Sweden: Majority of MPs want to reform HIV disclosure obligation and 'HIV exposure' criminal liability

Two articles commemorating 30 years of HIV in Sweden in Svenska Dagbladet by journalist Tobias Brandel suggest that public – and political – opinion is being positively impacted by a two-year campaign by RFSU (the Swedish Association for Sexuality Education), HIV-Sweden, and RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) to raise awareness and advocate against overly-broad HIV criminalisation.

The first article, with the headline, 'HIV-positive convicted harsher in Sweden' focuses on the fact that although HIV has been transformed from a fatal to a chronic disease, more people with HIV have been jailed in Sweden in the 2000s than in the 1980s and '90s combined.

The second, with the headline, 'HIV-law divides Government' highlights the fact that a majority of MPs want to revise both the Communicable Diseases Act (with its 'information obligation') and the criminal law that currently allows prosecutions for people with HIV for potential or perceived HIV exposure as well as transmission. However, there are divisions within both the coalition Government and the leading opposition parties.

Since these articles are the most up to date descriptions of the current moves towards law and policy reform in Sweden, I am including (in English via Google translate, with slight amendments for clarity) the full text of both articles below.

This is the Google-translated version, read the original article here

When Joakim Berlin received his diagnosis, HIV was a death sentence.

"The big question my relatives asked was when I was going to die. Of course, I thought it would go pretty quickly," he says.

It was 1991, five years before the arrival of antiretroviral drugs. Today he leads a "totally normal" life.

"Sometimes I get side effects such as cramps and fatigue. But HIV's biggest impact has been on my social life. Human ignorance is problematic. The fear is still there." Neither legislation nor case law has followed the progress of medicine. Although HIV has been transformed from a fatal to a chronic disease more people with HIV have been jailed in Sweden in the 2000s than in the 1980s and '90s combined. Anyone who has HIV - and knows it - and has unprotected sex with another person is at risk of prosecution for 'aggravated assault', 'attempted aggravated assault' or 'creating danger'.

The last year has seen four such convictions in Sweden,  according to a review by Svenska Dagbladet. All have resulted in prison sentences - even though they were not convicted of infecting their sexual partners. Only in one case was found to be HIV-positive plaintiff, but failed to clarify whether it was the offender who infected him.

A total of 44 people have convicted of crimes related to HIV since the late 1980s. This makes Sweden one of the countries in the world with the largest number of prosecutions in relation to the number of HIV-positive people, according to the Global Criminalisation Scan.

Sweden was also singled out as a bad example of how the law is used against people with HIV at the International AIDS Conference in Washington last summer. Even UNAIDS, the UN organisation for HIV / AIDS, criticises Sweden.

Ake Örtqvist, an infectious disease physician for Stockholm County Council, is critical of the Swedish court's reasoning over risk and intent.

"The courts judge very differently which is very unfortunate. Courts and prosecutors should have an increased knowledge about the disease and the concept of risk," he says.

Last year Denmark abolished a law that criminalises people with HIV referencing the current effective HIV drugs.

"The impact that treatment has in lowering viral load and infectiousness is very real, even if it is scientifically always hard to say zero. I think the courts reasoning is odd and they should embrace the fact that infection risk today is extremely small. One must ask whether it is reasonable to judge according to the Penal Code when the infection is well controlled and transmission has not occurred," said Jan Albert, Professor of Infectious Disease at the Karolinska Institute. In other words, the virus is spread very rarely by "HIV-men" as the condemned is usually called in the media. The real vectors are people who do not know they have HIV and therefore do not receive treatment.

According to the Communicable Diseases Act HIV-positive individuals must inform their sex partners of their status before having sex. Although it is not possible to judge according to the Infectious Diseases Act so courts often refer to information obligations.

Both RFSL and RFSU argue that the law is actually counter-productive.

"Of course you should tell if you have HIV before sex, but you should not risk punishment if you fail to do so. Criminalisation can also lead to a false sense of security, to believe that the person who is not saying anything does not have HIV," says RFSU President Kristina Ljungros.

She also believes that the prosecutions may deter people from testing. Even the UN-backed Global Commission on HIV and the Law concludes in a new report that criminalisation contributes to fewer people knowing their HIV status.

Preliminary data from a new U.S. study, received by Svenska Dagbladet, supports these ideas. The Sero Project, in collaboration with Eastern Michigan University interviewed more than 2000 HIV-positive individuals in the United States. Half of the respondents believe that it is reasonable to avoid HIV testing for fear of prosecution, and one in four say they know one or more individuals who chose not to test for fear of being prosecuted.

Joakim Berlin has lived with the virus for over 20 years and works at Positive Group West [part of HIV Sweden] as well as being a member of RFSL's board.

"It is the responsibility of both parties to protect themselves, so you cannot have laws that criminalise only one party," he said.

Is it not reasonable to tell your sexual partner so that he can make an informed decision?

"I have the responsibility to ensure that you do not get HIV, and you have the responsibility to ensure that you are not putting yourself at risk," he says. "The law places full responsibility on the HIV-positive person while everyone else thinks that they can do whatever they want without consequences. Most people get HIV from someone who does not know their HIV-positive status."

This is the Google-translated version, view the original here

Legislation and case law surrounding HIV has not kept pace with developments in medicine, as Svenska Dagbladet showed yesterday. Although modern HIV treatment reduces infectiousness dramatically, the law is the same as in the 1980s. There is now a majority in parliament who want a review of the Communicable Diseases Act, which forces people with HIV to disclose their status before having sex.

"We think that the issue should be revisited. Our knowledge about HIV is changing rapidly. We can not have laws that are outdated," says Barbro Westerholm, Liberal Party social policy spokesperson.

As previously reported to Svenska Dagbladet both infectious disease doctors and scientists are critical of Swedish courts that sentence HIV-positive people to prison for unprotected sex, despite there being no alleged transmission. As well as revisiting the Communicable Diseases Act, the Liberal Party would  like there to be a review of judicial practice.

The position of the Moderate Party is that there is no need for such a review, but the Party is now in discussion.

"We have not changed our minds, but we're talking about it. It is clear that we must keep up with new facts and analyses. There is a debate," says Mats Gerdau, a member of the social committee [which would recommend such a review to the Government].

The Centre Party is open to an amendment of the Penal Code in respect of how the courts reason about intentional and negligent [states of mind] - but they are clearly against removing the Communicable Diseases Act's notification requirement.

"There is an information obligation for all diseases that are generally hazardous. It is completely illogical to say that it should be removed only for HIV," says Anders W Jonsson, chairman of the social committee.

The Christian Democrats see no need for any kind of review. All four Alliance parties must agree before the law can be reviewed. The [opposition] Social Democrats, The Green Party and the Left are all clear that they want the information requirements to be removed for HIV.

"The law is counterproductive. It places responsibility solely on the person with HIV. It is a repressive law which, at worst, means people do not get tested," says Eva Olofsson (Left), also a member of the social committee.

Agneta Luttropp (Greens), another member of the social committee, believes that the law creates a false sense of security.

"The responsibility to protect is on both sides, on both the person who may have HIV and the person who does not. We hope and believe that a change in the law could lead to people being more invested in having protected sex," she says.

However, the Social Democrats want to keep the information obligation and do not believe that judicial practice needs to be reviewed.

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.

US: Majority of gay US men support criminal non-disclosure laws

The overwhelming majority (70%) of HIV-negative and untested men (69%) in the United States support prosecutions for not disclosing known HIV-positive status before sex that may risk HIV transmission, according to a new study by Keith J. Horvatha, Richard Weinmeyera and Simon Rosser at the University of Minnesota, Minneapolis.  Even more disturbing is the fact 38% of HIV-positive men endorsed criminalisation.

The most worrying finding is that suppport of non-disclosure laws strongly suggested a reliance on disclosure as an HIV prevention method. As I have discussed in HIV and the criminal law, this is unreliable and problematic. 

There's a summary of the study's findings at aidsmap.com and the full text article can be downloaded here.

Sweden: 20 year-old man previously convicted of HIV exposure arrested again

A 20 year-old Swedish man who was released from prison in January 2009 after serving 16 months of a two-year sentence for HIV exposure has been arrested again following allegations that he had unprotected sex without disclosure with a 15 year-old girl.

Although the case is briefly summarised in English in a report in The Local, much more detail is provided in the Swedish tabloid, Aftonbladet.

According to this report, the young man from Linköping was originally diagnosed in April 2007, at the age of 17, after having had unprotected sex with his HIV-positive girlfriend at the time, despite knowing her HIV status.

Following his diagnosis, he appeared to go on something of a bender, sleeping with seven young women without disclosing his status or wearing a condom. None became HIV-positive. He was arrested in September 2007 (previously reported on my blog here) and the case went to court in January 2008.

His defence was that he was in denial.

I rätten försvarade han sig med att han var chockad och inte kunde ta till sig informationen. (In court he defended himself that he was shocked and could not absorb the information.)

He was found guilty of attempted aggravated assault and sentenced to two years in prison. He was also ordered to pay 40,000 Swedish Krona (around €4000) in damages to each of the seven young women.

Released after 16 months' prison, in January 2009 he moved back to Linköping.

Last Friday, he was picked up for questioning by police following a complaint from a 15 year-old girl that he had had unprotected sex without disclosing his HIV status.

Prosecutor, Britt-Louise Viklund told Linköping District Court:

Han erkänner och skyller på att han var alkoholpåverkad. Han hade tillgång till kondom men använde den inte, säger Britt-Louise Viklund. ("He recognises and blames it on the fact that he was under the influence of alcohol. He had access to condoms but did not use them.")

His defence lawyer argued, unsuccessfully, that her client had changed.

Han är djupt ångerfull över det här, han har förändrat sitt beteende mycket den senaste tiden och han menade att det inte finns någon risk för fortsatt brottslighet, säger hans advokat Morgan Gerdin. (He is deeply remorseful over this: he has recently changed his behaviour and says that there is no risk of further crime," said his lawyer, Morgan Gerdin.)

However, the court decided that the risk was so great that he would expose more women to the risk of infection that he has been remanded in custody until his trial.

The case reveals much about the difficulties of a punitive approach to HIV non-disclosure and the Swedish system's inability to deal with a young man unable to come to terms with his diagnosis.

Surely prison is not working as a deterrent, nor has it rehabilitated him. Some of the comments from readers of The Local suggest far more draconian measures, including a tattoo on his forehead, castration and a slow a painful death. I have reported the latter suggestions (such as "Cover him in gasoline and BURN him!") as hate speech under The Local's 'report abuse' policy. Let's see if they remove such comments.

Issues such as inflammatory media coverage of HIV exposure/transmission cases, and how public health laws are also being used (and abused) in such cases were discussed in Stockholm in June 2009 at an excellent one-day symposium, HIV and Criminal Law, organised by HIV-Sweden.

You can download a pdf report of the meeting here or email HIV-Sweden to request a hard copy.

US: Two POZ editors editorialise eloquently on criminalisation

Two excellent, insightful articles by POZ founder, Sean Strub, and POZ editor, Regan Hoffman, published on the same date last week, highlight the issues of personal responsibility and HIV disclosure that are crucial to the wider criminalisation debate.

I'm including the first two paragraphs of each below. Click on the headline to read the full article.

Should people who spread HIV go to jail?
by Regan Hoffman
The Daily Beast (blog)
May 7th 2009
A Canadian court has handed down the world’s first murder conviction for knowingly exposing and infecting someone with the AIDS virus. But as an HIV-positive woman, I know that the man who infected me only deserves half the blame.

As a woman who contracted HIV from a man who claimed to have been unaware he was HIV positive, I have never entirely blamed him. Prior to being with him, I asked him questions aimed at identifying his risk factors for having HIV. Based on my trust of him, and his answers, I took a calculated risk and had unprotected sex with him. I rolled the dice—and lost.

Media hysteria and HIV criminalization
by Sean Strub
POZ Web Exclusives
May 7th 2009

Germany’s media have recently been in a frenzy over the arrest of pop star Nadja Benaissa. Her offense? Failing to disclose her HIV-positive status to three partners with whom several years ago she had unprotected sex (presumably intercourse without a condom). One of her accusers claims he acquired HIV from her.

In the United States, we have had a similar phenomenon when media-created hysteria—in conjunction with ignorant or ambitious prosecutors and politicians—frightens the public and brands people with HIV solely as vectors of disease or as “AIDS monsters.” This has prompted more than half the states to pass criminalization statutes, resulting in wildly unjust prosecutions and sentencing.

US: Excellent Michigan Messenger article on abuse of ineffective HIV disclosure laws

Here's a truly excellent, and sobering, article from the Michigan Messenger - an independently-produced political news daily featuring original and investigative reporting – that spells out in an interview with an African-Amercian man convicted under the state's HIV exposure law – just how these laws are open to abuse, both by individuals and the criminal justice system itself.

In brief, Michael S. Holder was accused of not disclosing his status before having sex by his (white) ex-girlfriend. Five members of the jury admitted during jury selection that they were prejudiced either against inter-racial relationships or against African-American men, but were allowed to remain on the jury. The complainant retracted her original testimony on the stand, and admitted that Mr Holder had, in fact, disclosed his HIV status before they had sex.

On Dec. 3, 2001, the jury of 11 white women and one white man — including the five jurors who noted their opposition to inter-racial relationships on their questionnaires — voted to convict Holder of violating the disclosure law. He was sentenced to 10-15 years in prison, three times the recommended sentence. That sentence was reduced in 2003 to 7 1/2 to 15 years because of an appeal that the state Attorney General’s office failed to respond to. But Holder’s pleas for justice in regard to incompetent counsel were denied by the Michigan Court of Appeals and the Michigan Supreme Court. A writ of Habeas Corpus filed in federal court was denied and is currently slated for a hearing in the U.S. Court of Appeals for the Sixth Circuit in June.

The article also includes a brief history both of how Michigan's HIV exposure laws came to be enacted, and US HIV-specific laws in general.

In 1990, the Ryan White Care Act required states receiving federal funds for the assistance of those impacted by HIV to certify the state had laws to prosecute HIV transmission. By the time the bill was sent for reauthorization in 2000, this mandate was removed, because 32 states had passed laws specific to HIV, and all 50 had certified they had criminal laws to address HIV transmission.

HIV is the only virus with a felony attached to it in Michigan. Those persons with human papillomaviruses, which have been linked to cancers, herpes, Hepatitis B and C, and other viral or bacterial infections are not required under state law to disclose their infection to potential sexual partners.

[...]

State Sen. Samuel Buzz Thomas, a Detroit Democrat, toyed with the idea of introducing legislation to expand the disclosure law to include persons infected with Hepatitis B and/or C last session. But the legislation was never introduced, his chief of staff Dennis Denno said. Thomas declined multiple requests for an interview on this topic.

It also includes interviews with Lance Gable, associate professor of law at Wayne State University; Bebe Anderson, Lambda Legal's HIV project director; Jay Kaplan, staff attorney for the LGBT project of the American Civil Liberties Union of Michigan; and, most strikingly, a Michigan Senator.

“By criminalizing sexual activity, it hasn’t been able to protect the public,” said State Sen. Hansen Clarke, a Detroit Democrat. “We’ve [the legislature] got to look at a different policy because the current one is not effective. It could be something counterproductive, but I have to research that more.”

Click here to read Michigan’s HIV disclosure law: Overly broad and open to abuse, by Todd A. Heywood.

Germany: Justice Minister says prosecutor handled Nadja Benaissa arrest properly

Hessian Minister of Justice, Joerg-Uwe Hahn has dismissed all criticism of the actions of Ger Neuber, the Darmstadt prosecutor who arranged for the public arrest and immediate incarceration of Nadja Benaissa, and then issued a press release.

According to the Frankfurter Allgemeine Zeitung (English translation here), he announced on Wednesday that Neuber's actions were "legally and technically acceptable"; that he had been aware of Benaissa's impending arrest two days prior; and that the public interest outweighed Ms Benaissa's right to privacy.

Last Saturday, The Guardian ran an (rather oddly worded, perhaps badly translated?) opinion piece by German journalist Sabine Rennefanz, outlining her criticisms of Neuber's actions, and comparing the case to that of German MP, Joerg Tauss, whose child pornography charges were dismissed.

What is worrying is how the state prosecution made the private case into a public drama. The singer was arrested publicly before a gig in a Frankfurt nightclub and was taken into custody "because of the danger of repetition", as the prosecutor's office put it. The suspect was treated as if it was already proven that she had infected the man that sued her, which is not the case. It is not the first time that a prominent person has been the subject of an aggressive information policy from a state prosecution service, but questions remain: Benaissa was arrested and kept in custody "because of the danger of repetition". But, if it was so urgent, why did they not arrest her earlier? The police had been on the case since June 2008.

When a member of parliament, Joerg Tauss, tried to defend himself against charges of dealing with child pornography, his claims were publicly dismissed by the Karlsruhe prosecutor, Rüdiger Rehring. Legal experts note a change in the information policy: previously prosecutors had silently worked in the background, shunning the public eye, while the lawyers were the celebrities trying to influence public opinion. Now they appear to be trying to limit control and influence reporting, as in this young woman's case.

Uganda: Editorial says both Aziga and his 'victims' were equally reckless

An interesting editorial appeared today in Uganda's New Vision about the use of the criminal law for HIV exposure or transmission in the aftermath of the Johnson Aziga verdict. Mr Aziga was born in Uganda, which is currently debating its own HIV-specific criminal transmission laws.

Self-protection, not law will curb HIV infection

Publication date: Tuesday, 14th April, 2009

A Ugandan living in Canada has been found guilty of murdering his two sexual partners by infecting them with HIV, the virus that causes AIDS.

Johnson Aziga was convicted of first-degree murder of two women and aggravated sexual assault of 11 others. He was sentenced to life imprisonment. In Uganda, the intentional spread of HIV/AIDS is not covered by the Penal Code but the HIV/AIDS Prevention and Control Bill, now in Parliament, which seeks to make it an offence.

Alison Symington of the Canadian Legal Network, says the conviction is troubling because a sexually-transmitted infection is equated to murder.

The case of Aziga raises several legal, ethical and public health issues. Should diseases be legally classified? The Canadian prosecutors say the two women were murdered because Aziga infected them with a ‘slow-acting poison’ since they did not know he had HIV. Would this ‘slow poison’ have been less lethal had the women known Aziga’s health status? What was the women’s HIV status before they had sex with Aziga? The Supreme Court of Canada in 2005 ruled that one partner cannot give consent for sexual relations if the other fails to disclose an HIV infection.

Depending on partners’ ‘disclosure’ of their HIV status is very risky and should not be encouraged. Aziga’s case proves that AIDS is incurable and, therefore, everybody must take care of themselves. Aziga did not rape the women he infected.

They consented to unprotected sex with a person whose HIV status they did not know when they could have negotiated safe sex or declined his advances altogether. It was not only Aziga who was reckless, but the women as well.

By having unprotected sex with multiple partners, Aziga courted the spectre of contracting drug-resistant HIV and recycling it through reinfection. The only sure way of curbing HIV infection is not through legislation but aggressive sensitisation about self-protection and behaviour change since there is no known cure of HIV to date.

Canada: Soul searching over meaning of Aziga murder verdict continues

This weekend, some of Canada's major newspapers ran editorials and commentaries about the broader issue of HIV disclosure prior to sex that may risk transmission.

The most enlightened, entitled 'HIV/AIDS is just one risk of sexual activity' by Iain Hunter of The Times Colonist (BC capital, Victoria's, local paper), argues that criminal prosecutions divert attention from the fact that everyone needs to practice safer sex and not trust their partners with such life-changing decisions. He concludes:

But the law does seem to put an extraordinary burden entirely on one of two people engaged in a pursuit that both of them know is risky and always has been.

The criminal law isn't sophisticated enough to take account of human passion. It isn't often consulted while clothing drops to the floor.

It doesn't recognize that we're all, now, living with HIV/AIDS.

These days, none of us should believe everything we're told.

Another remarkably enlightened editorial came from The National Post, published last Wednesday after I had written my last posting on the subject. Entitled A fraudster, not a murderer, Barbara Kay argued that although Mr Aziga was morally "despicable" he should not have been charged with, nor found guilty of, murder.

Will all Canadian women sleep easier knowing Aziga no longer prowls the streets in search of prey? No, because "society" was never in danger from Aziga or the afore-mentioned other miscreants. None were rapists: Their victims were women who paid a disproportionately high price for their naivete.

[....]

Aziga's moral crime was fraud with depraved indifference to human life, not murder, for which there must be intent. Two of Aziga's 11 relevant sexual partners died of AIDS-related cancers. But four emerged virus-free. People with murder on their minds do not choose to play Russian roulette with their targets.

The sexual aspect is a red herring in this case. The crime is, or should be, knowingly passing a life-threatening infection to an innocent person by any means. The vehicle -penis, needle, amniotic sac-- should be immaterial.

Let the punishment fit the crime, and let all who commit the crime be equally punished.

Others were far less positive, including 'Guilty as charged' in The Calgary Herald

The conviction should send a strong message to HIV-infected people that playing Russian roulette with a partner's sexual health could end very badly and that the person carrying the virus will be held responsible if and when it does. This is a public-health issue and that means the greater good of the public comes before individual considerations.

and an editorial in The Milton Canadian Champion, which concluded: "The end result of what Aziga did was no different than if he’d shot these women."

However, potentially most damaging was Margaret Wente's article in Saturday's Globe & Mail (which describes itself as "Canada's National Newspaper") that focused exclusively on gay men, even though the vast majority of prosecutions are a result of heterosexual sex.



The article cleverly pulls apart anti-criminalisation arguments by being selective about what we actually say; choosing to quote the most radical or (at least legally) lesser informed anti-prosecution advocates; and finding gay men (including doctors and men living with HIV) who support prosections to quote in the piece.

Peter Troyer, a 37-year-old Toronto man who is himself HIV-positive, has no doubt about where he stands. "It is absolutely reasonable to have a law," he says. "He exposed people to a potentially dangerous virus without their consent. I wouldn't want to live in a society that didn't punish this behaviour at the highest level."

[...]

Brian Cornelson, a primary care physician at St. Michael's Hospital in Toronto, has been treating HIV-AIDS patients for 17 years. "What I tell my patients is that people who are positive have 100-per-cent responsibility to not infect others, and people who are negative have 100-per-cent responsibility not to infect themselves. If everybody took that stance, we wouldn't have any HIV transmission."

He too believes the position of the activist establishment is flat-out irresponsible. "They've put the stigmatization issue in front of the transmission issue," he says. "For me, as a gay man and a physician, this is particularly dismaying."

[...]

But the idea of giving anyone a pass because they're victims makes many people deeply angry. Michael Leshner is one of them. Mr. Leshner, a long-time activist, and his partner were the first gay couple in Canada to be legally married. "The ads give people with HIV-AIDS a moral pass to infect," he says. "Whenever you define a person or a group as victims, the danger is that you excuse away their conduct. It's as if they have no responsibility to themselves or others."

The Globe & Mail had previously published an extremely damning editorial which misrepresented the Canadian HIV/AIDS Legal Network's stance on prosecutions (and on the Aziga case, in particular). They submitted an op-ed on the subject which was declined “because of limited space”. I have lots of space, and so I'm publishing it here, to at least try to balance some of the harm done by writers like Wente.

More light, less heat: it’s time for rational discussion and guidelines about criminal prosecutions for not disclosing HIV

Recently, a Hamilton man with HIV was convicted of first-degree murder. Two women, with whom he had unprotected sex without disclosing his HIV status, were infected; the prosecution argued their subsequent deaths from cancer were linked to their HIV infection.

There is a well-known adage that “bad facts make bad law” — and, seemingly, for simplistic reasoning. In its editorial on the Hamilton case (“Murder, not policy”, April 7), The Globe and Mail fell prey, as did many commentators, to this syndrome, letting the discomfiting facts of this particular proceeding obscure a careful exploration of when it might, and might not, be legitimate to prosecute someone for not disclosing HIV-positive status. In the interests of a rational debate of this difficult issue, we offer the following observations.

It has been suggested that questioning the expansive use of the criminal law, in response to individual prosecutions for HIV exposure amounts to excusing the behaviour of a particular accused. By this same logic, anyone who questions how Canada’s anti-terrorism legislation functions is condoning a given act of terrorism. Both suggestions are fatuous and do a disservice by foreclosing reasoned discussion of how the law should be serving society.

It is similarly intellectually sloppy, but rhetorically convenient, to equate not disclosing HIV status with rape, simply because the same charge is laid as a result of how aggravated sexual assault is currently defined in the Criminal Code. But unprotected sexual intercourse between two autonomous, willing adults, which often carries risks, is dramatically different than violent or coerced sex, which inherently denies the autonomy of one of the parties. To simplistically equate the two does nothing to advance an effective response to either violence against women or HIV exposure.

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

In the “heat of the moment,” do legal requirements influence people’s disclosure or risk behaviour? They may, for some people in some circumstances. But there is no clear evidence to support this claim, and some evidence to rebut it. Surely those who would extend the power of the state to jail people for otherwise consensual sex should point to at least some evidence if they argue that criminal prosecutions can function as HIV prevention policy in this way?

Do criminal charges for non-disclosure of HIV-status help or hinder women attempting to protect themselves, in particular women in abusive relationships or who are economically or
socially dependent on male partners? What about women living with HIV in such circumstances? Would criminally prosecuting them for not disclosing their HIV-positive status serve the interests of justice?

What specific sexual acts pose a legally “significant risk” of HIV transmission, the threshold established by the Supreme Court as requiring disclosure? Using condoms, engaging in lower-risk sexual activities such as oral sex and individual factors such as the viral load of the HIV-positive partner, reduce dramatically the possibility of HIV transmission, leading a few courts to find that criminal charges are not appropriate in these circumstances. But this remains an unsettled aspect of the law, inviting police and prosecutors to keep pushing the boundaries of the law outward to criminalize more and more people, even those who act responsibly.

Finally, if the criminal law is to serve its proper function, we ought to be questioning its broader public health impacts. Why do some individuals living with HIV not disclose their status to sexual partners in certain circumstances? Stigma is one very real major factor, despite cavalier dismissals by some commentators. To the extent that widespread media coverage of criminal prosecutions reinforces an image of people with HIV as potential criminals, it exacerbates the stigma surrounding HIV and certainly does harm. Are people more reluctant to be tested (believing ignorance is their friend) and do they withhold information about their risk behaviours from counsellors (as this information could be used against them in a criminal proceeding)? Do we encourage a false sense of security among people who believe themselves to be HIV-negative, who want to believe that a legal requirement of disclosure means they needn’t worry about their partner’s HIV status?

Contrary to what has been suggested in some commentary (including in The Globe and Mail’s editorial), we have not taken a position on whether the man recently convicted in Hamilton should have been charged with murder, nor on his guilt or innocence. What we have consistently advocated for is a reasoned evaluation and policy debate with respect to the broader questions raised by using criminal charges in cases of HIV non-disclosure.

One step would be to develop prosecutorial guidelines to guide individual police officers and prosecutors, including indicating when prosecution is not warranted. No one is suggesting that we forgive and forget behaviour that has caused harm. But the criminal law is “society’s ultimate weapon.” Not only is studying, evaluating and critiquing the application of the criminal law appropriate, it is absolutely necessary to ensure it is used sensibly and fairly.


Alison Symington is senior policy analyst and Richard Elliott is executive director with the Canadian HIV/AIDS Legal Network.

Update: Although the Globe and Mail didn't publish the above op-ed, they did publish this letter by Eric Mykhalovskiy who is a member of the Ontario Working Group on Criminal Law and HIV Exposure, on April 9th.

HIV legal policy needs debate

ERIC MYKHALOVSKIY

April 9, 2009

The Globe and Mail should support the call for a national dialogue on the criminalization of HIV-nondisclosure (Murder, Not Policy - editorial, April 7). Criminalizing nondisclosure may create the appearance the state is doing something concrete about sexual transmission of HIV. But there are difficult issues at stake, far more complex than those arising out of the Johnson Aziga case.

A few places to start: how to set parameters for a criminal law, given new research showing the possibility of transmitting HIV is dramatically reduced when treatments are used; how to update criminal justice to reflect that HIV is no longer the immediate death sentence it was when the legal obligation to disclose HIV was set; how to make sense of sentences for HIV nondisclosure that have been up to 10 times longer than those for other sexual assault convictions; and, yes, how to consider what the broad and long-term impact of criminalization will be on public-health strategies for HIV prevention.

Canadian Institutes of Health Research New Investigator, York University

Canada: More on the Aziga verdict

Since the guilty verdict in first ever murder trial for sexual HIV transmission, Canada's media has been filled with editorials, for the most part welcoming Johnson Aziga's conviction.

For example, Mr Aziga's local paper, The Hamilton Spectator, whose reporter Barbara Brown covered every day of the trial, led with an editorial today headlined: Aziga verdict serves justice.

More sinister, is The Winnipeg Free Press editorial which used Mr Aziga's conviction as thinly-veiled racist commentary, arguging that African migrants with infectious diseases have no place in Canada, in today's editorial entitled, Opening doors to disease.

Other papers, such as The Chronicle Herald from Nova Scotia, The Toronto Star and the national Globe and Mail, have picked up on earlier comments from Alison Symington of the Canadian HIV/AIDS Network, who questions a society that has turned a public health issue into one of murder. Right-wing columnist Rose Dimano even managed to be 'shocked' in her Toronto Star editorial.

Shockingly, there are some AIDS activists who support the view that HIV-positive individuals have no obligation to reveal their status to sexual partners; that everyone is responsible for taking their own precautions.

However, there has also been some balanced reporting, notably an article by Wade Hemsworth of The Hamilton Spectator, entitled Should we keep AIDS out of the courts? which featured interviews with myself and Ms Symington alongside that of a retired law professor who was pro-criminalisation. The piece was also summarised today by the Kaiser Network.

Update: April 15th. Also including a link to a website called findingdulcinea.com which includes a very nice summary of the issues, and includes a voting tool asking whether Johnson Aziga is a murderer. After 18 votes, 72% voted yes, 17% voted no, and 11% were unsure.

And I almost missed the best anti-criminalisation piece of them all from Canada's gay paper, Xtra, featuring excellent quotes from Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Network; Angel Parks, coordinator of the AIDS Committee of Toronto's Positive Youth Outreach programme; and Barry Adam, a sociologist at the University of Windsor and Ontario HIV Treatment Network.

Finally, I wrote a piece for aidsmap.com published today about the facts of the case, the first few paragraphs I reproduce here.

A Canadian man who is thought to have recklessly transmitted HIV to seven women, two of whom subsequently died, has made legal history by becoming the first person ever to be convicted of first-degree murder for sexual HIV transmission. The case has reignited the criminalisation debate in Canada, which has prosecuted more HIV-positive individuals per capita for sexual HIV exposure or transmission than any other country in the world.

The trial, which lasted six months, concluded last Saturday, when a nine-man, three-woman jury found Johnson Aziga, 52, guilty of two counts of first-degree murder, ten counts of aggravated sexual assault and one of attempted aggravated sexual assault after deliberating for three days.

Read more

Canada: Three articles cover the gamut of opinions on criminalisation

Three articles published last week covered the gamut of opinions on Canada's HIV exposure laws, and the impact they are having.

To begin with the most conservative, an opinion piece by Ken Gallinger in the Toronto Star, entitled HIV is not the common cold, concedes, after being asked provocatively "how it could ever be okay for a person who is HIV-positive to have sexual relations with another person?" that HIV-positive people can have sex "as long as both partners fully understand what they are doing, and take every possible precaution to prevent the spread of the virus."

Another editorial by Sam VanSchie in the student newspaper, The Martlet, explored the impact of media reporting on the Charles Mzite case in Victoria, BC, and notes that "[p]eople with HIV can have safe, healthy sex lives. They are not criminals, though people like Mzite do much to perpetuate the stigma against them."

The article also explores the ethics of HIV testing for migrants, and why disclosure is not always possible.

Today, an HIV-positive immigrant like Mzite would have been denied entry into the country. He would not have been allowed to be tested for the virus anonymously like he did in 2001, which allowed him to tell his partner his result was negative without the clinic reporting him to a medical health officer and alerting his partners. Taking away these individual freedoms isn’t addressing the root of why people might hide their HIV-status and continue high-risk behaviour. It’s not easy to tell somebody you have HIV, and it’s not easy to ask.

Finally, Vancouver's gay paper, Xtra West, interviewed HIV advocate Glenn Betteridge who was in town to discuss the impact of HIV exposure laws on HIV-positive people.

The article highlights that most cases that reach trial are focused on heterosexual transmission, but still warns its gay HIV-positive readers that to avoid legal repercussions when having sex in Canada, they must disclose even if using a condom or having unprotected sex with another HIV-positive person.

Consistently practicing safer sex doesn’t eliminate the need to disclose, either, Betteridge told the Vancouver forum. When it comes to an individual’s obligation under the law in this country, Betteridge bluntly states, “a condom doesn’t cut it.” Though courts in some countries, including Canada, have made judgments based on rates of infection for certain sexual acts, viral load, and the use of condoms, there is to date no definitive legal ruling that practicing safer sex belies the need for open dialogue about HIV status...Betteridge says disclosure can be a factor even between HIV-positive individuals. Although the courts have yet to see such a case, the risks associated with drug-resistant strains of HIV, which can be passed to someone with a currently manageable strain, means disclosure may be required there too.

I do worry enormously about the impact of Canada's HIV exposure laws. Forcing disclosure every time, even under circumstances when HIV transmission is extremely unlikely, can be a double-edge sword, as a recent Sigma report (from England) discovered.

This year's CHAPS conference highlighted an important finding from another recent Sigma report, Relative Safety II reported on aidsmap.com that:

Some men reported that they took care to disclose their HIV status to sexual partners. One individual even went so far as to save web logs of internet chat to prove that he had disclosed his HIV status in the event of a criminal complaint being made. However, other men had adopted the opposite strategy, and told the investigators that they were taking additional precautions to conceal their HIV status to protect themselves from the risk of prosecution. This suggested to Dr Dodds that the prosecutions were not increasing the likelihood that HIV-positive individuals would disclose to potential sexual partners.

Since the law in England does not actually mandate disclosure, the impact in Canada may differ, but given conversations I've had recently with several thoughtful HIV-positive Canadians, I think not.

Canada: HIV doctor apologises for 'offensive' pro-criminalisation article

A Canadian HIV clinician whose pro-criminalisation views made the front page of the The Guelph Mercury last week has issued a letter of apology and clarification, stating that she is "definitely not 'pushing for criminal charges'."

The article, published on February 6th, and written by staff writer, Rob O'Flanagan, claimed that:

A leading HIV/AIDS physician in Guelph says those infected with the disease who recklessly spread it to others should be charged with a criminal offence.

It went on to quote Dr. Anne-Marie Zajdlik – a highly regarded HIV primary care physician who also volunteers at the Tsepong Place of Hope AIDS Clinic in Lesotho, and is a Board member of OHAfrica – as saying:

"If I assume that someone who is HIV positive knows they are, and I assume that they've also received the care that's available in this country, then they have received counselling that tells them how to practise safe sex.

"Someone who knows they are HIV positive, but has not listened to the counselling and continues to live a very disorganized life for whatever reason, and knowingly transmits the virus to someone else, that is a criminal act."

The article then quotes an anti-criminalisation advocate, who, unfortunately, brings denalism into the argument.

I have skepticism around AIDS in the same way a lot of people have skepticism around cancer," he said. "Some people get cancer and they die. Some people get cancer and they don't die. The same thing happens with AIDS. I am not one of these people that think that HIV is like a loaded gun that is going to kill you."

[...]

But Zajdlik said she believes AIDS is a deadly illness, "and if you know you have it and engage in an act that you know is likely to transmit it, and you don't tell your partner -- giving them the opportunity to protect themselves -- that's a crime," she said.

"And if you don't charge someone who has the mindset that, 'I have HIV and I don't care, or I have HIV and I will have sex with whoever I want to and I don't need to tell them,' then you are putting the community at risk."

Now, in an email circulated to HIV advocates around Canada, Dr Zajdlik passes on her "regrets and apologies to anyone who is offended by The Guelph Mercury Article on the Criminalization of HIV".

She goes on to write: "The journalist who wrote the article used quite a bit of licence and gave the article a tone which I take offence to. I am not an expert in this area. I am not knowledgeable on all of the issues associated with this topic and I am the last person on earth who would wish in anyway that those infected with HIV would be marginalized or unjustly penalized. I am definitely not 'Pushing for criminal charges'.

"I was unwise to speak to this journalist on this topic. I will not engage in further public discussion concerning this issue and I apologize to those who may be confused or offended by the contents of the article and my contribution to it."

The article comes at a time when prosecutions of HIV-positive people for exposing their sexual partners to virus are taking place on a weekly basis in Canada. The highest profile case is that of Johnson Aziga, whose double first-degree murder trial has been on a two month hiatus whilst his defence team prepare their evidence, and whose trial has received a great deal of publicity.

However, advocates are fighting back, including the recently-formed Ontario Working Group on Criminal Law and HIV Exposure. Canada's national gay newspaper, Xtra, has also launched a campaign to condem the criminalisation of HIV - the campaign's Facebook page currently has almost 250 members.

UK: Most gay men support criminal HIV transmission prosecutions

A startling and important new report from Sigma Research, entitled Sexually charged: the views of gay and bisexual men on criminal prosecutions for sexual HIV transmission has found that the majority of more than 8000 gay men surveyed in 2006 during the annual Gay Men’s Sex Survey support prosecutions for 'reckless' HIV transmission.

An excellent summary of the report's findings, Ignorance and stigma provide foundation for gay men's support of criminalisation of HIV transmission by Michael Carter, can be read at aidsmap.com.

The report's lead author, Catherine Dodds, reported part of these findings at the 2008 CHAPS conference, and I had the honour of joining her on stage to discuss how the gay community might be able to respond to them. A report of our presentations was published in the July 2008 edition of THT's Issue magazine.

Update: 17th March. In order to respond to a comment I'm uploading a table from the report showing who exactly supports prosecutions by HIV testing history.



As you can see, although 'only' 49.4% of HIV-positive gay men do not agree with prosecutions, a further 31% are not sure, leaving a significant minority (19.6%) in favour of prosecutions. This compares with 56.3% of HIV-negative gay men and 63.5% of untested gay men who support criminal prosecutions.

Singapore: Half of Singaporeans unaware that condoms prevent HIV

Half of the Singapore population are unaware that condoms can prevent HIV transmission, according the results of a survey by the Health Promotion Board. Of greater concern is that those most at risk - aged 18 to 29 - know the least about HIV transmission and how to prevent it.

One wonders how Singapore's safer sex laws passed in April can possibly be legitimate given this startling discovery.

Reports from Bloomberg.com and the Straits Times below.

Condom Use to Prevent HIV Is Unknown by Half of Singaporeans

By Simeon Bennett

Oct. 17 (Bloomberg) -- Almost half the people in Singapore don't know that condoms can prevent HIV infection, and three in four wouldn't eat with an infected person, according to a survey by the nation's Health Promotion Board.

Only 54 percent of those surveyed in the city-state last year knew that condoms can stop the AIDS-causing virus, the study of 1,768 people aged 18 to 69 showed. Almost half also said they wouldn't look after a relative sickened by HIV, the study found.

"These negative attitudes can be a barrier for the at-risk to know their HIV status as they might fear being discriminated against,'' said JoAnn Taylor, deputy director of the board's communicable-disease-education unit, in a statement yesterday.

Singapore, battling to curb an HIV infection rate that has doubled in the past decade, is running art exhibitions and plans pop concerts and a Mandarin-language television program to educate people about HIV prevention, the board said. This year, 345 people have been diagnosed with HIV in Singapore, compared with 316 in the same period last year and 199 in the whole of 1998, according to data on the health ministry's Web site.

About 82 percent of those surveyed knew limiting sex to one partner could help prevent infection, and 75 percent knew abstaining from casual sex could help, according to the latest survey. Those aged 18 to 29 were least informed about ways to prevent infection, the study found.

Sexually transmitted infections including HIV, syphilis and chlamydia among people aged 15 to 24 rose 45 percent to 418 per 100,000 people in Singapore last year from 231 per 100,000 in 1998, Health Minister Khaw Boon Wan said last month.

The government has also strengthened its anti-HIV laws. In April lawmakers passed amendments to laws that make it a crime for a person who doesn't know their HIV status and has "reason to believe'' they may have the virus to have sex without informing a sexual partner or taking "reasonable precautions'' to protect them.

Know how to prevent Aids?

Those aged 18 to 29 ranked lowest in health board's survey on Aids awareness
By April Chong
Oct 17, 2008

YOUNG people aged 18 to 29, who are more likely to be sexually active than any other group, know the least about how to prevent Aids, a new survey has found.

They ranked lowest among the age groups, with just three quarters knowing at least two ways that the Aids virus could be prevented, compared with more than 80 per cent for the other age groups.

Those in the 30 to 49 group were best informed, according to the first survey of its kind conducted by the Health Promotion Board (HPB), which oversees HIV prevention programmes in Singapore.

It polled 1,800 people aged 18 to 69.

The survey also found that only one in two of the population knew that consistent condom use would prevent Aids, though at least three quarters were aware that abstinence and faithfulness to one's partner were other measures.

The survey will be conducted every three years and will help the HPB fill the gaps in its public education programmes.

One such gap is the lack of knowledge among young people, which has grave consequences.

At the Department of STI Control clinic, patients in the 20 to 29 age group make up some 40 per cent of all its cases.

More distressingly, there has been a spike in sexually transmitted infections among the young. Between 1998 and last year, the incidence of such diseases among those aged 15 to 24 rose nearly 45 per cent, from 231 to 418 cases per 100,000 population, Health Minister Khaw Boon Wan told Parliament last month.

'The younger group just wants to have fun and they do not care less about awareness,' said Mr Lionel Lee, executive director of the voluntary organisation Action for Aids.

HPB said it would have new programmes targeted at the younger crowd, such as a concert at Fort Canning Park on Nov 29, to bring home the message of Aids prevention. More details can be found at www.loveamp.sg.

On the issue of condom use, it said that the general population may not be aware of its role in HIV prevention because the Board's emphasis to the public has always been on abstinence and faithfulness, said Ms JoAnn Taylor, deputy director of Communicable Disease Education in HPB's Adult Health Division.

But the survey also found that only 22 per cent of those at risk - men who have sex with other men, those with multiple sexual partners, or who engage in casual sex - use condoms consistently during sexual activity.

To combat the spread of Aids and its misconceptions, the Board will be rolling out education strategies in workplaces and in the heartland.

This includes community art exhibitions and a Mandarin drama serial which revolves around the Aids theme. The drama serial, By My Side, will be broadcast on Channel 8 at the end of the month.

Botswana: Belief that many are deliberately transmitting HIV fuels calls for criminal HIV transmission laws

Those That Sow HIV Deserve Prison

Voice journalist Naledi Mokgwathi, recently went out onto the streets of Gaborone to find out what B0tswanans think about the issue.

"People should be forced to test at intervals so that when someone accuses them of willfully transmitting the virus, records are brought up to see if the person knew their status."

"It's in line with murder, it's like hurting someone severely and it deserves life imprisonment, because if they were to be let out of prison, they might continue doing the same thing."

"It is going to be difficult to find out what really happened and if it was done intentionally."

Full story at allAfrica.com