US: Lambda Legal Appeals Conviction of HIV-Positive Man (Press Release)

Lambda Legal Appeals Conviction of HIV-Positive Man

"This conviction cannot stand because someone who engages in safe sex is not guilty of criminal transmission of HIV."

(Des Moines, IA, June 14, 2012) - Today Lambda Legal filed an appeal on a petition for post-conviction relief in the Iowa Supreme Court on behalf of an HIV-positive Iowa man, Nick Rhoades. Rhoades was sentenced to 25 years in prison and lifetime registration as a sex offender after having a one-time sexual encounter with another man during which they used a condom.

"The law only applies to those who intend to expose others to HIV," said Christopher Clark, Senior Staff Attorney for Lambda Legal. "This conviction cannot stand because someone who engages in safe sex is not guilty of criminal transmission of HIV.  Nick's use of a condom clearly indicates that he was protecting his sexual partner from exposure."

In June 2008, Rhoades had a one-time sexual encounter with Adam Plendl during which they used a condom. Several days later, Plendl was told by a friend that Rhoades might be HIV-positive, and he contacted the police. The police arrested Rhoades in September 2008, and on the advice of his counsel, he pled guilty. Despite the fact that a condom was used and Mr. Plendl did not contract HIV, Rhoades was convicted of intentionally exposing Plendl to HIV. He received the maximum sentence: 25 years in prison and lifetime registration as a sex offender. Several months later, the court suspended his prison sentence, and he was placed on supervised probation for five years. On March 15, 2010, Rhoades filed an Application for Post-Conviction Relief, arguing that he had received ineffective assistance from his counsel who advised him to plead guilty.  In December 2011, the court denied the application. Lambda Legal is representing Mr. Rhoades in his appeal to the Iowa Supreme Court.

"To think that for the rest of my life I'll be branded as a felon and sex-offender, all because of a one-time safe sex encounter where no HIV was transmitted, is unimaginable," said Nick Rhoades.

Thirty-nine states have HIV-specific criminal statutes or have brought HIV-related criminal charges resulting in more than 80 prosecutions in the United States in the past two years alone. Among other things, HIV criminalization perpetuates the many myths and misconceptions that fuel other types of discrimination against people living with HIV. It sends an inaccurate message regarding prevention responsibility, creates a disincentive to getting tested, and may actually discourage disclosure of HIV status.

"Criminal laws, like the one in Iowa, unjustly target people living with HIV and subject them to unwarranted prosecution and punishment," said Scott Schoettes, HIV Project Director for Lambda Legal. "By representing people like Nick Rhoades, we are doing what we can to ensure these outdated and unnecessary laws are not abusively misused against people whose conduct is not actually prohibited under them."

The case is Nick Rhoades v. State of Iowa, read the brief here: http://www.lambdalegal.org/in-court/legal-docs/rhoades_ia_20120613_proof-brief-of-applicant-appellant-and-request-for-oral-argument

US: Positive Justice Project Watching NY Court of Appeals on “Deadly Saliva” Case

Today, the New York Court of Appeals will hear the case of David Plunkett who was convicted for aggravated assault after allegedly biting a police officer during his 2006 arrest.  The case rests on whether the saliva of someone with HIV can be considered a “dangerous instrument” under the law.

Lambda Legal filed a court brief earlier this week arguing that upholding Plunkett's conviction would further stigmatise people living with HIV.

"Clearly, the trial court here erroneously believed that HIV could be transmitted by saliva," the Lambda Legal brief reads. (Read more about the case and the entire amicus brief at Lambda Legal's blog.)

The Positive Justice Project today released a strongly worded press release highlighting that “it’s time that courts rely on science rather than decades-old notions of HIV.”  The entire release is below.

Let's hope science wins out over stigma this time around.

New York, April 26, 2012 – Legal and public health experts are speaking out as the New York Court of Appeals, the highest court in New York, today reviews a case concerning the 2006 conviction of David Plunkett, an HIV-positive man, for aggravated assault for biting a police officer. The state prosecutor argued that Plunkett used his saliva as a “dangerous instrument” when he allegedly bit a police officer during an altercation, for which he is serving a 10-year prison term.

Medical and public health experts long-ago dismissed the risk of HIV transmission through spitting or biting as near-zero, too small even to be measured.

“It is virtually impossible for HIV to be transmitted through biting,” explained Oscar Mairena, Senior Associate for Viral Hepatitis / Policy and Legislative Affairs at the National Alliance of State and Territorial AIDS Directors (NASTAD). “According to the Centers for Disease Control and Prevention (CDC), in order for there to exist even a remote possibility of transmission from a bite, there would need to be severe trauma with extensive tissue tearing and damage. What occurred in this case – and in the vast majority of HIV criminal cases that involve biting – bears no resemblance to that description.”

The Plunkett case is one of hundreds across the country where HIV-positive individuals face criminal charges and long sentences on the basis of their HIV status for no-risk conduct and consensual adult sex. Members of the Positive Justice Project, a national group challenging the medical, legal and ethical support for such laws, object to the gross scientific mischaracterizations reflected in HIV-specific criminal laws and prosecutions as “flying in the face of national efforts to get people with HIV tested and into treatment.”

“This type of case reflects widespread ignorance about the routes and actual risks of HIV transmission,” said Beirne Roose-Snyder, Managing Attorney at the Center for HIV Law and Policy (CHLP). “Persistent misinformation about how HIV is transmitted, and what it means to have HIV in 2012, is a major cause of these laws and can create a major barrier to convincing people that it is safe and necessary to get tested.

Dr. Jeff Birnbaum, Program Director of the Health and Education Alternatives for Teens (HEAT) Program and the Family, Adolescent and Children’s Experience at SUNY (FACES) Network added, “I have to battle this type of stigma with the young people I treat all the time. This kind of case just makes my job harder. It’s time that courts rely on science rather than decades-old notions of HIV.”
 
Dozens of U.S states and territories have laws that criminalize HIV non-disclosure and “exposure,” such as through spitting or biting. Sentences imposed on people convicted of HIV-specific offenses have ranged as high as 50 years, with many getting decades-long sentences despite lack of evidence that HIV exposure, let alone transmission, even occurred. A growing number of defendants are also being required to register as sex offenders.  

In New York, prosecutors have used the general criminal law to pursue people with HIV charged with HIV transmission or exposure, resulting in long prison terms despite a lack of proof that the individual charged even was the source of a partner’s infection. 

“Each time there is a case like this that relies on ignorance about the nature of HIV, the public gets the message that people with HIV are highly infectious and out to hurt people,” said Michelle Lopez, community advocate and a woman living with HIV.  “That message is cruel and counter-productive.”

Susan Rodriguez, also HIV-positive and Founding Director of Sisterhood Mobilized for AIDS/HIV Research & Treatment (SMART), an educational and advocacy organization for women and youth living with HIV, added, “Women and young people living with HIV pass through these doors all the time with their heads hanging down, afraid of what people will think of them because they’re positive.  It can take a long time for some to believe that they have the right to hold their heads high, because they have a virus, not a character defect or a loaded gun. Telling people to get tested on one hand, and then turning around and treating them like felons?  Do they really think that telling people who test positive that they are dangerous will encourage others to get tested, let alone to disclose their status to someone who can get them thrown in jail?  Be real.”

Canada: (UPDATE with documents) Montreal woman prosecuted in revenge, sentenced to a year in the community, acquitted on appeal

Update: April 28 2011
In December 2010, the Court of Appeal acquitted the Montreal woman known as D.C. of the charges based on the fact that her viral load was undetectable at the time of single alleged one-off unprotected encounter, and therefore she did not pose "a significant risk of serious harm" to her ex-partner.

Thanks to a colleague in Canada, I now have the (unofficial) English translation of the full text of the judgement, highlights of which are below.  The full text can be downloaded here.

 [103]    The test is twofold: the significance of the risk, and the seriousness of the harm.
[104]    At what level is the risk sufficiently "significant" and the harm sufficiently "serious" to characterize a particular conduct as criminal?
[105]    In the case of HIV, the seriousness of the harm is undisputed. HIV infection remains a serious one, [translation] "potentially fatal", according to Dr. Routy, regardless of the brilliant advances made by medicine in recent decades. According to current medical data, HIV infection is irreversible. The drugs developed to fight this disease are efficient, but they come with significant side effects and the challenge of striking a balance between the ability to control the virus and the ability of the patient to tolerate the medication remains.
[106]    In Mabior, in paragraph 64, Steel J.A. wrote:
64     Nonetheless, I do not think it can be disputed that being infected with HIV subjects an individual to serious bodily harm. Although no longer necessarily fatal if treated medically, HIV is an infection that cannot be cured at this time and is a lifelong, chronic infection. For those who become infected, it is a life-altering disease, both physically and emotionally. Individuals must take medications every day, and the condition is potentially lethal if they do not have access to treatment or fail to take the medications. Even with treatment, HIV infection can still lead to devastating illnesses. Moreover, the emotional and psychological impact of dealing with such a disease is, no doubt, overwhelming. In their factums, both the accused and the intervener acknowledged that acquiring HIV constitutes serious bodily harm.
[107]    I share her opinion.
[108]    The significance of the risk is a more difficult question to solve. At which point can one say that the risk is "significant"? 1 in 50,000, 1 in 10.000, 1 in 1000, 1 in 100, 1 in 10? The complete absence of risk is certainly not the test that Cuerrier intended us to apply.
[109]    The argument claiming that, in light of the seriousness of the harm associated with HIV, any risk of transmission is "significant" cannot be accepted without distorting the test.
[110]    For the failure by HIV-positive individuals to disclose their condition to partners to be sanctioned by criminal law, the risk of transmitting the virus must be significant.
[111]    In Mabior, in paragraphs 68 and 69, Steel J.A. wrote:
68     I agree that the nature of the harm can affect the determination of what is considered to be a significant risk. As the magnitude of the harm goes up, the threshold of probability that will be considered significant goes down. However, to have required a complete elimination of risk rather than a significant risk was an error in law.
69     So one must determine what constitutes a "significant risk" of transmission in any particular case.  ...
[112]    I agree. Each case must be assessed by the light of its own circumstances.
[113]    Again in Mabior, in paragraph 113, Steel J.A. wrote the following on the subject:
113     Consequently, no comprehensive statement can be made about the impact of low viral loads on the question of risk. Each case will depend on the facts regarding the particular accused, and each case will depend on the state of the medical evidence at the time and the manner in which it is presented in that particular case.
[114]    Once again, I agree.
[115]    In the present case, according to the evidence on the record, the viral load was undetectable, and remained so for the whole period of time identified in the indictments, that is, June to August of 2000. At the time, the risk of transmitting HIV during unprotected sexual intercourse was 1 in 10,000. Without being zero, the risk was, according to Dr. Klein, [translation] "very weak, very minimal", or, according to Dr. Routy, [translation] "very, very low".
[116]    Also, we must not lose sight of the fact that in this particular case, unprotected sexual intercourse only occurred once before the complainant was informed of the appellant's HIV-positive status.
[117]    In this context, I believe that the fact that the appellant did not disclose that she was HIV-positive did not expose the complainant to a "significant risk of serious harm" within the meaning of Cuerrier.
[118]    The words used by both experts to quantify the risk, that is, [translation] "very weak", [translation] "very minimal", and [translation] "very, very low", are incompatible with the existence of any significant risk whatsoever.
[119]    With respect for the trial judge, I believe the Crown did not establish that the complainant's consent to unprotected sexual intercourse, prior to being informed of the appellant's HIV-positive status, was vitiated by fraud.
[120]    Consequently, there was no sexual assault and, therefore, no aggravated assault.
[121]    In Mabior, Steel J.A. concluded her reasons by saying that she understood that for the complainants, any risk of being infected was too much risk, and that they would have wanted to know prior to consenting to sexual intercourse. She adds that this point of view is shared by many, at least from an ethical or moral standpoint, but that, for the time being, this is not the test that the judiciary must apply. As the test was conceived at a time when the fight against HIV was in its infancy, Steel J.A. alluded to the possibility that the Supreme Court might want to revisit the test of "significant risk of serious harm" in order to dispel any inherent uncertainty. I add my voice to hers and note that in light of its numerous social, ethical, and moral ramifications, the initiative of revisiting the entire notion of transmission risks for serious infectious diseases, in the context of Canadian criminal law, should be the responsibility of Parliament.
[122]    For these reasons, I would allow the appeal, set aside the judgment under appeal, and acquit the appellant of the two charges brought against her.

This is not the end of the story, however.

The Crown has sought leave to appeal and the case is likely to be heard in the Supreme Court later this year or early next year.

Along with the much more complex Mabior case, who was also partially acquitted on appeal due to his using a condom or due to his undetectable viral load when not using a condom and which is also headed for the Supreme Court, these two cases will revisit the 1998 Cuerrier decision and may establish new tests for "significant risk of serious harm" as it relates to non-disclosure of HIV status prior to sex.

Original post: July 15 2008
The Montreal woman who was found guilty of HIV exposure in May, has been sentenced to a year to be served in the community. The woman, who was only prosecuted in revenge for reporting her (now ex) partner to the police for being violent against her and her 18 year-old son, was so ill that the judge could not imprison her.

I have already commented on this tragic case in my previous posting, but what I will say here is that judging from the comments on the CBC's website, where the story was reported, I am very worried about the state of public opinion in Canada.

Although a few people pointed out the real issue – that she was victimised by Canada's criminal justice system for having a law that allows disgruntled exes to make a complaint about a 'crime' that they had no problem with until their feelings changed towards to their ex-partner – many said the law was anti-male because many men, including Canadian football player Trevis Smith – have been jailed for much longer for 'similar crimes'.

Others have gone further, calling her a potential murderer, or for the names of "these carriers of HIV" to be made public "for the good of the society", highlighting the fact that the criminalisation of HIV exposure and transmission, and media reports about the trials, serve as lightning-rods for public opinion about people living with HIV. In the minds of so many Canadians, the woman from Montreal – and 'people like her' – are responsible for the HIV epidemic in their country.

The truth couldn't be further from this myth. An incredibly important and robust study from Quebec published last year found most HIV transmission comes from the undiagnosed; half of it during the first six months of infection. It is undiagnosed people with HIV, rather than those who are diagnosed, who are primarily exposing and transmitting HIV to their sexual partners.

Not only is it undiagnosed HIV that is perpetuating the HIV epidemic; diagnosed people on successful treatment are now considered to be sexually non-infectious by some experts, and the policy of treating people to prevent transmission is now a reality in British Columbia.

How can one arm of policy - Canada's criminal justice system - be so far behind the thinking of another arm? Getting people tested and on treatment is the most effective way of mitigating the epidemic. Laws criminalising individuals may create a moral tone, or exact revenge in a victim/perpertrator paradigm sort of way, but it does nothing to mitigate the HIV epidemic, and may actually make things a lot worse.

And although these trials create the illusion that HIV-positive people are primarily vectors of transmission, and the media reports of the trials can be innacurate and stigmatising, the rise of Web 2.0, with its interactive comments (even those which are moderated, such as the CBC's), adds insult to injury.

On the other hand, perhaps reading these comments is the best way of gauging public opinion. even though the judge in the forthcoming Johnson Aziga murder trial doesn't think that ordinary Canadians have "fears, assumptions and prejudices about HIV, which may feed into [their] judgments and assumptions about [people] accused [of HIV exposure and transmission] and [their] ability to assess the evidence in a calm rational fashion."

I can't help but wonder whether the dozen or so prosecutions in Canada this year have adversely influenced public opinion and that the judge is wrong.

1 year sentence for HIV-positive woman guilty of assault
Sentence to be served in community because of woman's health, court says
CBC
Wednesday, July 9, 2008

A Quebec woman living with AIDS has been given a one-year sentence, to be served in the community, for hiding her HIV status from her former boyfriend.
Quebec Judge Marc Bison handed down the sentence on Tuesday, after the woman was found guilty of aggravated assault against her ex-boyfriend for failing to tell him she was HIV-positive when the two started courting.
The woman acted irresponsibly and committed a serious crime by depriving her ex-lover of the right to decide whether he wanted to have sex with her despite her status, Bison said at the Longueuil courthouse.
Anyone with a condition as serious as HIV has a legal duty to inform his or her partner, because the virus is not like a common cold, he said.
The sentence would normally be served in prison, but because of her fragile health, she will serve it in the community, the judge said. The woman is in a treatment centre waiting for experimental drugs.
A publication ban in the case prevents the man and woman from being named, but they can be identified by their initials.
When the couple first started dating in 2000, D.C testified she initially withheld her HIV status from J.L.P., but after three months told him she was infected, the court was told.
J.L.P. decided to stay in the relationship. D.C. testified in court they used condoms from the beginning of the relationship, but the court determined the couple had unprotected sex at least one time.
HIV complaint made after assault charge laid
The couple broke up five years later, after the man was charged with assault following the woman's complaints of domestic abuse.
While his case was pending, J.L.P. alerted police about D.C.'s failure to disclose her HIV status, and she was charged with aggravated assault. J.L.P. was never infected with the virus.
This winter, the Quebec court found J.L.P. guilty of assaulting D.C. and her 18-year old son, but was eventually given an absolute discharge with no criminal record.
The Quebec Coalition of AIDS organizations was disappointed by the case's outcome.
The onus was on J.L.P. to protect himself and practise safe sex, said spokesman Ken Monteith.
The situation would have been different if D.C. had repeatedly had unprotected sex with J.L.P. without telling him, he said.
D.C. has been HIV positive since 1991. She contracted the human immunodeficiency virus from her ex-husband.

Canada: British Columbia man guilty again following retrial (update)

Update August 24th 2010


Adrian Nduwayo, has been found guilty again of five charges of aggravated sexual assault involving five women, three of whom subsequently tested HIV-positive, following a retrial at the BC Supreme Court.

He was oringally guilty of the same charges, plus one of attempted aggravated sexual assault and one of sexual assault in 2005 and sentenced in 2006 to 15 years in prison.  This time, he was acquitted of those two other charges.

Details of the reasons for the original appeal are in my original post, below.

According to the report in Vancouver's mid-market tabloid, The Province, the retrial hinged on the issue of lack of consent due to non-disclosure.

Justice James Williams said that, although the sexual relations were "ostensibly consensual," that consent was taken away when Nduwayo failed to tell the women that he was HIV positive. "The issue of consent is not as simple as yes or no," Williams said. "It's more complicated than that." In the five cases where Nduwayo was convicted, Williams said he believed that each woman would not have had sex with Nduwayo if they had known about his HIV. He was also satisfied that their lives were endangered by Nduwayo's actions.

In the reports of the original trial, below, Mr Nduwayo testified he always used condoms and didn't need to disclose. The complainants said that he didn't always use condoms. It is unclear whether Justice Williams considered the issue of condom use as reducing the risk of HIV transmission to below Cuerrier's threshold 'significant risk'. If not, there's may well be further confusion regarding condom use and obligations to disclose in Canada that can only be satisfied with the production of police and prosecutorial guidance.

Sentencing submissions will take place on September 10.


Original post June 23rd 2008

An HIV-positive British Columbia man who was found guilty in 2005 on five counts of aggravated sexual assault (for HIV exposure), one of attempted aggravated sexual assault and one of sexual assault, and sentenced in 2006 to 15 years in prison, has won an appeal against his original trial and will be retried.

According to the report in the Bugle-Observer, Adrian Nduwayo's lawyer successfully argued that the jury was not properly instructed to consider each count separately and not to use evidence from one count when deciding guilt on others, compromising his right to a fair trial.

I have also reprinted a couple of articles published at the time of Mr Nduwayo's original guilty verdict and sentencing, for background, below. Interestingly, although three of the complainants subsequently tested HIV-positive, Mr Nduwayo was not tried for criminal HIV transmission - and it's not clear from the reports why that was the case.

Appeal court orders new trial for HIV-positive B.C. man convicted of sex assaults
Wednesday June 18th, 2008
THE CANADIAN PRESS

VANCOUVER - The B.C. Court of Appeal has ordered a new trial for an HIV-positive man who was convicted of sexually assaulting several women for having unprotected sex with them.
Adrian Nduwayo was given a 15-year sentence in 2005 for five counts of aggravated sexual assault, one of attempted aggravated sexual assault and one of sexual assault.
The incidents involved seven different women who said Nduwayo had sex with them without telling them he was HIV-positive and without a condom, while he insisted he did use protection.
But Nduwayo appealed his convictions, arguing that the jury was not properly instructed to consider each count separately and not use evidence from one count when deciding guilt on others.
The court of appeal agreed, saying the trial judge's charge to the jury didn't include adequate cautions on that issue.
The court says the fairness of the trail was compromised and has ordered a new trial.

Jury finds B.C. man guilty of spreading HIV
Wed. Dec. 14 2005

CTV.ca News Staff

An HIV-positive B.C. man was found guilty Tuesday night of committing sex crimes for having unprotected sex with women to whom he did not reveal his condition.
A jury in Westminster, B.C. convicted Adrien Nduwayo, 36, of five counts of aggravated sexual assault, one count of attempted aggravated sexual assault and one count of sexual assault.
"The message this sends I think is when you are HIV-positive you have a positive duty to disclose that fact to any perspective partners that you have," Crown counsel Andrew MacDonald said, minutes after the verdict was released.
He said that all of the women who testified against their former lover showed "tremendous amounts of courage and fortitude."
The charges relate to Nduwayo's failure to disclose his virus and engage in unprotected sex with seven women between 2000 and 2003.
Three of those women now have HIV, the virus that causes AIDS.
During the trial, court heard that Nduwayo carried on affairs, and slept with more than one woman at the same time.
Nduwayo contends he always wore condoms to protect his sexual partners and that he didn't have a legal obligation to disclose his condition to his partners.
But some of his former lovers said they had to insist that he wear them -- and that even then he often did not.
Defence lawyer Paul McMurray said outside the court that Nduwayo's defence was that all of his sexual partners in question were willing partners and that the fact he used a condom was sufficient in law to maintain their consent.
Nduwayo has said he didn't tell some of his lovers that he was HIV-positive because they didn't ask.
Some of them found out about Nduwayo's condition when they saw news reports that the police were looking for him for allegedly spreading the virus, court heard.
"I think we're dealing with an area where there was, and is, some uncertainty," McMurray said outside court.
"Everybody I think accepts that you're supposed to disclose and you're supposed to wear condoms but this falls short of that and that's the difficulty here."
No date has been set for a sentencing hearing.

B.C. man sentenced to 15 years for spreading HIV

Fri. Mar. 3 2006

CTV.ca News Staff

An HIV-positive man was sentenced to 15 years in prison for having unprotected sex with seven women to whom he did not reveal his condition.
Before he was sentenced in B.C. Supreme Court in New Westminster, Nduwayo was permitted to address the court.
When he stood up, he went on a lengthy tirade -- speaking directly to his accusers and reducing some to tears.
"I feel very bad for these girlfriends who were infected. I did not mean to infect them," Nduwayo said.
Later, he added: "One day I will prove my innocence."
Justice John Truscott sentenced Nduwayo to 15 years after deducting two years for time already served.
In December, Nduwayo was found guilty of five counts of aggravated sexual assault, one count of attempted aggravated sexual assault and one count of sexual assault.
"The combined effect of the number of counts that we were dealing with in this case, resulted in the sentence being longer than any others that have been previously been imposed," Crown counsel Andrew MacDonald told CTV Vancouver.
Nduwayo was accused of deceiving sexual partners about his HIV status and deliberately engaging in unprotected sex between 2000 and 2003. Three of those women now have HIV, the virus that causes AIDS.
"Clearly the complainants who have been infected with the HIV virus have had a serious and devastating toll taken on their lives," MacDonald said.
During the trial, court heard that Nduwayo carried on affairs, and slept with more than one woman at the same time.
Nduwayo contends he always wore condoms to protect his sexual partners and that he didn't have a legal obligation to disclose his condition to his partners.
But some of his former lovers said they had to insist that he wear them -- and that even then he often did not.
Meanwhile, some AIDS groups argue that cases like Nduwayo's should not be criminalized.
"We feel that criminalization has the potential to deter people from testing," said Wayne Campbell, with the British Columbia Persons with AIDS Society. "We encourage people to get tested, every sexually active adult, should be tested every six months."
With a report from CTV Vancouver's Michele Brunoro

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.")

US: Pregnant woman whose sentenced was doubled 'to protect unborn child' wins appeal

The HIV-positive pregnant woman from Cameroon whose sentence was doubled to 'protect her unborn child' and which caused a furore in May, was yesterday resentenced to 114 days, or time served, for having a fake Social Security card and work permit.

The woman was freed on bail in June and won her expedited appeal in July.

According to the Bangor Daily News, the 28 year-old

wept Tuesday as U.S. District Judge John Woodcock imposed the sentence her defense attorney and a federal prosecutor had recommended jointly on May 14 at her original sentencing in federal court in Bangor. “I just want to say that a lot of people who have gone through a lot for me are here today,” she told the judge Tuesday. “I am grateful for their time and support. I want to say, God bless America.” [...] Alexa Kolbi-Molinas, a staff attorney with the American Civil Liberties Union Foundation in New York City, attended the resentencing in Portland. She criticized Woodcock’s original sentence outside the courthouse. “It was inappropriate for our client to have received a long sentence solely because she was HIV-positive and pregnant,” said Kolbi-Molinas, a staff attorney with the ACLUF’s Reproductive Freedom Project. “So we’re very pleased with the result. “The widespread support in favor of a reversal of the sentence shows that we are no longer a society which incarcerates the sick and the poor because they are sick and poor,” she said.

The woman is due to give birth later this month.

Switzerland: Federal Court confirms Geneva HIV exposure acquittal, but does not mention viral load (updated)

UPDATE July 8th 2009

The Federal Court has now confirmed the recent HIV exposure acquital in Geneva, but shied away from explicitly discussing the link between an undetectable viral load and risk of transmission. In effect: they lacked the courage to change HIV exposure law throughout Switzerland.

According to AIDS Geneva's Deborah Glejser, the Federal Court upheld the Geneva court's finding that HIV exposure charges were no longer possible because the two female complainants were not exposed to HIV, but they did not actually discuss why this was the case (i.e. because the defendent was on effective treatment).

A brief report (in French) on 20minutes online, notes that the Federal Court emphasized that the women were not infected with HIV during unprotected sex and accordingly are not considered by the criminal courts to be victims. They could have sued for psychological harm in the civil court, but didn't, and so "in the absence of such a request, their action can only be ruled inadmissible."

Deborah Glejser tells me that she is extremely disappointed in the Federal Court since this was "a great opportunity missed." Although HIV exposure remains no crime in Geneva, it will now be down to individual cases – and prosecutors as forward-thinking as Yves Bertossa – to change the law in Switzerland's 25 other cantons.

ORIGINAL POSTING July 1st 2009

Video and reports (in French) are now available following the May 18th meeting convened by Group SIDA Geneve (AIDS Geneva) featuring a discussion between Professor Pietro Vernazza, President of the Swiss Federal AIDS Commission (which produced the January 2008 'Swiss statement' on infectiousness) and Yves Bertossa, Geneva's deputy public prosecutor, (who pushed for the recent HIV exposure acquital in Geneva), moderated by AIDS Geneva's Deborah Glejser.

The meeting highlighted the importance of the Geneva court's ruling that an HIV-positive person on successful treatment, with an undetectable viral load, and no other STI, could not possibly be guilty of exposing another person to HIV if they had not disclosed their status before having unprotected sex.

The Geneva judgement has now been appealed by the complainant which means it will now be heard by the Federal Court, Switzerland's highest court. Mr Bertossa appeared confident that the Federal Court would confirm the acquittal, making the ruling relevant throughout Switzerland (and possibly providing more legal ammunition for other jurisdictions).

Highlights of the meeting are available to watch on the AIDS Geneva blog. The meeting also received mainstream coverage, including a report in L'Hebdo (Switzerland's answer to Time or Newsweek) and in the main Geneva broadsheet, L'evenement.

US: HIV exposure conviction overturned by Kansas Supreme Court

On Friday, the Kansas Supreme Court overturned the HIV exposure conviction of Robert Richardson in Lyon county because the case ended up being a discussion of infectiousness, rather than one where the prosecution provided evidence that proved intent - which would have simply required testimony from a complainant about nondisclosure and non condom use.

Richardson's case is somewhat complicated by the fact that he had previously been found guilty, in another county, of four counts of HIV exposure involving three women. Although originally sentenced to 32 months in prison, the Lawrence Journal-World reports that he "was later re-sentenced to two years probation" and that he was "released from supervision on the Douglas County cases in February."

So this appeal was about whether Richardson should serve time for HIV exposure in Lyon county. The Emporia Gazette reports that:

Richardson's defense had said that the prosecution had failed to establish that HIV is always a life-threatening disease; that he had actually exposed the victims because of lack of evidence that bodily fluids were exchanged during intercourse; or that he had the specific intent to expose his sexual partners to HIV.

The Emporia Gazette article then quotes Kansas Supreme Court Judge Lee A. Johnson who exaplains how and why he made the decision.

The trial, which took place without a jury in front of Judge Jeffry Larson,

"consisted entirely of testimony from two medical doctors, Dr. Christopher Penn for the prosecution and Dr. Clifton Jones for the defense."

“The testimony of both doctors concentrated on whether HIV may be transmitted when a viral load level is low or undetectable and the effect of the virus on an infected individual’s lifestyle."

Richardson’s “viral load” test in February 2005 had revealed 11,700 parts per millileter, considered a “medium level of the virus.” A new medication was prescribed and Richard’s viral load test in November 2005, after the incidents of sexual intercourse, had dropped significantly.

“The result was a viral load level of less than the minimum which could be measured, i.e., less than 50 parts per milliliter,” Johnson wrote.

This is interesting, given what we now know to be the Swiss statement. However, being somewhat ahead of their time, these arguments failed in the original trial, but what the State failed to do in this trial, explains Judge Johnson, was prove that Richardson had intended to expose the two female complainants to HIV.

Johnson wrote that in addition to the general intent requirement that almost always is in place, some crimes require an additional, specific intent. In this case, the law states it is unlawful for someone who knows he or she is infected with a life-threatening communicable disease to knowingly “engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life threatening communicable disease.”

The state Supreme Court found that the statute creates a “specific intent crime. The State was required to prove that Richardson, knowing he was infected with HIV, intentionally engaged in sexual intercourse ... with the specific intent to expose them to HIV.”

Johnson wrote that the state presented evidence at the preliminary hearing from the two women involved with Richardson to establish that Richardson had HIV when they had sex with him, that he did not use a condom, and that he had falsely represented to one of the women that he was free from sexually transmitted diseases.

“These are prime examples of proven circumstances that could support an inference that Richardson intended to expose (the women) to HIV,” Johnson wrote. “Inexplicably, the State chose not to present any of this information at trial, and those facts were not included in the parties’ stipulation.”

Johnson wrote that the evidence was insufficient to support the convictions, prompting the justices to reverse both cases.

So, although this might be good news for Richardson, it's not good news for anyone else who may be prosecuted under Kansas's HIV exposure law. All that is required for a conviction is for the complainant to testify that the defendant, knowing he (or she) was HIV-positive, did not use a condom and did not disclose (or concealed) his (or her) HIV status.

Finland: Appeal court increases Hakkarainen sentence

Aki Hakkarainen, the young Finnish man found guilty of five counts of criminal HIV transmission and 14 counts of HIV exposure in April 2008, and sentenced to ten years in prison in August 2008, will now have to serve a further two years in prison, following an appeal.

There's no explanation in the brief report in the Helsinki Times who launched the appeal but since the prosecutor had asked for a minimum of twelve years, it seems that it probably wasn't Hakkarainen himself.

Canada: Manitoba Appeal Court rejects Zambian migrant's appeal

An African migrant sentenced last August to eight years in prison for two counts of HIV exposure has lost his appeal for a new trial in the Manitoba Appeal Court. The province's highest court also refused to hear an appeal of his eight-year prison sentence, according to a brief report in the Winnipeg Free Press.

He had been given double credit for the 34 months he has already served in pre-sentence custody, reducing his remaining sentence to 28 months. He now faces automatic deportation back to Zambia once his jail time is complete.

Canada: Man sues Canadian government over lack of pre-2001 mandatory HIV testing (updated)

A Toronto man is suing the Canadian government for CAD$33 million (£18.5m) because it did not bring in mandatory HIV testing of immigrants until 2001.

Percy Whiteman is the former husband of Thai migrant, Suwalee Iamkhong, who was found guilty of transmitting the virus two years ago and is now fighting a deportation order.

Ms Iamkhong is appealing her conviction and sentence.

Headed by Justice Stephen Goudge, the panel signalled yesterday that her conviction appeal hinges in large part on whether Iamkhong could be believed when she claimed a blood test she underwent after arriving in Canada in 1995 led her to conclude she was HIV negative.

Iamkhong testified two years ago that when her former manager told her the test showed her to be "in the clear," she thought it meant an earlier test she underwent in Hong Kong, indicating she was HIV positive, was wrong. In fact, the Canadian blood test did not look for HIV.

Now fighting to remain in Canada, she is asking for her two year sentence to reduced by one day.

Sentences of two years or more deprive offenders such as Iamkhong, a landed immigrant, of the right to appeal a deportation order on humanitarian grounds.

The court has not yet decided Ms Iamkhong's fate. One wonders how far her ex-husband will get in suing the Canadian government.

Update: June 18th. The Ontario Court of Appeal has now reduced Ms Iamkhong's sentence by a day, reports the Toronto Star.

"Insofar as the impact of the sentence on the appellant is concerned, this is a serious consideration," [Justice Harry LaForme] said. "It appears that the future prospects of the appellant can be assisted or improved by imposing a sentence of two years less a day, rather than two years. In such a situation, it is entirely in keeping with the principles and objectives of sentencing to impose the shorter sentence."

Canada: Toronto man gets a year in jail for HIV exposure after Crown appeals lenient sentence

An HIV-positive Toronto man found guilty in May of HIV exposure, has had his one year suspended sentence increased to one year in prison, following an appeal by the Crown at the Ontario Court of Appeal.

Apparently, "the sentence imposed by a Superior Court judge last May was outside the range of sentences for other HIV-positive offenders who've knowingly had unprotected sex and it failed to take into account the breach of trust."

This is one of those cases in which incarceration is the only way to express society's outrage, said Justice Eleanore Cronk, who wrote the decision.

"The respondent's non-disclosure of his HIV-positive status meant that (his girlfriend) was essentially duped, for a prolonged period, into having sexual relations with (McGregor), she said.

Interestingly, the original case failed to make the papers first time around. Article from The Toronto Star, below.

Man gets one year for concealing HIV status
Toronto Star
Dec 08, 2008
Tracey Tyler, LEGAL AFFAIRS REPORTER

A Toronto man who is HIV-positive is going to jail this week for having unprotected sex with his girlfriend.

By concealing his medical status for more than a year, Roger McGregor committed a serious breach of trust, the Ontario Court of Appeal said today in a unanimous decision.

The court set aside a 12-month conditional sentence imposed on McGregor earlier this year for aggravated sexual assault and substituted a one-year jail term.

This is one of those cases in which incarceration is the only way to express society's outrage, said Justice Eleanore Cronk, who wrote the decision.

"The respondent's non-disclosure of his HIV-positive status meant that (his girlfriend) was essentially duped, for a prolonged period, into having sexual relations with (McGregor), she said.

The court gave McGregor three days to surrender.

Public health officials had warned him he had to disclose his status before having sexual intercourse.

The victim discovered his HIV status by accident when she found a medical information sheet on his bedroom dresser. She took it to a pharmacist to find out what the medication was for.

After being told it was for treating HIV, she confronted McGregor and "an altercation ensued," Cronk said.

The couple broke up shortly afterwards and the victim so far hasn't tested HIV-positive.

Cronk said the sentence imposed by a Superior Court judge last May was outside the range of sentences for other HIV-positive offenders who've knowingly had unprotected sex and it failed to take into account the breach of trust.

Australia: No more appeals for Andree Chad Parenzee

Andree Chad Parenzee – who was found guilty in Adeleide in 2006 of three counts of endangering life, has run out appeals.

He originally appealed last year by arguing that HIV does not cause AIDS and cannot be sexually transmitted. That appeal failed spectularly, and he was sentenced to nine years in jail. He appealed again in July, but that also failed.

Now, South Australia's Court of Criminal Appeal has ruled that his most recent appeal applications were "incompetent".

Full story from The Sydney Morning Herald below.

HIV man loses appeal against conviction
AAP/Sydney Morning Herald
September 16, 2008

An HIV-positive man jailed for having unprotected sex with three Adelaide women has lost a bid to have his case reopened.

Andre Chad Parenzee, 37, had tried to appeal against his conviction after being jailed for nine years in 2007 on three counts of endangering life.

He was charged after one of his victims, a mother of two, became infected with HIV.

In a majority verdict in South Australia's Court of Criminal Appeal, Parenzee's application for an extension of time to appeal and his application for leave to appeal were both dismissed.

In a two-one judgment, the court ruled that both his applications were incompetent.

Chief Justice John Doyle said that while he would have granted leave to appeal, he would have rejected the final appeal anyway.

He said evidence from doctors who dealt with Parenzee provided a solid basis for the jury to find that he knew that by having unprotected sex he would create a real, or significant risk, of infecting a woman with HIV.

"The evidence that Mr Parenzee gave about his state of knowledge and belief was, on my own assessment, unconvincing," Justice Doyle said.

"In any event, it was certainly open to the jury to reject much of his evidence."

In his appeal, Parenzee had argued there was no quantifiable evidence at his trial to prove he was likely to be putting anyone's life in danger when he had sex, or that he knew he was doing so.

"There was no evidence Mr Parenzee was told that having unprotected sex would lead to a person's life being in danger," his lawyer Andrew Tokley said.

"Parenzee believed that if he didn't ejaculate while having unprotected sex there was no risk to his partner."

Prosecutor Martin Hinton QC said Parenzee knew about the risks of unprotected sex within weeks of his diagnosis but had failed to tell his partner.

"He said he had cancer ... she is never told he has HIV until very late."

Last year, Parenzee lost a previous bid to appeal against his conviction after unsuccessfully arguing that HIV did not exist and could not be sexually transmitted.

An application to appeal his conviction to the High Court was expected.

With time off for good behaviour, Parenzee will be eligible to be released in 2011.

Australia: Lam Kuoth's laywers appeal against 'excessive' suspended sentence

Lawyers for Lam Kuoth have lodged an appeal against his two year suspended sentence for HIV exposure, claiming it is "manifestly excessive".

Story from the Herald Sun, below, which also was printed in a later editions under the rather sarcastic headline: 'Freedom too harsh for HIV-positive man'

HIV-positive refugee appeals on 'harsh' sentence
Norrie Ross
August 22, 2008

AN HIV-positive refugee who had unprotected sex with a young woman claims his suspended jail term was too harsh.

Lam Kuoth, 29, was sentenced to two years in jail, suspended for three years, and was given a community-based order in the County Court earlier this month.

Kuoth who came to Australia from Sudan in 2006 and lives in Geelong pleaded guilty to two counts of recklessly endangering another person.

His lawyers lodged an appeal against the sentence with the Court of Appeal yesterday claiming the suspended term was "manifestly excessive".

The court will rule in the next few months if he can win permission to appeal.

Sentencing judge Paul Lacava heard that Kuoth knew of his HIV status when he twice had unprotected sex with his unwitting 24-year-old victim in April last year.

He acted in defiance of public health orders that required him to use a condom.

Kuoth also had unprotected sex with another woman but she did not want to be involved in any prosecution, the court was told.

That woman has since had his child and the child, now eight months, is not believed to be HIV-positive.

Australia: Parenzee appeals again

Andree Chad Parenzee – who was found guilty in Adeleide in 2006 of three counts of endangering life; appealed last year by arguing that HIV does not cause AIDS and cannot be sexually transmitted; and who was sentenced to nine years in jail after losing the appeal – is appealing yet again.

Last week, his lawyer applied to the Court of Criminal Appeal for permission to appeal again on mens rea grounds – that Parenzee's state of mind was that he did not think he could infect anyone with HIV.

Parenzee told his trial he used the "withdrawal method" when having sex with the women and thought that was a safe way of having sex.

"The question is whether at the end of the day that the evidence establishes or would prove to a jury beyond reasonable doubt that the accused knew that his actions were likely to lead to a particular outcome," his lawyer is quoted as saying in The Daily Telegraph.

In a widely reprinted Associated Press article, this is further elucidated:

He said the word "likely" was synonymous with more than probable and there was no quantifiable evidence at his client's trial to prove that he was putting anyone's life at risk each time he had sex.

The hearing was due to continue on Friday 18th, although no further reports have emerged so far.

Chad Paranzee did not know unprotected sex was AIDS risk
By Gavin Lower
Daily Telegraph
July 18, 2008

A MAN with HIV convicted of endangering the lives of three women by having unprotected sex with them is again trying to appeal against his convictions.

Chad Parenzee, 37, was found guilty in 2006 of three counts of endangering life and was sentenced last year to nine years in jail.

One of his victims contracted AIDS.

Parenzee has already lost two bids to appeal against his conviction by a South Australian Supreme Court jury and yesterday applied to the Court of Criminal Appeal for permission to appeal again.

His lawyer, Andrew Tokley, argued there had not been enough evidence at Parenzee's trial to convict him.

"The question is whether at the end of the day that the evidence establishes or would prove to a jury beyond reasonable doubt that the accused knew that his actions were likely to lead to a particular outcome," he said.

Mr Tokley said there was no evidence Parenzee was told that having unprotected sex would lead to a person's life being in danger.

Parenzee told his trial he used the "withdrawal method" when having sex with the women and thought that was a safe way of having sex.

Crown prosecutor Martin Hinton, QC, said Parenzee presented as a "particularly unsatisfactory witness" at his trial and that he was aware of the risks of transmitting HIV within weeks of being diagnosed.

"It was open to the jury he knew the risks he was exposing these women to," Mr Hinton said.

Parenzee's appeal also featured argument over the definition of the word "likely" in the charge.

Last year Parenzee lost a bid to appeal against his conviction, arguing HIV did not cause AIDS and could not be transmitted sexually.

The appeal was dismissed with Justice Sulan describing the argument as "implausible".

The CCA reserved its decision on the latest appeal.

HIV-positive man 'didn't know risk'
July 17, 2008
Article from: AAP

AN HIV-positive man jailed for endangering life by having unprotected sex with three woman did not know he was risking their lives, an appeals court has been told.

Chad Parenzee, 37, was convicted in 2006 and jailed until at least January 2011 on three counts of endangering life after a woman he had sex with, a mother of two, became infected with HIV.

The full court of the South Australian Court of Criminal Appeal is today hearing an application for Parenzee to appeal his conviction.

Parenzee's lawyer, Andrew Tokley, argued there was no evidence having unprotected sex was likely to endanger life.

He said the word "likely" was synonymous with more than probable and there was no quantifiable evidence at his client's trial to prove that he was putting anyone's life at risk each time he had sex.

"There was no evidence Mr Parenzee was told that having unprotected sex would lead to a person's life being in danger," Mr Tokley said.

He believed that if he withdrew while having unprotected sex there was no risk, Mr Tokley said.

The hearing continues.

US: Idaho Supreme Court upholds HIV exposure sentence

Just found this excellent blog posting from Leonard Link, originally posted on June 12th. Click here to read the complete posting.

The Idaho Supreme Court spoke unanimously yesterday, upholding what may turn into something like a life sentence to an HIV+ man convicted under I.C. sec. 39-608 of eleven counts of "transferring body fluid which may contain the human immunodeficiency virus." This draconian sentence was upheld in State of Idaho v. Mubita, 2008 Westlaw 2357703, where it appears that the acts in question presented little or no risk of HIV transmission, there is no evidence that HIV was actually transmitted, and the police learned the identity of the defendant through unauthorized disclosure of his medical records and forms he filled out at the health department in order to access HIV-related benefits.

Canada: Trevis Smith loses appeal

Trevis Smith – the professional Canadian football player found guilty on two counts of HIV exposure and imprisoned for five and a half years – has lost his appeal.

This is news all over Canada, but the most detailed report comes from the local paper in Regina, the Leader-Post.

Saskatchewan court dismisses former Roughrider Smith's appeal
by Karen Brownlee, with files from Jana G. Pruden
Thursday, May 15, 2008

REGINA -- The Saskatchewan Court of Appeal dismissed former Saskatchewan Roughrider Trevis Smith's appeal of his conviction on two counts of aggravated sexual assault.

Smith was convicted in February 2007 of having unprotected sex with two women without disclosing to them that he is HIV-positive. He filed an appeal within weeks of his conviction.

Smith's lawyer, Clemente Monterosso of Montreal, argued in the Saskatchewan Court of Appeal in late April that his client had been denied at least two rights during his trial -- the right to be presumed innocent and the right to remain silent.

However, Saskatchewan Court of Appeal Justices Gary Lane, Georgina Jackson and Darla Hunter said in their decision released on Wednesday morning that it was appropriate that the trial judge found Smith guilty.

"We are unable to see any basis for interfering with the trial judge's conclusion," wrote Lane.

The decision also said it was "open to the trial judge to disbelieve Smith and to find the defence evidence did not raise a reasonable doubt."

The three concurred they were satisfied that no error was made when the trial judge, Provincial Court Judge Kenn Bellerose, believed the two complainants and convicted Smith based on their evidence.

Smith's testimony during his trial differed greatly from the complainants.

Smith testified that he had not had sex with one of the complainants after learning of his HIV status. Bellerose didn't believe him.

In Smith's appeal, it was argued that the judge needed to listen to Smith and consider his testimony as part of the total evidence presented. Jackson, Lane and Hunter said in their decision that Bellerose had considered all the evidence and concluded that he didn't believe Smith. The evidence supports that conclusion, they state.

As for the second complainant, Smith said he had protected sex with her, while she said protection wasn't used.

Again in Smith's appeal, it was argued that Bellerose held Smith's testimony to a different standard than that of the complainant. This in part violated Smith's right to silence, it was argued, since Bellerose relied on evidence from a public health nurse and the police to assess Smith's credibility.

Jackson, Lane and Hunter said again that Bellerose reviewed all the evidence in deciding Smith's credibility on this point. Bellerose also explained extensively why he believed the complainant, the three state.

Monterosso has said that Smith is willing to take the case to the Supreme Court of Canada.

Smith is serving a six-year sentence at the Prince Albert Penitentiary. He is more than a year into his sentence and will be eligible for parole in February. He can apply for day parole this fall.

Canada: Judge in Trevis Smith case was prejudiced claims appeal

The lawyer for Trevis Smith – the professional Canadian football linebacker sentenced to five and half years' jail in February 2007 for HIV exposure (aggravated sexual assault) – is appealing for a new trial in the Saskatchewan Court of Appeal. The main legal argument is focused on Smith's right to be presumed innocent until proven guilty, claiming that Judge Kenn Bellerose was prejudiced.

Full story from The Canadian Press below.

Lawyer for HIV-positive former CFLer seeks new trial on sex assault charge

24th April 2008

REGINA — The judge who convicted a former Canadian Football League player of knowingly exposing women to HIV focused too much on the testimony of the victims, while giving the accused's defence short shrift, the Saskatchewan Court of Appeal heard Wednesday.

Lawyer Clemente Monterosso was in front of the province's highest court arguing that Trevis Smith should be given a new trial. Smith was convicted of two counts of aggravated sexual assault last year after a judge found the former Saskatchewan Roughrider linebacker had unprotected sex with two women - one from Regina and one from British Columbia - and didn't inform them of his HIV infection.

Monterosso's central argument focused on Smith's right to be presumed innocent until proven guilty of the charge.

The lawyer attacked the way provincial court Judge Kenn Bellerose's decision dealt with the evidence from the Regina woman before it dealt with Smith's testimony. In doing so, Monterosso contends the trial judge decided Smith's victims were credible before he decided not to believe Smith's testimony.

"He already made up his mind before listening to the defence," Monterosso told the three-judge panel. "Once this is done there is absolutely no presumption of innocence for Mr. Smith - he is guilty as charged."

But Crown lawyer Bev Klatt argued Bellerose contrasted the victims' testimony against Smith testimony throughout his decision. In the end, Klatt said, the judge decided Smith simply wasn't credible.

"He's looking at both all throughout," Klatt argued.

Smith, an Alabama native who was arrested and charged in 2005 while still a member of the Roughriders, was sentenced to 5 1/2 years for the sexual assaults and an additional six months for various bail violations to which he pleaded guilty.

He is currently serving his time in Prince Albert, Sask. He is eligible for parole in February. His statutory release date after serving two-thirds of his sentence is February 2011.

At trial, the B.C. woman said she and Smith had unprotected sex several times after he found out he was HIV-positive in November 2003, but he never told her he had the virus - even when Smith became aware she wanted to donate a kidney to her ailing father.

Smith testified he told the woman about his condition in August 2004 and that the two used condoms during sex from that point.

The Regina woman testified she had a casual sexual relationship with Smith. She said Smith denied rumours that he was HIV-positive and the two had unprotected sex on three separate occasions.

Smith denied having sex with the Regina woman after he tested positive.

Neither woman had tested positive for the disease.

Smith's testimony at trial contradicted not only the evidence of the victims, but previous statements he gave to police and public health nurses and even an agreed statement of facts entered by his lawyers at trial. Bellerose rejected virtually all of Smith's testimony, at time referring to him as "totally unbelievable" at points.

Monterosso also argued Wednesday that Bellerose's use of the police statements in deciding Smith's credibility was an error because Smith had the right to remain silent with police and could say as little or as much as he wanted.

But Klatt pointed out that Smith gave a voluntary statement to police and was advised of his rights before they talked to him.

The appeal court reserved its decision.