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Tuesday 29 March 2011

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.



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