UK: The return of the "HIV Monster"

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

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

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

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

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

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

 

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

The press release states:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Couldn't agree more, Krystle.

Belgium: First criminal conviction under poisoning law, advocates caught unawares

Last week saw the first successful prosecution for criminal HIV transmission in Belgium. The case surprised the main HIV support organisation, Sensoa, who were only informed of the case by the media because neither complainant nor defendant (both of whom were African migrants) had contacted them for support or legal advice.

Details of the case are relatively sketchy and only available in Dutch-language news reports, available here (English translation via Google) and here (English translation via Google).  A more detailed news story appeared following the man's conviction in De Standaard, but I am unable to translate it.  They have been supplemented via a colleague working on the issue at Sensoa.

The facts in brief.

A 54 year-old man, originally from Angola, was found guilty of 'knowingly infecting' his former wife (originally from Congo, and thought to be significantly younger) with HIV via the existing criminal law of poisoning and sentenced to three years in prison, two of which are suspended.

The couple met and married in 2004 and the woman discovered she was HIV-positive during pre-natal testing in 2005.  Court evidence showed that her husband was diagnosed in 1994, whilst married to his first wife, but that he was in deep denial of the diagnosis because, according to his defence lawyer, Rafael Pascual

My client is very religious. He prayed for healing. His first wife and the children he had with her never became infected. Therefore he assumed that his prayers were answered. Without ever taking drugs.

Pascual also unsuccesfully argued that the complainant could have been infected by someone else, and that scientific evidence of his responsibility for infection was inconclusive.

The prosecutor had asked for five years in prison, two suspended, but the court gave a more lenient sentence.

Sensoa's position – and difficulty in reaching marginalised populations – was highlighted in this article in De Standaard (English translation via Google) published last Thursday, the day of the verdict.

Sensoa, the Flemish service and expertise in sexual health, is concerned about the matter in Huy. "We are not asking for criminal prosecutions," said spokesman Boris Cruyssaert. "In neighboring countries, we see that it is counterproductive. It just makes the taboo, because nobody dares to know if they are infected."

"That does not mean that HIV patients should not share responsibility [for HIV prevention]," says Cruyssaert. "Only in the case of intentional transmission [should the criminal law be used]. The cultural aspect [of HIV] is often deeply rooted faith. Of course prayer does not eliminate HIV, but the Angolan man is very religious. He was really convinced that his prayers were answered. "

Sensoa tries to reach other cultures, with accessible information [about HIV] but that is not easy. Since 2009, in an opinion by the National Council of the Order of Physicians, a doctor can, in exceptional cases, inform the partner of an HIV patient [if there is a belief of exceptional risk of harm].

The case highlights three important issues.

First, the general law can always be applied even when it appears that a country has so far been spared prosecutions.

Second, people with HIV who have no connection with HIV support services may feel that the criminal law is their only recourse to justice, when appropriate counselling may have mitigated the sense of betrayal felt by the complainant.

Third, cultural issues (including faith-inspired denial) can have a major impact not only on disclosure, but also acccess to treatment, care and support.

Prior to this case, only two individuals had approached Sensoa for legal assistance, and these were civil cases, involving custody issues. In both cases the HIV-positive status of the father was used in court in an attempt to take away the father's rights.

Two previous attempts at using the criminal courts for HIV exposure or transmission in Belgium were unsuccessful. One involved an HIV-positive man prosecuted for not disclosing to his girlfriend who subsequently tested HIV-positive, and a 2007 case involved an HIV-positive man from Ostend who was prosecuted for attempted murder for not disclosing to his boyfriend, who remained HIV-negative.

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.

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.

France: Man sentenced to five years for alleged transmission during one-off unprotected sex encounter in 1999

A 40 year old man has been found guilty of administering a harmful substance to one's spouse or common law husband/wife with the consequence of lifelong impairment ("administration de substance nuisible par conjoint ou concubin ayant entraîné une infirmité permanente") for not disclosing his HIV status to a former partner in 1999, who subsequently was also diagnosed HIV-positive.

The Assize Court of the Lower Rhine in Strasbourg sentenced him to five years imprisonment, of which two years are suspended. The attorney general had requested five years in prison. The fact that the man was the longtime companion of the complainant during the commission of the 'crime' is an aggravating factor in French law that increases the maximum penalty from 10 to 15 years' imprisonment.

This also explains his appearance before the Assize Court (Cour d'assises) which is reserved for trials for more serious crimes.

I was alerted to the case  by a blog reader, details of which are available in French only via two stories on Le Figaro posted last Thursday and Friday. 

What is unusual about the reporting in this case is that both complainant – Magali Gillmann – and accused – Emmanuel Baudard – were named in the Thursday story in Le Figaro.  This is the first time I have ever seen a complainant named (other than police officers assaulted via saliva or bite in the United States.)

Another unusual aspect of the case is that Ms Gillmann, 38, testified that she only had unprotected intercourse once with the accused, in October 1999. She says she fell ill two months later but it was not until 2006 that she learned that the accused knew his HIV status during the time of their relationship, which ended in 2003, and which led her to complain to the police.

Mr Baudard says he was infected during his military service in 1988-1989, but only began antiretroviral therapy in 2008. He admitted having known his HIV status at the time of the unprotected encounter but said he believed that was Ms Gillmann also HIV-positive because both were injecting drug users at the time and because she agreed to unprotected sex.

This does beg the question of whether the prosecution was able to prove a cause-effect relationship between Mr Baudard's behaviour and Ms Gillmann's infection.  There is no apparent use of phyogenentics which could rule out that their viruses are linked, or to suggest a linkage.

Her diagnosis two months following the single episode of unprotected sex - which, on average, carries a very low transmssion risk of 1-in-1250 – could be purely coincidental, and she may well have acquired HIV via needle sharing or from another sexual partner.  Neither appear to have been used as a defence in the case which appears to have focused solely on Mr Baudard's responsibility to disclose his HIV-positive status prior to a single instance of unprotected sex and highlights difficulties with disclosure.

The discussions highlighted the difficulties Thursday, leading the jury to consider the intimacy of the relationship of two partners who now hold conflicting versions.

The complainant said she always had safer sex with Mr. Baudard, except once, when he assured her that she had nothing to fear.

The accused acknowledged he knew he was carrying the AIDS virus, and claimed to have infected his girlfriend due to a misunderstanding, and cowardice. "I told her I could not do it without a condom, she said 'OK', and we did. For me, it meant she was [HIV-positive] like me," he told the court.

"You're too optimistic," said his lawyer Herve Begeot. "Why were you not more explicit, why not clearly tell the victim you were HIV positive?" "I ran out of courage," said Mr. Baudard.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Canada: 2 cases - Alberta man gets three years for non-disclosure; woman refugee arrested and charged in Ontario

A 44 year-old man from Edmonton, Alberta who pleaded guilty to aggravated assault for not disclosing that he was HIV-positive during a one-off consensual encounter with a woman – whilst his viral load was undetectable – has been has been sentenced to three years in prison.

According to the Toronto Sun report, he had been charged with aggravated sexual assault but was "allowed to plead guilty to the lesser offence of aggravated assault."  The report doesn't mention it, but obviously the woman did not test HIV-positive given the insignificant risk of transmission.

Apparently, the man's roommates turned him in.

Prosecutor Avril Herron told court Gilbertson was arrested June 3 after police were called by his roommates, who had come home and found him having sex with the woman and were concerned about his HIV status. Herron said the woman was drunk and initially found passed out and had some problems telling police the details of what exactly had happened.

In words that parallel Nadja Benaissa's recent statement to a Darmstadt court, he told the court that he had "made a bad choice," but said "in no way was it deliberate."

The provincial court judge questioned Gilbertson's guilty plea after he said he didn't mean to do it. However, he admitted he did not tell the woman he was HIV-positive. Gilbertson also told the judge he takes medications for the disease, which he claimed is barely detectable on tests, and said he has a full support team in the community looking out for his needs.

Judge Marilena Carminati appeared to have no sympathy for the man (nor a finer understanding of the impact of treatment on infectiousness – although perhaps a better lawyer would have helped), and as well as sentencing him to three years in prison ordered him to submit a DNA sample for the national DNA databank and, bizarrely, prohibited him from possessing weapons for life.


Meanwhile, a 32 year-old woman of Zimbabwean origin was arrested in Brampton, Ontario on August 10th for allegedly not disclosing that she was HIV-positive "with at least one sex partner on more than one occasion" during sex with a man who has since tested HIV-negative.

Details are sketchy, and oddly, the case only appears to have been reported on New Zimbabwe.com, a UK-based paper for the Zimbabwean diaspora.  The report states that that woman "arrived in Canada from Indianapolis, United States, as a refugee in 2008" but doesn't say when she left Zimbabwe (or why). 

The woman will face aggravated assault charges on September 13th at Toronto College Park courts and is currently out on "stringent bail conditions" that mean she is currently under house arrest.

Germany: Nadja Benaissa trial begins on Monday

Update 1: August 13 2010
The trial of No Angels singer, Nadja Benaissa, now 28, begins this Monday, August 16th in the Darmstadt youth's magistrate court (Jugendschöffengericht). 

She faces accusations of one count of grievous bodily harm for allegedly not disclosing her HIV-positive status prior to unprotected sex in 2004 with a complainant who subsequently tested HIV-positive, and four counts of attempted grievious bodily for allegedly not disclosing her HIV-positive status prior to unprotected sex between 2000 and 2004 with this man, and two others.  If convicted of all charges she faces a maximum of ten years in prison.

Deutsche AIDS Hilfe have recently produced information in English regarding the specifics of Germany's HIV exposure and transmission criminal laws.  They highlight the difficulty in proving such allegations and also that most allegations follow the breakdown of a relationship.

In Germany, there is no special law that makes the transmission of HIV a punishable offence. Judgment is made in accordance with Sections 223 and 224 of the Criminal Code. Intentional or negligent transmission of HIV is bodily injury according to the Criminal Code. Unprotected sex that carries no infection, is considered attempted bodily injury and is also punishable. Accordingly, people with HIV have to take the necessary measures to protect their partners. The obligation is considered satisfied when the rules for safer sex are followed. There is then no threat of criminal consequences – not even when an infection is transmitted regardless, because the condom broke or slipped, for example.

People with HIV are liable to prosecution if they have unprotected sex and their partner does not know about their infection. The legal position here is clear. In most cases that go to court, however, the situation is more complicated. Often a couple quarrels and breaks up, then one files a lawsuit against the other.  It is often the case that the partner knew about the HIV infection.  If both partners mutually chose not to practice safer sex in these kinds of cases, then the HIV-positive person is not liable to prosecution. These arrangements are very difficult to prove in court, however. Arrangements are often made when those involved are not thinking clearly, for example, because they are in love or high on drugs. But some couples also consciously decide not to use condoms above all when the viral load of the HIV-positive partner is below the detection limit. The risk of infection is then very small.

Bild.de reported in May that Nadja had cancelled all performances with the No Angels (who have been touring Germany to promote their new album, Welcome to the Dance) due to ill health.

Original post: February 13 2010

Nadja Benaissa, 27, one of the members of Germany's biggest girl group, No Angels, has finally been charged with one count of aggravated assault and two counts of attempted aggravated assault for allegedly having unprotected sex with three men without disclosing that she was HIV-positive. One of the men has tested HIV-positive.

[Click here for a site refresh with all postings on Ms Benaissa]

Ms Benaissa is thought to be the first woman to be accused of criminal HIV exposure/transmission in Germany (there have been around 15 cases so far, all thought to have involved men), and is only the second celebrity in the world to face such charges (the first being US-born Canadian football player, Trevis Smith).

Given that the Darmstadt public prosecutor has waited ten months following her April 2009 arrest, it is my opinion that he is satisfied that he can obtain a conviction for all three charges. This would involve proving that:

• she was aware that she was HIV-positive;
• she knew that she could transmit HIV via sex;
• she did not disclose her HIV status prior to sex that risked transmission; and
  
• for the aggravated assault charge, that she - and only she - could have infected the man who tested HIV-positive. This is not easy to prove, and would require all of the man's previous partners to be located and tested for HIV, as well as expert testimony highlighting what scientific analysis is able to show, and what it can't show.

Coverage is likely to be global – it was in the weeks following her arrest – but for today has been limited to the German press. The best English-language article comes from Deutsche Welle, which adds just one extra piece of new information. Since she was under 18 when the alleged acts took place (in 2000) she may be tried as a juvenile. Nevertheless, she could still face up to ten years in prison if found guilty of all charges.

Given her high profile, it is likely that the authorities want to make an example out of her, to warn other people living with HIV that non-disclosure before unprotected sex is unacceptable. They may think they are doing HIV prevention a favour, but this may backfire and lead to a false sense of security from people at risk, who may assume that no disclosure means no HIV risk.

I'm also concerned that unless her defence gets expert advice regarding proof of transmission, she may end up pleading guilty without knowing for certain that she did (or did not) infect the man who is now HIV-positive.

I also worry that, as woman - and a recently-diagnosed young woman at that - she should not have had to carry the burden of HIV prevention solely on her shoulders. That is no legal argument, but definitely a moral and ethical one that requires highlighting.

Canada: Vancouver police hunt one man, add more charges to another

In Vancouver, two different men have been accused of not disclosing their HIV-positive status prior to sex with their female partners. Local media are having a field day.

The first, a Caucasian man in his late 20s, was arrested on May 19, according to a June 4th CBC News report following which North Vancouver police issued a press release that included the man's name and photo which appeared in news reports throughout Canada.

"Police have what is called a duty to warn when it comes to things like this and that is one reason we put out a name and photograph so quickly," [Const. Michael] McLaughlin told CBC News. "One of our primary responsibilities is keeping people safe, and enforcing the law goes along with that."

The fishing expedition has now turned up four further women who also claimed the accused did not disclose before sex, according to June 30th CBC News report that continues to carry the man's photo.

RCMP in North Vancouver are recommending four more charges of aggravated assault against [name of accused], who was first charged with the offence in May after police said he exposed his partner to the virus that causes AIDS without telling her. Since that charge was laid, four other women have come forward with enough evidence for investigators to recommend four more charges against [him], RCMP said in a release Wednesday.

The accused is out on bail "under court-imposed conditions that require him to tell any potential partners that he is HIV-positive."

Vancouver's tabloid, The Province, tells a rather different story - at least the headline appears to tell a different story.

Four more women say they were infected by HIV-positive man

Actually, no! They didn't. The actual story in The Province is very similar to CBC News' coverage - there is no mention of HIV-positive tests or accusations of infection.

The CBC and The Province coverage also includes the name (but not the photo) of a second man, a 38 year-old with an African name, from the Vancouver suburb of New Westminster. The man, who faces three counts of aggravated sexual assault for either not disclosing to one woman three times, or three women once, is presented by the police, and therefore the media, as a dangerous man on the loose.

CBC reports it this way

The offences date back to May of 2006 and there is a concern that [he] may have headed to Eastern Canada and will continue to have sex with women without telling them about his condition, police said.

The Province makes him seem much more like a calculated serial infector

New Westminster Mounties are hunting for 38-year-old [name of accused], who has been charged with three counts of aggravated sexual assault after having sex with three women while knowing he was HIV-positive. Crown counsel has issued a Canada-wide warrant for [his] arrest, as police believe he may have traveled to eastern Canada. The offenses he is charged with date back to May 2006, and police are concerned [he] may plan to put more women at risk.

These BC 'name, shame and create fear' cases are in direct contrast to the recent Vancouver court case where the accused was acquitted, and where the judge ordered a publication ban on the name of both the accuser and the accused.

They also contrast with a recent case in Edmonton, Alberta, analysed in an April 23rd Xtra.ca story, where a 50-year-old HIV-positive man was charged with aggravated sexual assault after allegedly failing to disclose his status to his female partner.

The piece quotes a police spokeswoman who explains that they did not release name or photo of the accused in order to protect the man's partner.

“Releasing any details would without a doubt identify the victim. We are not releasing the name of the accused strictly to protect the identity of the victim. This is not a case of an unknown male with HIV forcing sex on women. The sexual intercourse in this case was consensual. However, the male failed to inform the woman that he was infected with HIV."

In this case the accused man was released from custody with a trial set for March 2011.

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

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

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

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

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

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

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

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

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

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

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

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

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

New Zealand: African migrant sentenced to three-and-a-half years for HIV transmission

A 34 year-old HIV-positive New Zealand citizen originally from the Democratic Republic of Congo has been sentenced to three-and-a-half years in prison for grievous bodily harm with a concurrent six months for criminal nuisance. The charges stemmed from not disclosing his HIV status before having unprotected sex with an Auckland woman, who is now HIV-positive.

I reported on the man's arrest in March, during which time the police went on a 'fishing expedition' for more complainants. It seems none were found. Interestingly, contrary to the media frenzy surrounding the bisexual Auckland man who currently faces 28 HIV exposure and transmission charges relating to 14 people, reporting on this case was extremely low-key. In fact, the man was sentenced on October 16th and this is the first news report I have seen about it.

Notably, the Sunday Star-Times article published today which reports the man's sentencing does not mention any identifying characteristics of either complainant (which is usual) or defendant (which is rare outside of the Netherlands). It is possible that since the earlier report states they had a child together, this is for the protection of the child.

The man and woman cannot be identified and other details about their relationship and where they live have also been suppressed.

What is also interesting about the article is that it includes details from the sentencing notes of Judge L Moore of Waitakere District Court which provides some insight into how little the criminal justice system cares why someone living with HIV has not disclosed their condition to their long-term sexual partner.

[T] he man insisted he did not have HIV even after his girlfriend noticed a letter from the infectious diseases centre, a nurse spoke to her about it, and one of his former partners sent her a warning text message. He continued to deny having HIV after the girlfriend discovered she had been infected...

"You blatantly lied to this trusting woman so that you could continue to have unprotected sex with her, knowing full well that by doing so, you were putting her at risk of a terrible outcome," [Judge Moore told the man]. You cared for her so little that you were prepared to gratify yourself at a risk to her life. In a way, the fact that this was a long-term relationship, the fact that this woman loved and trusted you, makes it far worse than if it were just a casual fling with somebody who was just out for a bit of sexual adventure. The breach of trust here is very great."

[...]

The man was going through a difficult time at that point [of his 2005 diagnosis], the notes say, as his marriage (which had produced two children) had come to an end. The man moved in with his victim as a boarder but their relationship became physical and they were together for at least two years.

This was the first long-term relationship the woman had been in, Judge Moore said. It seems the couple used condoms for a time before the woman went on the contraceptive pill. From that point they had unprotected sex, which the man preferred.

This man was in serious – and I mean serious – denial, and yet the court imagines that the man "blatantly lied to this trusting woman" for no other reason than to "continue to have unprotected sex with her." Since there is no transcript of the trial, or reporting of whether the man gave testimony or an explanation for his behaviour, I can only speculate that his non-disclosure was not solely to continue having unprotected sex.

In their brilliantly insightful article, Reckless Vectors: The Infecting ‘Other’ in AIDS Law, Heather Worth, Cindy Patton and Diane Goldstein write:

"...lack of disclosure has been described legally as fraud, criminal negligence, criminal nuisance, and many other charges in additional jurisdictions. However, these charges assume that everyone can disclose their HIV status at the time of every sexual act. Numerous recent studies demonstrate that there are many valid cultural reasons why individuals do not disclose their HIV status, including fear of domestic violence, fear of familial or partner abondment, and community rejection. These real impacts make disclosure of one's status nearly impossible for many, particularly for newly diagnosed individuals who are already trying to absorb the shock of their possible death. For some individuals it is likely that nondisclosure was tied to denial of HIV status and what the implications of that status might mean in terms of safe sex practices."

Disclosing that you are HIV-positive is not an easy task. It requires coming to terms with your own diagnosis and accepting it. Then it requires exposing one’s own fears and concerns and the ability to express one’s feelings. It is a task that requires a degree of trust that the response will not be negative or stigmatising (itself a difficult task since HIV-related stigma is also often internalised). Sharing this type of highly personal information also requires that a certain expectation of confidentiality or discretion can be relied upon. For many people HIV disclosure is not an event or a one-time conversation. It is a process that takes time and constant communication.

It is tragic that a case like this resulted in an HIV-positive diagnosis for the man's partner and a prison sentence for the man. If only he had had more support from his HIV clinic – which knew of his mental health difficulties – perhaps both of these could have been avoided.

Finally, I'd like to quote from another great article, Taking the blame: criminal law, social responsibility and the sexual transmission of HIV, written by Matthew Weait in 2001, which I just read for the first time yesterday.

But how dare I, if this is my approach and am infected, blame my partner – how dare I argue that simply because he knew his HIV+ status, he is the one who was at fault in any socially meaningful sense? I dare, because the law allows me to, because the law ignores my risk-taking, my irresponsibility and legitimates my gullibility. I dare, because in law, knowledge operates solely and narrowly as a basis for determining the fault of the person who is (in legal terms) responsible for causing the harm."

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

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

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

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

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

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

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

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

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

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

O reporter.com reports that

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

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

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

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

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

US: Michigan man gets nine months for HIV exposure

A 21-year-old from Bay City, Michigan, who pleaded guilty under Michigan'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 has been jailed for nine months. The age of consent in Michigan is 16, so this was not statutory rape.

The Midland Daily News reports that Isaiah Diaz

had unprotected sex with a 16-year-old girl on June 13, and told her the next day that he was infected with AIDS. She talked to her parents, who in turn notified police. The teen was tested for AIDS, but the results of that test are sealed, police said. Diaz was arrested and was arraigned on June 15. The case was bound to the circuit court on July 13. He entered a guilty plea to the offense on Oct. 22. Court records show state guidelines based on the offense and Diaz' previous record called for up to nine months in jail. He was sentenced by Midland County Circuit Court Judge Michael J. Beale to serve nine months in jail with credit for 152 days, to be monitored on probation for three years, and pay a total of $1,250 fines and costs. The Midland attorney appointed to represent Diaz, Lisa Blanton, asked that he be subject to counseling and substance abuse treatment while incarcerated, records show. Beale ordered jail staff to complete a mental health evaluation.

The story was also covered by Todd A Heywood of the Michigan Messenger who highlights that

Some lawmakers in the state House have started talking about possibly revisiting the law, including State Rep. Rick Jones, a Republican from Grand Ledge.

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.