US: New York Court of Appeals Says HIV+ Man’s Saliva Is Not a “Dangerous Instrument” (Press Release)

New York Court of Appeals Says HIV+ Man’s Saliva Is Not a “Dangerous Instrument”

Punishing People on the Basis of Physical Attributes Would Create “Sliding Scale of Criminal Liability”

New York, June 7, 2012 – Legal and public health experts are applauding the New York Court of Appeals, decision today to vacate the 2006 conviction and sentencing of David Plunkett, an HIV-positive man, for aggravated assault for biting a police officer. The state prosecutor argued that Plunkett had used his saliva as a “dangerous instrument” when he allegedly bit a police officer during an altercation involving several police who were restraining him following an outburst in a medical facility. Plunkett currently is serving a 10-year prison term in Sing Sing.

New York’s highest court vacated Mr. Plunkett’s conviction and dismissed the aggravated assault complaint against him on the basis that his saliva, or any body fluid or part, cannot be treated as “dangerous instruments” and a basis for charging someone with aggravated assault under New York law.

In a 1999 decision, The NY Court of Appeals had ruled that a person’s teeth cannot be characterized as a dangerous weapon, or “instruments” under the terms of the law, as an element of an assuault charge.  The prosecutor and lower court attempted to get around this by stating that the "dangerous instrument" in the indictment was in fact the defendant’s saliva, which was “readily capable of causing death or other serious physical injury.”

In its ruling, the Court “sought not simply to reach a textually and historically correct understanding of what the Legislature meant” the law to include, but also to avoid the injustices that “would result if criminal liability varied with the corporeal attributes of assailants and their victims.”  This interpretation would make an individual’s health, disability or even physical characteristics relevant to a determination of the ability to do harm, resulting in a “sliding scale of criminal liability,” the Court concluded.

The ruling is particularly important because it makes clear that a person's health status, disability or other physical attributes should never be the basis for increased charges or sentencing.

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.

“HIV is not a particularly easy virus to transmit, and it is virtually impossible for it to be transmitted through biting,” explained Terrance Moore,Director, Policy and Health Equity at the National Alliance of State and Territorial AIDS Directors (NASTAD). “However, it is important that we realize that treating HIV or any disease as something that should be the basis of criminal charges, absent actual harm, is terrible for public health efforts. The Court’s implicit recognition of the injustice of basing liability on health status is a huge boon for our work.”

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.”

“The decision has important implications for cases where people with HIV essentially are being charged and imprisoned on the basis of their health status rather than any intent to do harm,” said Catherine Hanssens, Executive Director of the Center for HIV Law and Policy (CHLP). “The Court of Appeals has gone beyond the issue of transmission risk to say that relying on disability or health status at all is an unfounded and unjust application of aggravated assault statutes.”

Dr. Jeff Birnbaum, Executive 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 the type of stigma reflected in the prosecutor’s point of view all the time.  I treat young people who are being told on one hand that HIV is something they can manage, that it doesn’t make them a pariah, and on the other that their spit and blood are lethal weapons and that they are dangerous to be around. The prosecutors bringing these cases make my job so much harder. Today’s decision is really good news.”

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, and even when no transmission occurs.

David Plunkett was represented by Audrey Baron Dunning. Lambda Legal submitted an amicus brief joined by the the American Academy of HIV Medicine, the Association of Nurses in AIDS Care, the Center for HIV Law and Policy, and the HIV Medical Association

###

The Positive Justice Project (PJP) is the first coordinated national effort to address HIV criminalization in the United States, and is coordinated by the Center for HIV Law and Policy. For more information on PJP and HIV criminalization, go to http://www.hivlawandpolicy.org/public/initiatives/positivejusticeproject.

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.”

US: Montana legislator's HIV "ignorance in the first degree" exposed and denounced

Judicial ignorance is something I often highlight on my blog.

Sadly, it is most often (but not exclusively) seen in the United States – a place where a Michigan prosecutor believes that biting someone in self-defence is terrorism if the biter is HIV-positive; where a Texas defence lawyer believes people with HIV are potential "serial killers" if they don't disclose before having unprotected sex because their HIV is a "deadly weapon"; and where a North Carolina judge believes that a man who attempts to bite a police officer on the ear is also a walking 'deadly weapon'.

Today I'm adding a new label to my blog – political ignorance – inspired by two scary, crazy, and dangerous events in as many weeks.

On Tuesday, Montana Representative Janna Taylor (a Republican, of course) testified in favour of Montana keeping the death penalty by citing the example of the most heinous, murderous crime she could think of – prisoners with HIV aiming saliva and/or blood-soaked paper “blow darts” at prison guards in an attempt to kill them.

Yesterday, the video of Rep. Taylor's comments, originally posted on YouTube by shitmyrepsaid went viral throughout the US bloggersphere - from Montana bloggers Don Pogreba and D Gregory Smith to more mainstream gay sites, Towleroad and Queerty.

[Update 11 February: LGBT health blog, Crowolf, features an email response from Rep. Taylor that states:

I have tried to answer every email, even the ones that were not professional, as you worded it. My words were very poorly chosen, and I apologize for them. Montanans with HIV are simply people living with a virus. I was intending to illustrate that there are scenarios we cannot currently conceive of that may warrant the death penalty, and to remove it from the available options for punishment at this time would be misguided. HIV transmission was not an appropriate example. Again, I sincerely apologize for my inappropriate and inelegant statement, and I encourage all Montanans to become better educated about HIV.

It's all well and good to respond to individual emails, but there's nothing yet on Rep. Taylor's own website making her HIV u-turn clear to her constituents and rest of the America.]

The idea that HIV could be transmitted in this way, and that this could be considered not just murderous intent, but worthy of the death penalty, is a point of view so dripping in HIV-phobic ignorance that at first I thought it wasn't worth blogging about.  After all, it's so scarily out-of-step with science that surely no-one would take her comments seriously. Why give her poisonous ideology any further oxygen?

But during a lengthy email discussion yesterday with Sean Strub, senior advisor to the Positive Justice Project (PJP) and Catherine Hanssens, executive director of the Centre of HIV Law and Policy which hosts the PJP, I was persuaded that this lawmaker's ignorance provided an excellent opportunity to highlight exactly how HIV-related ignorance plays its part in the further stigmatisation – and criminalisation – of people with HIV.

More of that in a moment.

Now this wasn't the only recent case of a US politician furthering HIV-related stigma in the name of 'justice'.  Just last week, as highlighted in my blog post here, Nebraska State Senator Mike Gloor introduced a bill into the Nebraska State Legislature that would especially criminalise people with HIV (and viral hepatitis) who assaulted a peace officer through body fluids - notably by spitting, or throwing urine at them. (Neither of these risk HIV exposure.)

In both cases, PJP reacted swiftly to the threat. They worked closely with advocates in Nebraska to fight against the proposed body fluids assault bill and despite local media coverage that appeared to suggest strong support for the bill, local advocates reported (in a private email to the various PJP workgroups – full disclosure, I'm a member of the media workgroup) that because of opposition testimony from ACLU-NE and Nebraska AIDS Project, good questions were raised by some Senators on the committee that may lead to them to seriously consider blocking this bill’s passage.

And last night, PJP put out a press release that highlights Rep. Taylor's "ignorance in the first degree".

When HIV-related ignorance and stigma emanates from the mouths of politicians and lawmakers, this becomes state-sponsored ignorance and stigma – the most dangerous kind, the kind that can lead to HIV-specific criminal laws, or provisions that turn misdemeanours into felonies resulting in significantly longer sentences for people living with HIV than those without.

Treating people with HIV as potential criminals when in fact we pose no real threat with the kind of behaviour politicians believe is 'dangerous and criminal', takes away our human and civil rights and furthers the public's and media's perception that people with HIV are something to be feared or hated.

PJP's powerful and co-ordinated response is the kind of advocacy in action that needs to be replicated wherever the rights of people with HIV are threatened by ignorance and stigma.

The full text of the press release is below. It can also be downloaded as a pdf here.

Positive Justice Project

Denounces Montana Legislator’s Uninformed Comments

“…ignorance in the first degree…”

Contact:

Catherine Hanssens, 347.622.1400

chanssens (at) hivlawandpolicy.org

Sean Strub, 646-642-4915

sstrub (at) hivlawandpolicy.org

New York, February 9, 2010 – Leading public health officials and advocates for people with HIV responded swiftly to news that a Montana state legislator, while testifying in favor of retaining the state’s death penalty statute, suggested that prisoners with HIV make paper “blow darts”, put their blood or saliva on them and throw them at prison guards in an attempt to kill them.

A video of the legislator’s comments was posted earlier today by blogger Don Pogreba at the Montana-based website intelligentdiscontent.com.

According to the federal Centers for Disease Control, HIV is not transmitted by saliva, and HIV in blood dies quickly after being exposed to air. HIV-infected blood does not survive outside the body long enough to cause harm, unless it penetrates mucus membranes.

The Positive Justice Project, a program of the New York-based Center for HIV Law & Policy, is a coalition of more than 40 public health, civil liberties and HIV/AIDS organizations combating HIV criminalization and the creation of a “viral underclass”; they oppose laws that treat people with HIV different from how those who do not have HIV, or who do not know their HIV status, are treated.

The Center’s executive director, Catherine Hanssens, said “Rep. Janna Taylor’s remark is ignorance in the first degree. Quite frankly, it is typical of the ignorance we had to deal with decades ago, early in the epidemic, when little was known about how the virus was transmitted. It is astonishing that an elected official today could be so fundamentally uninformed.”

Julie M. Scofield, executive director of the National Association of State and Territorial AIDS Directors (NASTAD), said "My plea to Rep. Taylor and legislators at all levels concerned about HIV is to do your homework, talk with public health officials and get the facts. Spreading fear about HIV transmission will only set us back in the response to the HIV/AIDS epidemic in Montana and every other state in the U.S."

Other experts from Montana and national organizations also commented on Rep. Taylor’s remarks:

"Ms Taylor's statement just shows the need for greater support and funding for HIV education and prevention in the State of Montana. Unfortunately, misinformation such as this is all too prevalent, leading to pointless discrimination and myth-based fears and policies. After 30 years of dealing with HIV, the public should be much better informed about its transmission. No wonder HIV infection rates haven't stopped."

--- Gregory Smith, co-chair of the Montana HIV/AIDS Community Planning Group, a licensed mental health counselor and a person living with HIV

“I am disturbed and disappointed to hear such misinformation coming from a local government official, but sadly I am not especially surprised. As we enter the 30th year of this worldwide epidemic I am frequently reminded of the need for continued education and outreach, the facts are still not clearly understood by the general masses. Perhaps if we were more willing as a society to discuss more openly the risk behaviors that transmit the virus we would not find ourselves responding to such an insensitive and false statement.”

--- Christa Weathers, Executive Director, Missoula AIDS Council, missoulaaidscouncil.org

"HIV infected blood cannot infect someone through contact with intact skin or clothing if the skin underneath is intact."

--- Kathy Hall, PA-C, retired American Academy of HIV Medicine-certified HIV Specialist, Billings, MT

“The comments made by the Montana Legislator really demonstrate total ignorance about how HIV is transmitted. If elected officials don't understand the basic facts, how can we expect young people and those at greatest risk to understand them?"

--- Frank J. Oldham, Jr., President, National Association of People with HIV/AIDS, napwa.org

“This is an example of people with HIV, especially those who are incarcerated, being stigmatized and used as fear-fodder by politicians whose ignorance and quickness to demonize people with HIV outweighs common sense and two minutes of Google research. Even when someone is exposed to HIV, a 28-day course of anti-HIV drugs used as post-exposure prophylaxis is effective in preventing HIV infection. It also isn’t a death sentence; those who acquire HIV today and have access to treatment generally don’t die from AIDS.”

--- Sean Strub, founder of POZ Magazine, a 30 year HIV survivor and senior advisor to the Positive Justice Project.


****
The Positive Justice Project is the first coordinated national effort in the United States to address HIV criminalization, and the first multi-organizational and cross-disciplinary effort to do so. HIV criminalization has often resulted in gross human rights violations, including harsh sentencing for behaviors that pose little or no risk of HIV transmission.

For more information on the Center for HIV Law and Policy’s Positive Justice Project, go to http://www.hivlawandpolicy.org/public/initiatives/positivejusticeproject.

To see the Center for HIV Law and Policy’s collection of resources on HIV criminalization, go to: http://www.hivlawandpolicy.org/resourceCategories/view/2

The Positive Justice Project has been made possible by generous support from the M.A.C. AIDS Fund, Broadway Cares/Equity Fights AIDS, the van Ameringen Foundation and the Elton John AIDS Foundation. To learn more or join one of the Positive Justice Project working groups, email: pjp (at) hivlawandpolicy.org

Texas: Another 'deadly weapon' HIV exposure conviction: 15 years for one-off sexual encounter

A 26 year-old man from the small Texan town of Copperas Cove has been sentenced to 15 years in prison with an additional $3000 fine after pleading guilty to charges of aggravated assault with a deadly weapon.

The aggravated assault? Having one-time consensual unprotected sex with a 16 year-old male after the two met on Grindr.  The deadly weapon?  HIV, of course.

The details of the man's arrest, including a link to a photocopy of the affadavit of charges, were first published last November on the website of a local TV news station. 

The victim learned through another "Grinder" user that [the man] claimed to be HIV-positive. Police say [he] admitted that he was HIV positive during an interview with investigators. According to the affidavit, [he] did not inform his victim that he was HIV-positive.

Yesterday the local TV news station reported on the 15 year sentence handed down by the 52nd District Court noting that the man had previously pleaded guilty as charged in June.

In March 2010, similar charges were laid against another HIV-positive man in another part of Texas for sex with a 15 year-old male under similar circumstances.  The rather balanced Houston Chronicle article reporting these charges also referred to this case and pitches prosecutor David Castillo against Catherine Hanssens, executive director of the New York-based Center for HIV Law and Policy.

Prosecutors in Gatesville are trying the same tactic after similar allegations against another man surfaced last year. Coryell County District Attorney David Castillo plans to prosecute [name of man] in May. [The man], 26, is accused of sexually assaulting a 16-year-old boy he met on the Internet last year. Castillo said he believes [the man] has HIV and plans to prosecute him, regardless of whether the boy contracted it. “You can fire a gun at someone and miss, and it's still aggravated assault with a deadly weapon,” Castillo said.

The analogy is a poor one, said Catherine Hanssens, executive director of the New York-based Center for HIV Law and Policy, because it overestimates how easily HIV is spread and stigmatizes those with the virus. “HIV should not be an aggravating factor unless there's some evidence that he intended to do some harm and did some harm,” Hanssens said. “Criminal law in every state is adequate to deal with it. But to treat it as evidence of guilt and a deadly weapon wasn't appropriate in 1985, and it isn't appropriate now.”

In more than 20 years of advocacy, Hanssens said she had seen dozens of charges involving defendants with HIV, some arising from charges involving biting and spitting. Hanssens said charges alleging a “deadly weapon” arise from an infected person's knowledge that they have the virus. She blasted prosecutors and public officials for not considering the deeper ramifications of calling HIV a deadly weapon.

“To refer to HIV as a deadly weapon in 2010 speaks of just unforgivable ignorance,” Hanssens said.

Contrast Ms Hanssen's point of view with a blog posting by Houston criminal defence lawyer John Floyd, who discusses both cases and opinions in the above article, in a post entitled, Is HIV a Deadly Weapon?

HIV infected individuals who knowing have unprotected sex with sex partners without informing them of their infection are potential “serial killers.” It is impossible for the infected individual to know who or how many of their sex partners will contract HIV and die as a result of the exposure. No one should be exposed to such potentially fatal risks simply because someone is not responsible enough to fully disclose that he/she has a potentially contagious disease.

With defence lawyers like him, who needs prosecutors?
  
Of note, the age of consent in Texas is 17, and yet charges of "statutory rape" were not laid, even though the same outcome could have been obtained (Sex with a minor is a second degree felony, punishable by two to twenty years in prison and a fine of up to $10,000.00) without these ridiculous and stigmatising 'deadly weapon' charges. 

Last November in Michigan – a state not known for its enlightened treatment of people with HIV given the (now dropped) terrorism charges against an HIV-positive man who allegedly bit a neighbour in self-defence – a 21-year-old man who pleaded guilty under the state's HIV disclosure law to having unprotected sex during a one-night stand with a 16 year-old girl without first disclosing that he was HIV-positive was  jailed for nine months. The age of consent in Michigan is 16, so this was not statutory rape.

Canada: Hamilton woman get two years house arrest after pleading guilty to HIV exposure following condom failure (update)

Update: November 21st

Robin Lee St. Clair, a woman who used condoms for her one-night encounter, and who revealed her HIV status when the condom broke to allow the man to access PEP, has been sentenced to two years' house arrest, according to a report in the Toronto Sun.

Robin St. Clair, 28, who pleaded guilty to two counts of sexual assault, cried in court today when she was told she would be registered as a sex offender for life and would be made to provide a DNA sample. [...] She will also be on probation for three years after the house arrest.

I originally thought it was just one count, but no - they had sex twice! With condoms!!

The man had intercourse with St. Clair twice and on the second occasion the condom ripped.

In my original post, below, I had wondered whether the judge, Justice Paul Taylor, might actually be a good guy for considering 'just' a 90 day prison sentence. I'm not sure that two years' house arrest is preferable.

But, actually, Justice Paul Taylor is just as irrational as most of the rest of the criminal justice system when it comes to HIV. His comments – that sex with condoms with someone who knows they are HIV-positive but doesn't tell you is unlawful – are not exactly true to the spirit of the Cuerrier decision.

Criminal law has a role to play when people with HIV put the lives of others at risk. No one would voluntarily get the disease," Taylor said. "(The man) was exposed to a risk he shouldn't have been exposed to. If he was told of her status he would have rejected her, which was his decision to make."

Court heard that the man had a 1-in-2,000 chance of contracting the HIV, but remains disease free.

"To him it is still very real and continues to debilitate him," Taylor said. "The melancholy fact is condoms break."

Taylor said St. Clair's actions weren't calculating so he decided to let her serve the time under house arrest.

"She wasn't seeking out men to expose them to the disease," Taylor said. "But she is not blessed with all the intellectual gifts."

Such comments suggest that Justice Taylor needs to reread Cuerrier and reassess if it really means what he thinks it is saying. Cuerrier established that consent to otherwise consensual sex is invalid if a person living with HIV does not disclose this before engaging in conduct that poses a "significant risk" of HIV transmission. Having sex with condoms - even if they do occasionally break – is not a "sigificant risk". A 1-in-2000 chance of acquiring HIV is not a "significant risk".

Yet the careful use of condoms might be found to so reduce the risk of harm that it could no longer be considered significant

Mr Justice Corey, R v Cuerrier (Supreme Court of Canada, 1998)

This is how people have sex in the real world. Having sex with a condom with someone who is HIV-positive, is safer sex not safe sex. That does not eliminate risk, but it is within the bounds of life's normal risks.

I'm certain that Canadian advocates will be outraged and disappointed with Justice Taylor.

Since Ms St Clair pleaded guilty, there can be no appeal, and this will not create a legal precedent. The lesson to be learned is that people who are charged under Canada's HIV non-disclosure law need good legal advice. If she had pleaded not guilty and this had gone to trial, she would have been found innocent.

However, what Canada really needs is prosecutorial guidelines like those produced in England & Wales, that set out where the Crown should prosecute based on current law. This case should never have been prosecuted in the first place.

Original post: September 17th

Is the tide finally turning?

Following yesterday's revelation that a US judge has reduced the sentence for non-disclosure during a one-night stand from 25 years in prison to five year's probation, a judge in Toronto is debating whether to sentence a 28 year-old woman from Hamilton, Ontario to 90 days in prison or give her a conditional discharge for the same 'crime'.

Robin Lee St. Clair pleaded guilty in June to two counts of aggravated sexual assault for not disclosing her HIV status to a man she met for a one-night stand in 2007. (At least this was only charged as aggravated sexual assault; two men currently face attempted murder charges for exactly the same 'crime')

Now, the Toronto Sun reports what happened during her sentencing hearing before Ontario Court Justice Paul Taylor earlier this week. In the article, commentator/journalist Michele Mandel writes:

Should the Hamilton woman be sent to jail for having sex with a Toronto man without telling him she has HIV? Or has the 28-year-old already paid her debt to society -- her photo plastered on the front page of her local newspaper, she and her son kicked out of the community pool? Is she a criminal or just a coward afraid to divulge her terrible secret as she looked for love? Should she be punished? Or rehabilitated? It depends on which side of the Finch Ave. courtroom you sat on yesterday.

She then highlights, as I did in my previous blog posting on this case, that despite the police claiming she posed a "huge threat", only on complainant has ever appeared.

BROKEN CONDOM

The article also explains, for the first time, what happened between Ms St. Clair and the complainant. It seems that Ms St. Clair did disclose her HIV status to the man - but after the condom they were using broke. This is what all responsible HIV-positive individuals should do in such a situation, so that the HIV-negative individual can access PEP. But rather than thank her for the information, the man ran to the police.

The most worrying thing about this case is the fact that the Crown decided to prosecute, despite this man being the only complaint.

Crown Tim Morgan asked the judge to send the single mom to jail for 90 days as both "deterrence and denunciation" of her exposing her victim to possible infection without his consent. The fact that she insisted on a condom doesn't mitigate what she did, the prosecutor added. "It's not good enough -- in fact, it's criminal -- to just use a condom and be absolved of your responsibility. You have to disclose."

Mr Morgan is dead wrong, but it seems that Justice Taylor did not pick up on the difficulties with the law around issues of HIV disclosure and "significant risk". This issue - whether HIV-positive Canadians must disclose prior to sex even with a condom - has not yet been decided by the Supreme Court, but it is not definitively considered to be "criminal", as he asserts.

Writing in the May 2009 issue of HIV/AIDS Policy & Law Review 14(1), the Canadian HIV/AIDS Legal Network's Alison Symington notes:

The majority judgment was clearly not imposing a blanket obligation on persons living with HIV to disclose their status in every sexual encounter. What was not clear is where the line would be drawn between activities requiring disclosure and those not requiring disclosure. For example, Justice Cory [writing for the majority in the Cuerrier decision] contemplated that disclosure might not be required with respect to intercourse for which a condom was used, but did not make an explicit ruling on the issue.

Ms St. Clair's lawyer, Kim Edward, argued that the prefered sentence would be a conditional discharge,

insisting her client is a "simple" woman who can neither read nor write very well, a good mother and community volunteer who is educating herself -- better late than never, it seems -- about the moral and legal responsibilities that come with the HIV she has had since 2003. "This is not one of those individuals who is callously and intentionally infecting others," Edward told the court.

IMPACT STATEMENT

I'm always interested in hearing what the impact of having a one-night stand with someone who you discover is HIV-positive must be like. I mean, surely if you are having a one-night stand you must know that there is a chance that the person you are sleeping with will have HIV. At least one-in-four people with HIV don't know they have the virus, so even if they wanted to disclose this before sex, they couldn't.

Ms St. Clair's 'victim' doesn't appear to have considered this; and he wasn't at all grateful that she disclosed following the breakage of the condom, which would have allowed him to seek medical attention to reduce the risk of becoming HIV-positive.

While he remains HIV-negative, he writes in his victim impact statement entered in court yesterday that he is plagued with embarrassment and will never be the same. "I am no longer able to sleep through the night due to anxiety and stress," he wrote. "I am stuck in a box ... I don't care about anything anymore. The year of doing blood work to make sure I was OK has affected me the most. The waiting period of a whole year felt like an eternity to me. Waiting to see if I was affected by the disease has had the most fearful impact on my life. I am still not 100% sure in my mind that I am OK."

I am constantly amazed that people who have been exposed to HIV via, say, a broken condom, or a bite, agonise over their extremely low risk for much longer than is necessary. The latest generation HIV tests can pick up antibodies within ten days, and experts now agree that the 'window period' between infection and detection is less than one month. Why did this man's uncertainty last a year? Is it really Ms. St Clair's fault that this man worries excessively? And what exactly is he embarrassed about? If I were him, I'd be embarrassed that I complained the police about something that was clearly as much his responsibility as Ms St Clair's following the accidental breakage of a condom.

Finally, I must comment on - and protest - the language used by Ms Mandel in the article, who uses the usual 'deadly weapon' cliché to describe a consensual sexual act between two adults.

[Ms St Clair is] like a woman who has played Russian roulette with at least one man's life...she carries a weapon as lethal as any gun.

Robin Lee St. Clair will finally learn her fate on October 28th.

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.

US: New HIV as a 'deadly weapon' case in North Carolina (updated)

Another US jurisdiction has classified a person living with HIV as a walking deadly weapon. North Carolina police yesterday charged a 45 year-old HIV-positive man with "assault inflicting serious bodily injury and assault with a deadly weapon" after he resisted arrest in Durham.

According to a brief report in The News & Observer, the police report says that the man

knowing he is HIV-positive, twice tried to expose the officer to his blood, once by cutting the officer's thumb and also by head-butting him and biting his ear.

This prompted one local citizen to write in the comments section

This was a vicious act. If the officer had escalated the continuum of force level to shooting and killing this person he wwould [sic] have been justified. We don't know how this individual acquired HIV and that doesn't matter in that a decent human being would not knowingly have exposed another to the disease.

Another wrote

This event should lead to a charge of attempted murder because that is what it is. This act by this infected man is willful and intentional. May God be with the officer and find him or her free and clear of this dreadful disease.

The man, who was also charged with "injury to real property and unauthorized use of a motor vehicle," will appear in court on June 29th.

Update: June 23rd

The man actually appeared in court yesterday. The hearing was filmed by local TV station, News14.

It is now patently clear to me, from the details revealed, that the risk of HIV transmission from the acccused to the police officers was so slim as to be negligable.The facts are that he cut a police officer's right thumb while he was bleeding (interestingly, it doesn't say how he got to be bleeding) while that officer was trying to arrest him (and it doesn't say that he intentionally did so). He also didn't actually bite the other policeman's ear, but only "tried to bite that officer's ear".

And yet, Judge William Marsh III tells the court

"If Mr. Perry is engaged in the behaviour described, knowing that he has a potentially fatal condition with the ability to infect others, I consider that a serious offence, and could very well have potential to be increased to something more serious."

This still suggests that when someone who is HIV-positive resists arrest, they can be seen as being 'deadly weapons' in the absence of any real possibility of transmitting the virus. This surely is a prime example of HIV-related discrimination based on ignorance and stigma.

US: Is spit now a 'deadly weapon' in New Mexico?

An HIV-positive man in New Mexico has been charged with aggravated battery with a deadly weapon after he spat at a police officer, according to a brief report from local TV station, KRQE.

Officers responded to a call that [the man] was trying to kill himself, according to the criminal complaint. However he wasn't. When police tried to check on him, they said he was hostile, swearing and spitting at them. Comstock is HIV Positive, according to court documents.

(Video of the report is below - warning: there is a 15 second commercial before the short news item)



New Mexico does not have any HIV-specific laws, and there is no record of any previous arrests or convictions for criminal HIV exposure or transmission. However, a 2007 case (STATE V. NEATHERLIN, 2007-NMCA-035, 141 N.M. 328, 154 P.3d 703) previously established that a bite from someone with hepatitis C was sufficient to be charged and convicted under this this charge, and a 2000 case (STATE V. JONES, 2000-NMCA-047, 129 N.M. 165, 3 P.3d 142) previously established that spitting on a police officer was suficient to be charged and convicted of battery.

Last year, neighbouring Texas jailed a 42 year-old man for 35 years (under the third strike rule) and at least a dozen HIV-positive individuals in the US have previously been sent to prison for spitting, most of them on for spitting on a police or prison officer. (See this analysis following the Texas case; since then a woman from Georgia was sentenced to three years and in January 2009 a Pennyslvania woman was charged with a similar 'crime', although there are no reports of her conviction).

US: Padieu gives TV interview, highlights Texan 'injustice'

It wouldn't happen anywhere else, but three days after Philippe Padieu was sentenced to 45 years in prison after being found guilty of six counts of aggravated assault with a deadly weapon, after having unprotected sex without first disclosing his HIV status with six women who subsequently tested HIV-positive, he gave a TV interview to CBS 11 News.

In it, he essentially repeats the same accusations of bias and lack of evidence that he made in court prior to be sentenced.

I thought the trial was just public opinion turned against me. It wasn't a fair trial at all... The reason I'm serving 45 years is because I had an ineffective counsel. I had no money...

However, seeing him say these things in the flesh makes me appreciate that he has a point. In particular, since Texas has no HIV-specific law, the bar is set much higher in proving that he actually infected the six women with HIV. Although phylogenetic analysis linked his strain of HIV with the six women's, that is not enough to prove the direction of transmission, and - notably - the timing.

He noted that all six women had multiple partners, and that he had sex with three of them before he tested positive (which means he could have infected these women before knowing his status, which definitely would not be a crime).

I think it was an injustice. You couldn't say anything about these woman in court. You couldn't bring up their past sexual history.

However, some of his other allegations are more difficult to swallow, including saying that the six women were "very vindictive."

You could blame them because they failed to take responsibility. They lied. They were involved in a conspiracy. They formed a hate group. I believe they should step up to the plate. They are just as responsible as I am...There's rage. There's vengeance. Admitting knowledge is not admitting responsibility. Hate and anger is fear and guilt in disguise.

Mr Padieu will now appeal and is looking for a new lawyer.

US: Texan man found guilty of aggravated assault with a deadly weapon for reckless HIV transmission

A Texas jury has found 53 year-old Philippe Padieu of Frisco, Texas, guilty of six counts of aggravated assault with a deadly weapon. He is the sixteenth person with HIV in Texas to be successfully prosecuted for either HIV exposure or transmission since 1997.

Update: May 30th.

• Mr Padieu was sentenced to 45 years for five counts and 25 years for the remaining count. The sentences will run concurrently. This is the longest-ever sentence I have come across since starting my blog, but not that surprising for Texas.
  
• Although he didn't testify during his trial, he addressed the court prior to sentencing, claiming that he was, essentially, 'framed' by the complainants and prosecution.
• (An interesting analysis of the implications of the case was published in a Fort Worth Weekly blog.)

Original posting, from May 28th, below:

Mr Padieu was arrested in July 2007 after two women went to police after testing HIV-positive . The police investigation led to four further complainants.

The case has had widespread media coverage throughout the United States, highlighted in today's Dallas Morning News story summarising the trial.

After five hours of deliberations, the [jury's] guilty verdicts were read in a large ceremonial courtroom where the trial was moved to accommodate local and national TV crews covering the case, including ABC's 20/20.

Prosecutors likened Mr Padieu to a "ticking time bomb, a lethal weapon."

"It's as if he took a gun and shot all of them," prosecutor Lisa King said during closing arguments earlier in the day. "But a gunshot wound heals. In this case, he gave them a virus that causes a disease that may well kill them."

[Assistant District Attorney Curtis] Howard said, Padieu is "a ticking time bomb, he's a lethal weapon," and he likened Padieu to Typhoid Mary. He told jurors that Padieu broke the law by knowingly, recklessly and intentionally having sex with multiple women, exposing them to HIV, the virus that causes AIDS, without telling them.

His defence attorny, Bennie House, argued that Mr Padieu was in denial and that the six female complainants should have protected themselves knowing that unprotected sex can result in the transmission of sexually transmitted infections.

"They asked Mr. Padieu if he was safe, he said yes," said House. "He's in denial." He added, "Mr. Padieu is not a predator. ... He likes sex...House said his client's partners had a responsibility to practice safe sex. "They should have invoked a mantra – no glove, no love," House said. "If that didn't happen, they should walk out."

Another of Mr Padieu's defence lawyer, George A. Giles, argued - rather unsuccessfully given the many previous Texan convictions for HIV-positive bodily fluids being classed as deadly weapons, including Willy Campbell, who was sentenced to 35 years for spitting at a cop – that Texan law did not specifically say that his client had committed aggravated assault.

[He said that] what Padieu did does not constitute aggravated assault. He suggested that prosecutors go to Austin to lobby for changes in the law if they want to use the criminal code to address the practice of unsafe sex by someone with HIV. "When does he have to tell them or anybody he's got a disease?" Giles said.

However, since the law in Texas is not HIV-specific, the bar was set much higher for the prosecution to prove that Mr Padieu actually infected the six women. They used one of the US's foremost experts in HIV forensics, Dr Michael L Metzker, of Baylor College of Medicine, Houston, Texas, to testify that Mr Padieu's virus was extremely similar to that of the six women, although he came to a conclusion that may not have been totally scientific.

The news website of NBC Dallas Fort/Worth reported:

He said he used a national database of HIV positive blood samples and compared the samples taken from Padieu and his six alleged victims. In what was called a blind study, Metzker never knew who each sample belonged to.

"I wanted anonymous samples," he said. "I did not want to know the identity of any of the individuals, we treated them all equally, generated the data, generated the alignments."

Metzker said Padieu is the source of his accusers' infection.

"One sample stood out as the potential source of most, if not all, of the other samples," he explained.

However, Padieu's attorneys got Metzker to admit that the study reaches a conclusion, but cannot be called an absolute fact.

The defense is focusing on the fact that HIV can mutate and change over time.

Mr Padieu will be sentenced tomorrow (Friday May 29th). He faces sentencing that ranges from five to 99 years in prison on each of the six counts.

US: Alleged HIV positive prisoner mails judge blood-stained letter

Here's an interesting non-story about a Texas prisoner who "claims to be infected with HIV" who sent a letter to a judge that "appeared to be contaminated with blood".

Although it's only in a local paper, at least the journalist got some expert advice about the potential infectivity of blood-stained paper.

HIV, the virus that causes AIDS, cannot live outside the human body for more than 30 minutes, so there isn't any chance that the contaminated letter could infect another, according to Olufami Fawey, a program director for the Coastal Bend AIDS Foundation.

"It's unhygienic," Fawey said, "but as a matter of infectivity, the virus does not live outside the body. There's zero possibility."

Story from the Corpus Christi Caller-Times, below.

Prisoner mails court letter and maybe blood
By Dan Kelley
August 12, 2008

An inmate who claims to be infected with HIV mailed a letter to federal court that appeared to be contaminated with blood.

U.S. District Judge Hayden Head ordered Monday that nearly all of the inmate's mail be inspected to make sure it does not contain blood, fecal matter or other dangerous substances. He also no longer will be allowed to send mail to Head.

The inmate, Patrick Reid, 60, is incarcerated at the McConnell Unit in Beeville, for assault of an elderly individual and aggravated assault with a deadly weapon. He has represented himself in a handful of lawsuits in federal court.

There are two categories of mail in Texas prisons. Mail to friends and family are regularly inspected. To protect attorney-client privilege and free-speech rights, mail to attorneys, the courts and to the news media are not inspected.

Jason Clark, a spokesman for the Texas Department of Criminal Justice, said there have been other incidents in which prisoners mailed unpleasant substances to the outside.

"It happens on occasion," Clark said. "You're dealing with a population that didn't abide by the rules on the outside. Occasionally, they don't follow the rules on the inside."

Clark said the incident is under investigation by prison officials who may pursue charges.

HIV, the virus that causes AIDS, cannot live outside the human body for more than 30 minutes, so there isn't any chance that the contaminated letter could infect another, according to Olufami Fawey, a program director for the Coastal Bend AIDS Foundation.

"It's unhygienic," Fawey said, "but as a matter of infectivity, the virus does not live outside the body. There's zero possibility."

US: Spitting as a deadly weapon: analysis

I have just written a news feature for aidsmap.com analysing the recent conviction of an HIV-positive man in Texas to 35 years in prison for spitting at a policeman.

The first few paragraphs are below, but to read the article in full, click this link.

Texas jury concludes saliva of HIV-positive man a ‘deadly weapon’, sentenced to 35 yrs jail

Edwin J. Bernard, Friday, May 16, 2008

A 42 year-old HIV-positive man from Texas who spat at a police officer during his 2006 arrest for being drunk and disorderly has been sentenced to 35 years in prison by a Dallas court and must serve at least half of his sentence before being eligible for parole because the jury found that his saliva was a deadly weapon.

The case, which was reported by more than 175 news outlets yesterday, has outraged UK HIV organisations, particularly since only three reports – from The New York Times, USA Today and the Mississippi Clarion-Ledger – actually mention that HIV cannot be transmitted via spitting.

'It is shocking that in the same country which has some of the most advanced research into HIV and its treatments, there can be such ignorance within the legal system as to how HIV is transmitted,” said Deborah Jack, Executive Director of the National AIDS Trust. “This is not justice but a victory for fear, myth and prejudice. Such a verdict - contradicted by all the science - must constitute a breach of Mr Campbell's right to a fair trial.”

Lisa Power, Head of Policy at Terrence Higgins Trust, added: "The saliva of someone with HIV is not a deadly weapon. Putting someone with HIV in a situation where they cannot access condoms, treatment is poor and they may have little choice about sexual activity is a far more dangerous thing to do, and US clinicians need to tell the Texas legal system so."

US: Texas man gets 35 years for spitting; saliva was 'deadly weapon'

A 42 year-old HIV-positive man who spat at a police officer during his arrest for being drunk and disorderly has been sentenced to 35 years in prison by a Dallas court and must serve at least half of his sentence before being eligible for parole because the jury found that his saliva was a deadly weapon!

Words actually fail me. The man was angry during his trial, and one of his outbursts, "You're all railroading me. I'm an innocent man," rings pretty true to me. Surely one of the worst examples of anti-HIV prejudice in a courtroom I have ever seen.

Story, from The Dallas Morning News, is below.

HIV-positive man gets 35 years for spitting on Dallas police officer
Wednesday, May 14, 2008
By TIARA M. ELLIS / The Dallas Morning News
An HIV-positive man with a history of spitting at police officers and biting fellow jail inmates was sentenced to 35 years in prison Wednesday.

Willie Campbell's sentence came one day after the same Dallas County jury convicted the 42-year-old of harassment of a public servant for spitting into the eye and open mouth of Dallas Officer Dan Waller in May 2006.

As Mr. Campbell was being arrested for public intoxication, he began to resist and kicked at the computer screen in the police vehicle, Officer Waller testified during the two-day trial.

"He turns and spits," Officer Waller said. "He hits me in the eye and mouth. Then he told me he has AIDS. I immediately began looking for something to flush my eyes with."

During Tuesday's guilt/innocence phase of the trial, Mr. Campbell testified in his defense and offered to enter his feet as evidence to prove he did not kick the squad car's computer screen, said Aja Reed, a prosecutor who worked on the case.

On Wednesday, as another Dallas officer testified about Mr. Campbell spitting on him in an unrelated incident, Mr. Campbell jumped up and began yelling at the officer and prosecutors, according to another prosecutor in the case, Jenni Morse.

"He said to the officer, 'You're a liar. You're all railroading me. I'm an innocent man.' "

Dallas County sheriff's deputies took Mr. Campbell into custody and placed him in a holding cell, where he listened to the remainder of his sentencing trial. But not before he said to prosecutors, "You're going to rot in hell," Ms. Reed said.

Russ Hendrichs, Mr. Campbell's attorney, could not be reached for comment Wednesday afternoon. Because the jury found that Mr. Campbell's HIV-positive saliva was a deadly weapon, he has to serve half of his sentence before he is eligible for parole.

Officer Waller said he was elated with the jury's decision.

"I know it sounds cliché, but this is why you lock someone up, so our streets are safer," Officer Waller said. "Without him out there, our streets are a safer place."