatives is finally close to creating a law that punishes any act of distinction, exclusion or restriction to people who are HIV-positive," said Regis de Oliveira. During the debate, the proposition, which is being handled in the Committee on Constitution and Justice (CCJ), had the support of most lawmakers...

"It is important that society should identify the various forms of discrimination in order to eliminate them, helping to respect, protect and fulfill human rights. Discrimination threatens the rights of these citizens live in dignity, so that often they become victims of irreversible psychological damage, " he concludes.

The bill now goes to the vote on the House floor.

I should have more details on the cases and the government's official response next week.

China: Woman accused of intentionally infecting 30 men (update)

Update: 19th October

News sources from China, including this English-language report from China Daily, say that this story was an elaborate hoax perpetrated by the woman's disguntled ex-boyfriend.

An illicit blog that has swept the Internet and claims to tell the story of an "HIV-infected prostitute" is a sick hoax by an angry ex-boyfriend, police said yesterday. The post, which featured 300 indecent pictures of [the woman], along with 279 cell phone numbers of "former clients", emerged last week and rapidly spread across the nation's Web portals. The post claims the 30-year-old was raped by her stepfather at 15 and had become a waitress at karaoke bars in Beijing, and that the cell numbers were published in revenge against society. However, police in Yan's native Rongcheng county, Hebei province, told China Daily yesterday that the blog had been written by the woman's ex-lover - a married man from Beijing.

The suspect, whose name has not been released, had demanded 5,000 yuan ($730) from [the woman] when they split up but she refused, said a local police officer who declined to be named. The man later told police the woman's brother had attacked him, the officer said. The suspect then returned to the capital and, using the cell numbers he had received at the Rongcheng county police station, began to send indecent pictures of Yan to several officers via SMS. "We have kept those text messages and we will sue him for smearing our reputation," said the officer, whose number was one of those listed on the blog.

Another news report, published in Chinese, says that the woman was tested for HIV by the public health authorities and intial results are that she is, in fact HIV-negative.


Original post: 18th October

A South Korean news website has run a story from their Beijing correspondent alleging that TV stations and other media in China are reporting that a former female sex worker in China is under suspicion of intentionally trying to infect hundreds of male sex partners with HIV and that at least 30 of these men are HIV-positive.

I was alerted to the story by a blog reader, a law professor in South Korea, who points out that since South Korea has created a climate of fear and misinformation around HIV in the country, which has policies that blame foreigners for bringing and 'spreading' HIV in the country, and, have targeted non-Korean national English language teachers in particular, the reporting may well be inaccurate or biased.

The reader has found no other reports about the case, and certainly none have appeared in the English language. Although the report cannot be verified, I do know that in 2006 the Chinese government announced that China was going to start to prosecute individuals "who know they are infected with AIDS or are sick with AIDS and deliberately infect" others.

The report, on nate.com (fuzzy English Google translation version here) claims that the Chinese woman (who is named and pictured in the report) intentionally tried to infect several hundred men in several cities in China by having sex with them and not disclosing her HIV status. She allegedly had the phone numbers of 279 men on her cellphone, which the report suggests is proof enough that she slept with all of them.

It also claims that she admitted on her blog that she slept with men indiscriminately in order to get 'revenge' for having become HIV-positive herself and that her life was so awful she didn't care what happened to her. A relative tells the paper that she was raped by her stepfather when she was 15, and after she ran away from home she became a sex worker in order to survive.

It notes that Chinese society has been shocked by these reports, although it is unclear whether she has been arrested or charged with any crime, since it states that she is currently staying with friends in Beijing.

Germany: Man accused of intentional sexual transmission; complainant gives interview

An HIV-positive man has been arrested in the northern German city of Kiel accused of grievous bodily harm following a complaint from a 39 year-old woman who recently tested HIV-positive and who claims the man lied about his HIV status before they had unprotected sex. She also claims that he admitted to her that he plans to infect more women.

The story appeared today as an interview with the female complainant in the Hamburger Morgenpost (not-quite perfect English translation from Google translate here).

The woman, known as Beate K. is also photographed, but appears to be heavily disguised in a wig and sunglasses. She names her accused as Volker W. whom she met on an online dating site following the end of her 20 year marriage.

According to Beate, who lives in a small village in Schleswig-Holstein (of which Kiel is the capital), Volker persuaded her to have sex after two months and told her that he was "clean" and was tested for STIs "regularly". She claims he refused to wear a condom.

It's not clear from the interview whether they had sex more than once or how long the relationship lasted. But "in the summer" she became ill, and was eventually diagnosed with HIV disease. She says that since Volker was the only man she had been intimate with since her divorce, she called him to let him know. It was at this point that Beate claims he infected her deliberately

"He admitted he had infected me, and boasted that he would infect other women, since he was already in a new relationship."

The police became involved, arrested Volker W., and are keeping him in custody because there is a risk he will reoffend. According to spokesperson Uwe Wick, they know of three women "affected". He asks that any other women "overcome their shame and report it to the police."

Whilst I have no reason to doubt the veracity of Beate's statements, I am concerned that this testimony will possibly prejudice any judge or jury that may come across this case in the future.

There are certainly good ethical and legal grounds for prosecution, but one of the things that stands out about cases where female complainants go public to talk about their experiences, is the missed opportunity to highlight that even divorced women in small villages in northern Germany are at risk of HIV, and that they shouldn't rely on their male partner's (lack of) disclosure to protect them.

The point of the criminal law is to punish actions that we consider to be morally harmful. In this case, it appears to be warranted (although I would like to hear both sides of the testimony in a trial before my mind is made up). Proponents of crimalisation point to cases like these and say: well, of course, there should be prosecutions. He's bad, he must be punished.

But how has the criminal law (and the media reporting on it) impacted on HIV prevention, on public health? Has it stopped future infections? Possibly, if the man's intention was to infect more women. But the implicit message here is that women need only worry about these rare "monsters" who deliberately set out to infect them.

In order to avoid even more infections, women need to be aware that it is not just "monsters" that can transmit HIV, and that unless they insist on condoms (where that is possible, as it was in this case) rather than rely on disclosure and reassurance, they will be protecting themselves from all partners who may have HIV and may not tell them, either because they don't know they are infected or because they don't disclose.

[Thanks to my German partner, Nick, for helping me understand the report.]

US: 'It's Criminal', says POZ magazine; my HIV exposure round-up proves it is!

The October issue of POZ magazine is just out, and their cover story is about the criminalisation of HIV non-disclosure.

It's a timely reminder that the US prosecutes more HIV-positive individuals than any other country in the world. They go after us not only for allegedly not disclosing our HIV status before sex but also for just being HIV-positive and having sex or doing other things that are so low on the scale of HIV transmission risks that criminal law involvement becomes a stigmatising over-reaction.

In fact, over the summer months I've been so overwhelmed with news reports of prosecutions from the States, that I've had something of a backlog. So, here's a summary of what's been happening in August and September.

• August 14th: In Ocala, Florida, a 39 year-old woman was arrested for not disclosing her HIV status. The complainant was a 58 year-old man who had sex with her once, according to Ocala.com.
• August 21st: In Palm Beach, Florida a 32 year-old woman was arrested for "committing prostitution while HIV-positive, a third-degree felony which can result in up to five years in prison", according to The Palm Beach Post.
• August 27th: In Oklahoma City, a 40 year-old man was arrested following a complaint from another man for not disclosing his HIV status before oral sex. He was charged with "knowingly engaging in conduct reasonably likely to transfer HIV", according to newsOK.com.
• September 3rd: In Memphis, Tennessee, a burglary suspect was charged with criminal HIV exposure after he "he spit blood in the officer’s face and said that he was HIV-positive" during his arrest, according to myeyewitnessnews.com.
• September 11th: In Florence, South Carolina, a 35 year-old was arrested for HIV exposure after a complainant went to police (sex of both individuals unknown). "A person who violates this law is guilty of a felony, and upon conviction, can be fined up to $5,000 or serve up to 10 years in jail," according to WMBFnews.com.
• September 11th: In Dayton, Ohio a 25 year-old "male prostitute is facing felony soliciting and prostitution charges after he was picked up by an undercover cop working as part of a prostitution sting," reports the Dayton Daily News. His name, face and HIV status was also published.
  
• September 17th: In Fort Smith, Arkansas, a 33 year-old man "charged with knowingly exposing a person to HIV is also the lone suspect in a 2002 homicide in North Carolina", reports the Times Record. The 2002 murder allegedly took place after the female victim discovered the man's HIV status and threatened charges.
• September 21st: In Mattoon, Illinois a 42 year-old man faces HIV exposure charges after a 19 year-old woman complained to police that "he engaged in sex with her, knowing he was HIV positive", reports the Journal-Gazette Times-Courier.
  

Admittedly, the Arkansas case does warrant some criminal justice system investigation (if only to finally prove or disprove these 2002 allegations). It is also the only one where the complainant is acually HIV-positive. I have a feeling we'll be hearing a lot more about this case if and when it goes to trial!

Back to the POZ piece. Page 1 features an overview of US laws; why POZ believes they are wrong and out-of-date; and what HIV-positive individuals can do to protect themselves from prosecution.

If you can get a person to indicate that you have made it perfectly clear that you have HIV, and do so in front of a witness, such proof of disclosure may hold up in court. But unfortunately, many states do not define what constitutes “informed consent.”

[...]

Of course, it is also a good idea to use a condom. While not a legal defense in some states, condoms reduce the risk of spreading HIV. Historically, fewer people have been prosecuted for nondisclosure prior to sex when a condom was used.

Most important, the HIV community must lobby local, state and federal government officials and lawmakers to rewrite (or better yet, abolish) the laws that criminalize HIV transmission. Contact your mayor, your congress people, your state senators and their staff. Educate them about HIV risks and transmission, and hold their feet to the fire to ensure that all people living with HIV are not unfairly punished.

Page 2 features "comments posted on POZ.com by readers in response to various news stories and opinion pieces on the subject of criminalizing people living with HIV."

Page 3 has an excellent interview by Regan Hoffman with Catherine Hanssens, executive director of The Center for HIV Law and Policy. Highlights include:

"It’s hard to think of any disease or context in which someone would be put away for 20 years for what is basically an act of consensual sex where no one has been harmed. But the reporting in the mainstream press [about these cases] is informed by huge misunderstandings about how HIV is transmitted and a lot of ignorance about whom HIV affects and what drives the epidemic."

"The things that you would want to do to protect yourself and your partner are not necessarily the things that are going to be rewarded in the courtroom. There is a disincentive to disclose because proof is a difficult thing."

"Disclosure is not the equivalent of latex... The thing that stops transmission is latex, not words."

"The notion that we need a whole other set of standards and separate laws [to prosecute the nondisclosure of HIV] reveals that it’s not the intent to harm that results in a lot of prosecutions, but rather the ignorance about how transmissible HIV is and a revulsion for people who are affected by HIV."

Couldn't have said it better myself!

US: Padieu case gets the 20/20 treatment; phylogenetic analysis totally misrepresented

The case of Philippe Padieu, the French-born Texan found guilty in May 2009 on six counts of aggravated assault with a deadly weapon and sentenced to 45 years for five counts and 25 years for the remaining count – all of which run concurrently - was featured last Friday night on US ABC TV's tabloid-style news magazine, 20/20.

Five and half million viewers watched as Mr Padieu faced trial by media yet again. All six parts of the one hour show (actually 39 minutes minus commercials) are available to watch online.

Part 1: Women recall HIV criminal's allure
Part 2: HIV diagnosis rocks women's lives
Part 3: Women take matters into own hands
Part 4: HIV serial dater faces victims in court
Part 5: Man convicted of HIV crime speaks
Part 6: Women want case known to protect others

It's basically sold as the story of a group of scorned women uniting to put Mr Padieu behind bars, summarised beautifully by the accompanying story on the ABC news website headlined, 'How Women United to Stop HIV-Positive Man, Women's Horror at Diagnosis Replaced With Mission: Stop Man From Infecting Others.'

There's so much I could say about the show, which is something of a milestone in criminal HIV transmission reporting in the mainstream media, but I'm going to limit my comments about the very worrying misrepresentation of phylogenetic analysis as 'proof' that Mr Padieu was the source of all the women's HIV infection. Perhaps blog readers could fill in the comments sections with insights and criticisms of their own about this programme.

[Update: Catherine Hanssens of The Center for HIV Law and Policy has some terrific comments and insights in her Sept 29th blog post.]

In Part 4 of the show, presenter/journalist Elizbeth Vargas says that it was Mr Padieu's "own DNA" that proved he was guilty. But phylogenetic analysis is all about testing the genetics of HIV, not the individual. They then showed one of the US's foremost experts in HIV forensics, Dr Michael L Metzker, of Baylor College of Medicine, Houston, Texas, who testified for the prosecution that Mr Padieu's virus was extremely similar to that of the six women. Except here he says definitively that Mr Padieu was "the source" of the six women's HIV. I've written about the limitations of phylogenetic analysis many times: the issues are summarised here.



In the final part of the show, we are introduced to 'Lisa' who dated Mr Padieu in 1997, and was diagnosed HIV-positive that same year. The show gives Dr Metzker a sample of Lisa's blood and he says that "preliminary analysis" suggests that Mr Padieu was the source of all seven women's HIV infection. The show concludes that Mr Padieu "gave Lisa HIV in 1997" and goes on to suggest, without a shred of evidence, that he had been diagnosed earlier than 2005 and knowingly infected Lisa and possibly hundreds of other women.



I'm extremely disappointed in Dr Metzker for totally misrepresenting what phlyogenetic analysis can prove. It is impossible to conclude, given the many limitations of phylogenetic analysis, that Mr Padieu infected Lisa in 1997. It is, in fact, just as possible that Lisa infected Mr Padieu.

I don't expect 20/20 to explain the science (in fact, I expect them to get it wrong), but I do expect Dr Metzker, who is (was?) considered to be a respected scientist, to be less definitive about his conclusions. Maybe Dr Metzker would like to explain how he could be so sure - it would be very helpful to know if he has developed new, as yet unknown, techniques in phylogenetic analysis that can definitively pinpoint timing and direction of transmission.

France: Appeal court upholds three year sentence for HIV transmission

The Court of Appeal in Aix-en-Provence has upheld the three year sentence handed down by a Marseille Criminal Court in June 2008 to a man who pleaded guilty to "administering a harmful substance causing disability or permanent disability" after having been accused of sexually transmitting HIV without disclosing his status to his former girlfriend.

Although the story was covered by several newspapers in France, none make it clear why there was an appeal when the man had pleaded guilty. His original sentence - three years, with a minimum of two years in prison - was upheld during the appeal but he now must serve all three years. If the appeal was called by the man's lawyer, then it has backfired somewhat.

However, one of the articles, from AFP, mentions that the complainant

avait déposé plainte pour "tentative d'homicide involontaire" et "mise en danger d'autrui" (had filed a complaint for "attempted manslaughter" and "endangering others.")

Perhaps it was the prosecution who had appealed. According to the report in Le Figaro

Le procureur avait lancé au mis en cause, lors du premier procès: "Vous êtes un salaud!". (The prosecutor had launched into the respondant at the first trial: "You are a bastard!".)

The report with the most details of the case appeared in Le Provence. Highlights in French (with rough English translation) below.

Gilles, 42 ans, ancien toxicomane, et Laurence, 41ans, avaient entretenu, en 1998 et 1999, une relation amoureuse durant près de dix mois. (Gilles, 42, a former drug addict, and Laurence, 41, had been in relationship for almost ten months between 1998-1999).

En avril 1999, la jeune femme apprenait tout à la fois sa contamination par le VIH et que toute la famille de son compagnon savait qu'il était séropositif depuis six ans et suivait un traitement. (In April 1999, the young woman learned she had been infected with HIV and that the entire family of her partner knew he had HIV for six years and was receiving treatment.)

Avant d'abandonner l'usage des préservatifs, Laurence avait pourtant demandé à son ami s'il avait récemment pratiqué un test VIH. Ce à quoi, il avait répondu par l'affirmative et qu'il n'y avait aucun problème. (Before abandoning condoms, Laurence had asked her partner if he had recently performed an HIV test. To which he replied in the affirmative and that there was no problem.)

Évoquant des regrets, présentant des excuses, Gilles a expliqué son attitude par son "inconscience" , par le fait qu'il traversait à l'époque "une période critique" . "Je me cachais la maladie à moi-même, je n'arrivais pas à me l'avouer, à y faire face". (Full of regret, apologizing, Gilles explained his attitude by his "unconscious" by the fact that he was crossing at the time a "critical period". "I hid the disease from myself, I couldn't admit it to myself in order to cope.")

Cependant, l'instruction avait démontré qu'il se soignait en prenant ses trithérapies au domicile de sa mère. "Il a cru qu'il suffisait de ne plus penser à la maladie pour qu'elle n'existe plus" , avait expliqué son défenseur Me Gérard Bismuth, selon lequel on pouvait le considérer comme "responsable mais pas coupable". (However, investigation showed that he had treated himself by taking his triple therapies in the home of his mother. "He thought it sufficient to stop thinking about the disease so that it no longer exists," explained his defender Gérard Bismuth, that it could be considered "responsible but not guilty". )

À la barre, Gilles avait répété ne jamais avoir eu l'intention de transmettre le virus. "Je ne voulais pas nuire à la santé de Laurence, je regrette d'avoir été imprudent". (At the bar, Gilles repeated that never intended to transmit the virus. "I did not want to harm the health of Laurence, I regret having been imprudent.)

[...]

Pour Jean-Pierre Binon, avocat de la victime, "la peine est sévère mais semble-t-il juste. Elle reconnaît Laurence comme une victime ce qui va lui permettre de passer à autre chose, de refaire sa vie en espérant qu'il n'y ait pas de maladies opportunistes, de cancers dont le risque est augmenté par la maladie. C'est sans aucun sentiment de vengeance qu'elle a agi et qu'elle tourne aujourd'hui la page judiciaire". (Jean-Pierre Binon, the victim's lawyer [says], "the punishment is severe but seems right. It recognises Laurence as a victim which will enable her to move on, to rebuild her life in the hope that there are no opportunistic diseases or cancers whose risk is increased by the disease. This is not been about revenge and now the legal battle is over.")