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.

Canadian HIV/AIDS Legal Network welcomes Crown decision to drop criminal charges in Hamilton HIV case: guidelines needed

Press Release
AIDS ORGANIZATION WELCOMES CROWN DECISION TO STAY CRIMINAL CHARGES IN HAMILTON HIV CASE
But guidelines needed to avoid unsound, unjust prosecutions

TORONTO, April 22, 2010

The Canadian HIV/AIDS Legal Network welcomed the announcement at Hamilton’s courthouse this morning that the prosecution is staying the criminal charge of aggravated sexual assault against Justus Zela. He was charged in February 2009 after an ex-partner alleged they had oral sex without Zela disclosing that he had HIV. The ex-partner has not tested HIV-positive.

“We’re pleased with the Crown’s announcement this morning, but it must go further. This case should never have proceeded in the first place, and the charges should be withdrawn entirely,” said Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network. “There was never any solid basis for significant risk of transmission. It’s a misguided overreaction to lay and pursue some of the most serious charges in the Criminal Code when no harm has occurred and the risk of HIV transmission was miniscule at most.”

According to information available to the Legal Network, the charges were based solely on the claim that oral sex had taken place on a few occasions — and mostly with Mr. Zela performing oral sex, rather than receiving it.

“This case is yet another example of why the Attorney General of the province should work with community groups to develop some clear guidelines for prosecutors and police about when criminal charges are, and are not, warranted,” said Elliott. “Guidelines should be informed by the evidence about actual risks of transmission. They should also consider the damage that misusing the criminal law does to individual lives, and how it undermines public health, including HIV prevention efforts, through contributing to misinformation, fear and stigma.”

In 1998, the Supreme Court of Canada ruled that a person living with HIV has a duty to disclose his or her status to a sexual partner only if there is a “significant risk” of transmission, but much uncertainty remains about what this means.

Over the past decade, there has been an alarming increase in both the frequency and severity of charges against individuals with HIV for not disclosing their status to a sexual partner. Prosecutors have pursued serious assault charges even in circumstances where the risk of HIV transmission, already statistically small in any single sexual encounter, has been lowered further by the responsible practise of safer sex. In light of this “criminalization creep,” it is all the more urgent to address legitimate questions about where, as a matter of public policy, we should draw the lines.

Leading organizations and members of the HIV community — including health care providers, service providers, people living with HIV, academics and lawyers — have questioned the expansive use of the criminal law with respect to HIV non-disclosure in Canada. While recognizing that there is a limited role for criminal law on this issue, many legitimate concerns exist as to the impacts of this trend. Not only is studying, evaluating and critiquing the application of the criminal law appropriate, it is absolutely necessary to ensure it is used sensibly and fairly.

About the Canadian HIV/AIDS Legal Network
The Canadian HIV/AIDS Legal Network (www.aidslaw.ca) promotes the human rights of people living with and vulnerable to HIV/AIDS, in Canada and internationally, through research, legal and policy analysis, education, and community mobilization. The Legal Network is Canada’s leading advocacy organization working on the legal and human rights issues raised by HIV/AIDS.

“Criminal Law and HIV”
A series of 5 info sheets on-line at: www.aidslaw.ca/criminallaw

UK: Michael Fielder sentenced (UK reckless transmission case thrown out due to lack of evidence)

From This Is Cheshire

Disabled man who had sex with boy avoids jail

Saturday 14th July 2007
By Staff reporter

A DISABLED Northwich man who had sex with a teenage boy without telling him he had HIV, escaped a jail term for a second time at London's Appeal Court.

Michael Fielder, 52, originally received a six-month sentence, suspended for two years, in February this year after admitting committing an act of gross indecency with the boy, But Fielder, of Winnington Lane, was summoned to the Appeal Court on Thursday as the nation's top law officer - the Attorney General, Lord Goldsmith QC - called for an increase in the unduly lenient' sentence.

Lord Goldsmith's lawyers claimed a suspended sentence was inappropriate in a case where Fielder had taken advantage of a 15-year-old boy and not informed him that he had HIV.

The boy, who agreed to have sex with Fielder and later came out as openly gay', also subsequently became HIV-positive.

Fielder was at one point charged with inflicting grievous bodily harm with intent over claims that he infected the teenager but that charge was thrown out by the judge at the original charge.

And Fielder pleaded guilty to a lesser charge on the basis that he was not responsible for infecting the boy. A condom had been worn during the episode, the court was told.

The offence occurred seven years ago when Fielder was running a hotel in Blackpool. There was no element of coercion in the sex act between them, and the teenager played the dominant role.

At the time of the offence, the teenager was just short of his 16th birthday and Fielder's crime pre-dated the 2001 Sexual Offences Act, which reduced the age of homosexual consent from 18 to 16.

Lord Justice Latham - sitting with Mr Justice Royce and Mr Justice Ramsey - said a nine-month jail term would normally have been called for.

But given Fielder's failing health - he is now partially quadriplegic' - and the fact the grievous bodily harm charge had hung over him' for some time before being thrown out - a suspended sentence was now appropriate, the judge concluded.

At the time of the original court case, Fielding ran the Sauna Sauna gay club at the former ICI Winnington site.