Austria: Matthew Weait guest blogs on recent mother-to-child transmission conviction of HIV denialist

The recent conviction of Austrian HIV denialist Barbara Seebald for:

1. rejecting taking the prescribed medicine during her pregnancy despite knowing of her HIV infection,
2. giving birth to her child naturally and at home with the help of a midwife who was not informed about her HIV infection despite the former arrangement with the doctors that the birth should be a Caesarean,
3. breastfeeding the newborn and
4. not giving medicine to her daughter

comes at critical time, just before the subject of the criminalisation of HIV exposure and transmission comes under the spotlight at the International AIDS Conference (AIDS 2010) held in Austria's capital Vienna.

Mrs Seebald - whose husband, Leonhard, had been charged as co-conspirator, but who died in May – was given a ten month suspended sentence, which she is currently appealing. Her case received the full UK tabloid treatment in The Sun last Tuesday.

Dr Matthew Weait, Reader in Socio-Legal Studies at Birkbeck College, London, author of Intimacy and Responsibility: The Criminalisation of HIV Transmission, and a member of the Technical Advisory Group of the recently-launched UNDP/UNAIDS Global Commission on HIV and the Law, has provided me with a thought-provoking analysis of the case that I'm posting in full below.

Denialism and Criminalisation

by Matthew Weait

The recent Seebald case in Austria raises a number of thorny questions for those opposed to the criminalisation of HIV exposure and transmission. These are my initial thoughts.

Why do we punish? Among the reasons are to make a moral example (a retributive justification), or to deter the defendant and others (an instrumental justification). If we subscribe to a retributive justification, then the defendant needs to be morally blameworthy – not just generally, but in respect of the particular conduct they have engaged in. Such blameworthiness will typically be because they intended the harm that was committed, because they took an unjustifiable risk, or because (more rarely) they were grossly negligent. As a matter of general principle, retribution requires moral fault on the part of the defendant, in the sense that they (not some hypothetical person) knew that they were at fault and were acting wrongly. If we subscribe to a more instrumental justification – and are more concerned with the effects of a person’s conduct than with their moral fault – we may be satisfied with a criminal law that takes an objective approach. In other words, would a reasonable person have done this? Would a reasonable person have been aware of the risk?

Someone who fails to take precautions against the onward transmission of HIV and / or who transmits HIV to another but who honestly believes that HIV does not cause AIDS, or who denies the relevance and / or meaning of HIV infection, cannot, according to a purely retributive approach, be legitimately punished. The honest belief negates their fault. Very few criminal law systems subscribe to such an approach, because there is always a social or public interest in harmful, or potentially harmful behaviour. More typically there needs to be a threshold moral fault, coupled with an objective (public interest) test.

The question raised by the Seebald case, then, is whether a person who honestly holds a denialist position may legitimately be punished where they infect another person with HIV, or expose them to the risk of HIV infection?

From a purely legal perspective, in the context of Austrian criminal law, the answer is yes. The Austrian penal code criminalises both intentional and negligent exposure and transmission. Put simply, its concern is not so much with the moral blameworthiness of the defendant as in the protection of the interests of others. There is however, a more general question as to whether the Austrian approach, and that of other countries which have similar laws, is justifiable.

My own answer is no, for the following reasons.

First, I believe that the criminalisation of non-intentional HIV transmission and exposure is unjustifiable on public health grounds, as well as being morally suspect. There is widespread international agreement on this point, the reasons articulated in a number of well-informed, thoughtful and coherently argued interventions. It follows that someone who honestly (even if misguidedly) denies the relationship between HIV and AIDS cannot legitimately be punished for onward transmission of HIV, unless one takes the view that such honest belief is to be ignored. And if we ignore it, then we fail to take seriously the reasons - whatever those might be – for denialism. These might be grounded in a person’s particular life story; or they might result from misinformation or misunderstanding. Whatever its cause, and however difficult it might be to understand that denialism or to sympathise with it, our incomprehension cannot be a sufficient justification for criminalisation and punishment. Put another way, a general opposition to criminalisation of non-intentional exposure and transmission cannot be displaced by conduct whose roots lie in ignorance. Doing otherwise effectively makes a failure to accept what most other people believe a sufficient justification for punishment, and that has a frighteningly totalitarian ring to it.

More generally, it seems to me that the criminalisation and punishment of a denialist – apart from the immediate impact on her or his personal and domestic life – displaces the more important issues (a) of systemic failures in HIV/AIDS education, and (b) of the effects of HIV-related stigma and prejudice. If we criminalise people who hold beliefs that the majority do not share, we risk reducing larger, structural, general problems to the level of the particular, the individual and exceptional. This will get us nowhere fast, and simply provides further opportunities for human interest-driven, and scandal-hungry media to demonise and reinforce negative images of people living with HIV.

We must resist the framing of events and episodes such as those represented by the Seebald case as a criminal law problem. If we do this, we necessarily imply that there is a criminal law solution – or, more strongly, that only a criminal law solution is needed. This is both wrong-headed and dangerous. The problem is far more complex, and requires a far more nuanced, sensitive and humane response – one that understands, acknowledges and addresses the reasons for a person’s denialism position rather than simply punishing them for it.

Canada: Denial and denialism conflated in Montreal Gazette story

A rather confused article that links individual denial with the denialist movement and criminal prosecutions for HIV exposure and transmission was recently published in The Montreal Gazette.

It is notable for highlighting the problem of AIDS denialism, which was unsuccessfully used as a defence by Andre Parenzee during an appeal for criminal HIV transmission in an Australian court last year.

However, I am not particularly happy with the choice of words used by Dr. Vinh-Kim Nguyen, an AIDS physician and anthropologist at the Université de Montréal. After explaining how personal denial is an understandable psychological response to an HIV diagnosis, he likens non-disclosure to "Russian Roulette."

"They say: 'I feel healthy and I'm not going to take drugs.' There's a lot of baggage that comes with an HIV diagnosis," he said.

People go into denial around fatal illnesses, Nguyen added.

"They're just not psychologically ready to take medication and be reminded twice a day that they have a potentially fatal illness. The psychological denial is completely understandable."

While failing to disclose HIV status to an unsuspecting partner isn't the same as saying HIV doesn't exist, "it's still playing Russian roulette," Nguyen said.

The complete article from The Montreal Gazette is below.

Deadly consequences of ignorance
Despite millions of deaths worldwide, some people claim HIV doesn't exist or that it has no link to AIDS
CHARLIE FIDELMAN
Montreal Gazette
Monday, May 05, 2008

Gabrielle Martineau flew into a rage when a blood test confirmed she had unknowingly infected her baby daughter with the virus that causes AIDS.

Trusting that she was in a monogamous relationship, Martineau didn't practise safe sex. She was planning to have a baby.

But her partner hadn't revealed a crucial health factor: his HIV positive status.

Twelve years later, the South Shore mother and child continue to live with the consequences: a daily regimen of pills, drug side effects, fatigue and illness.

"He just said he gave it to me in the same way he got it, (through sex)," Martineau, 31, said, recalling her partner's answer to the question: "Why did you do it?"

"I was floored," she continued, her voice shaking.

"I didn't know what to do."

AIDS denial comes in as many forms as the deniers themselves.

Some claim the human immunodeficiency virus doesn't exist or is harmless; some argue it's a medical conspiracy to sell drugs, and some, like Martineau's partner, behave as if in personal denial, witRating 2 olding the truth about their condition from their unsuspecting sexual partners.

But regardless of its guise, denial continues to confuse and kill, experts say.

"We have enough women die of HIV/AIDS to know it's true and not a hoax," said Daniella Boulay-Coppens, executive director of The Centre for AIDS Services of Montreal (Women).

"These are ordinary run-of-the-mill women, not drug users, not prostitutes, not homosexuals."

More than 68 per cent of the women seeking help at the centre were infected by partners who kept silent about their condition, Boulay-Coppens said, including a bank executive who believes she got infected during a 25th-wedding anniversary cruise with her husband.

"Nice gift," Boulay-Coppens said dryly.

- - -

David Crowe, president of the Alberta Reappraising AIDS Society, a group that questions the scientific connection between HIV and AIDS, says there's no need to wear condoms to ward off HIV infection because there's no proof the virus exists.

But the courts disagree.

Canada's highest-profile criminal case to date involving non-disclosure of HIV status saw former Canadian Football League linebacker Trevis Smith plead guilty to knowingly exposing two women to the virus that causes AIDS by having unprotected sex with them and not revealing his condition. Found guilty in February of aggravated sexual assault, he is serving a six-year prison sentence.

There's a similar court case in Australia and another pending in Canada.

Defence lawyers in the Australian case - the man was convicted of knowingly exposing women to HIV - are saying HIV is not a real virus and it cannot be transmitted sexually.

Those are classic denialist claims, said virologist Mark Wainberg, director of the McGill AIDS Centre at the Jewish General Hospital and past-president of the International AIDS Society. The lawyers argue HIV science is dubious, Wainberg said, contrary to the position adopted by the World Health Organization.

HIV attacks and weakens the immune system. The body is then unable to defend itself against common illness. The virus often leads to a chronic, progressive illness because it leaves infected people vulnerable to opportunistic infections and cancers, scientists say.

Those who say HIV is not definitively linked to AIDS are a part of small,

ill-informed fringe group but they have global impact that's lethal, Wainberg warned.

"This is a serious issue. The potential for harm includes persuading people they don't have to protect themselves against HIV," Wainberg said.

"For us, this is not an issue that has two sides."

Crowe counters the science is not clear cut.

"Why are people so anxious not to have scientific discussions?" he asked.

Crowe says he prefers to be called an AIDS "dissident" rather than "denialist," which he says is an unflattering, pejorative term.

With the global AIDS scourge killing 25 million people and the virus infecting another 40 million, HIV professionals say they are baffled that denial endures.

"It is a terribly destructive phenomenon and it has resulted directly in the death of people," said Joanne Csete, executive director of the Canadian HIV/

AIDS Legal Network, an advocacy organization working on the legal and human rights issues surrounding the illness.

"It's particularly sinister in developing countries, where people don't have access to medication and information."

You have only to look to South Africa, she said. Until recently, President Thabo Mbeki infamously denied the link between AIDS and HIV while his health minister advocated a vegetable therapy - beetroot, garlic and lemon juice - instead of life-saving anti-retroviral drugs. Without access to drugs, prevalence of HIV jumped to an estimated 20 per cent of the country's population.

"Many of our organizations have run into denialism along the way and we've fought against it as we can," Csete said.

"Some people clearly have a profit-based motive for denialism; others are in personal denial. But whatever the motivations, denialism has been extraordinarily dangerous."

Discredited German-born vitamin salesman Matthias Rath, now of South Africa, supports the denialist view that anti-HIV drugs are making people sick.

In advertisements in newspapers like the New York Times and on the Web, Rath has aggressively marketed his own concoction of micronutrients as the natural cure for AIDS, and has a strong following.

Rath could not be reached for comment.

Wainberg and other researchers on the front lines of the global AIDS crisis say there's an analogy with cigarette smoking. Sure, some smokers stay healthy, but to claim the link between smoking and lung cancer is a hoax perpetrated by personal injury lawyers or pharmaceutical companies is totally false.

"We are always concerned about people who are vulnerable listening to these (claims)," Wainberg said. "Any case of HIV transmission is a case too many.

"In 2007, we speak about HIV being one of the world's leading causes of death, and to have people challenging this is playing with the public's health."

- - -

When Sophie Brassard of Montreal refused to give her two HIV-infected sons anti-retroviral drugs, the case made newspaper headlines around the world because the boys were forcibly removed from her custody.

The children were seized at the airport when Brassard tried to flee the country; the family's pediatrician had reported the case to youth protection authorities.

Infected during pregnancy (mother-to-child transmission), the boys got sick while the mother was healthy, initially. She didn't believe HIV caused her children's illness.

In 2002, several years after dismissing the HIV/AIDS connection, Brassard died of AIDS-related complications.

About 10 per cent of HIV patients refuse to take medication, said Dr. Vinh-Kim Nguyen, an AIDS physician and anthropologist at the Université de Montréal.

"They say: 'I feel healthy and I'm not going to take drugs.' There's a lot of baggage that comes with an HIV diagnosis," he said.

People go into denial around fatal illnesses, Nguyen added.

"They're just not psychologically ready to take medication and be reminded twice a day that they have a potentially fatal illness. The psychological denial is completely understandable."

While failing to disclose HIV status to an unsuspecting partner isn't the same as saying HIV doesn't exist, "it's still playing Russian roulette," Nguyen said.

Various AIDS groups say confronting naysayers is a continuous struggle because the dissident position is readily available in cyberspace. But when two denialists showed up at recent Montreal AIDS conferences, organizers opted to let them speak.

A media storm around "free speech" would have provided them an even bigger platform, said Keith Monteith of AIDS Community Care Montreal and COCQ-Sida, a coalition of Quebec AIDS service groups.

"I'm not sure how much paying attention to them legitimizes their position," Monteith said.

"They don't need to be taken more seriously than anyone else with a kooky theory. We just have to make sure the counter-information is out there."

According to the 2006 Public Health Agency of Canada survey on AIDS awareness, 11 per cent of Canadians fall into a category called "Moderately Informed Deniers/Fearful" who tend to have the least knowledge about HIV/

AIDS and show the highest levels of discrimination toward people with the condition.

Fearing the stigma of AIDS, Martineau asked The Gazette to not publish her daughter's name.

"I've seen the ignorance and meanness. ... She will be judged and catalogued and dismissed."

Martineau and her daughter are on a daily regimen of several drugs to keep the virus at bay. Martineau temporarily stopped taking the pills, but her blood viral load jumped.

The treatment combines three anti-retroviral drugs used in treating HIV-infected patients to prevent the infection from progressing to AIDS.

It's been two years since Martineau revealed to her daughter, now 12, the reason she's taking medication: "She asked me about dying young. That hit me hard."

For Martineau, the alarming discovery that her partner was HIV positive came during a dinner conversation when guests, old drinking friends of his, brought it up casually.

"They knew, but I didn't. I waited till they left to confront him."

The next day, Martineau and her 9-month-old baby went for blood tests at the nearest HIV clinic.

"I was furious. I wanted to kill him. But then I would have ended up in jail," she said.

"This illness is already a prison and I don't need another."

But like many who come to the women's centre for support, Martineau did not attempt to get justice from the legal system. She doesn't believe she could win her case in court.

"It would have been my word against his that he deliberately infected me."

Also, she didn't leave her partner for six months. "I thought my life was over anyway, " she recalled. "I didn't think anyone would love me."

She left, she said, when her partner became violent, physically and emotionally.

Martineau doesn't have a job because of the illness. Instead, she does volunteer work helping other HIV-infected women, and lectures in schools about safe sex practices.

"The anger is still there, but I'm keeping my energy for me, for my child and for fighting against this kind of ignorance."

cfidelman@thegazette.canwest.com

- - -

Dissidents Have Their Say

Denialists regularly reject the ideas that precautions against infection are required, HIV testing is appropriate, monitoring disease progression is necessary, treatment saves lives, and that AIDS is a real epidemic or even a real medical condition.

It's not the virus making people sick, but other factors, including anti-HIV drugs like AZT, they say.

Some of better-known names in the denialist camp include:

- Writer Celia Farber. She drew more coverage for her views last year when Harper's magazine ran her 15-page story, titled Out of Control: AIDS and the Corruption of Medical Science.

- Christine Maggiore, the HIV-positive founder of Alive & Well AIDS Alternatives. She continues to reject anti-retroviral medications and denies her 3-year-old daughter died of AIDS-related pneumonia, contrary to a coroner's autopsy report.

- Peter Duesberg, professor of molecular and cell biology at the University of California, Berkeley. The Duesberg hypothesis holds HIV is a harmless "passenger" virus unrelated to AIDS except by association.

These views, rejected by the medical and scientific communities as dangerous pseudoscience, can be found on the AidsTruth website: www.aidstruth.org

© Montreal Gazette 2007

Editorial: The Transmission of HIV and the Criminal Law

THE TRANSMISSION OF HIV AND THE CRIMINAL LAW
Editorial by Matthew Groves in Criminal Law Journal (Australia)
(2007) 31 Crim LJ 137

There has recently been considerable publicity about the criminal law and the transmission of human immunodeficiency virus (HIV). In South Australia, the two issues came together in an appeal concerning so-called “AIDS-denialists”. In Victoria, the possible use of the criminal law in a case involving criminal conduct and the transmission of HIV generated widespread publicity about the alleged failure of administrative arrangements to manage the behaviour of people who are HIV positive and are suspected of engaging in inappropriate behaviour. The common theme in each instance was the continued difficulty that the law has in grappling with HIV-related issues. Another common point arising from each controversy is that legal responses to HIV, at least in the criminal arena, remain vexed about issues of knowledge and consent. Even the most recent of cases shows that these age-old issues are not capable of easy resolution of exact legal principle.

THE GHOSTS OF CLARENCE AND PAPADIMITROPOULOS
Criminal cases about the transmission of HIV almost always involve sexual conduct. In most of these cases, a key dispute of fact is usually whether the alleged victims knew the accused was HIV positive. Many also raise the question of whether the accused knew if he (as it usually is a male) was HIV positive. The spectre of the Clarence1 case has long hung over such cases. That notorious case involved a husband who knew that he was suffering from gonorrhoea, but nonetheless had sex with his unsuspecting wife and passed the disease to her. Clarence was charged with inflicting grievous bodily harm and assault occasioning actual bodily harm.2 His appeal against conviction succeeded in part because the consent of Mrs Clarence to have sex with her husband was held not to be vitiated by her husband’s failure to disclose his illness. The case became more controversial over time by reason of its reliance on the artificial proposition that a married woman was, by virtue of her status as a wife, deemed to have consented to have sex with her husband. But considerable difficulty also flowed from
the suggestion of Stephen J that fraud would not vitiate consent unless it went to either the nature of the act or the identity of the other person. The main problem with that approach was that it greatly narrowed the circumstances in which fraud would stymie consent.

The High Court essentially adopted a similar view Papadimitropoulos v The Queen3 when it held that an accused who had taken a woman through a sham marriage was not guilty of rape when the two subsequently had sex (on what the woman mistakenly thought was their wedding night) because the woman knew of, and consented to, both the nature of the act and the identity of the accused. The court explained that “once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape”.4
The reasoning adopted by Stephen J in Clarence was not decisively accepted in England until
over a century later,5 but the decision had been steadily narrowed in the meantime.

Papadimitropoulos was similarly chipped away by the introduction of many lesser sexual offences under which similar fraud could have been prosecuted.6 The reasoning in these decisions has assumed renewed importance with the rise of HIV-related prosecutions because most of these cases involve allegations of fraud that are not unlike those in Clarence and Papadimitropoulos. The experience of other jurisdictions suggests that further difficulties arise from the circumstances of many HIV-related cases.

THE NEW ZEALAND EXPERIENCE
The leading New Zealand case of R v Mwai7 clearly invoked the spectre of Clarence. The defendant who was HIV positive had unprotected sex with five women without disclosing his HIV status. Two of the women became HIV positive. On appeal it was argued that the defendant could not control the virus and, therefore, had not failed to discharge any legal duty to which he might be subject. On appeal, attention focused on the likelihood that one of the defendant’s partners would contract HIV.

More particularly, it was argued that the many biological factors that could influence whether any particular sexual encounter might lead to the transmission of HIV were such that the required causal connection between the sexual act and HIV infection could not be established to the standard required in criminal cases. This argument was essentially accepted in a string of Victorian cases,8 but was flatly rejected by the Court of Appeal of New Zealand.9

Surprisingly little attention was given to the failure of the defendant to disclose his HIV status but the Court of Appeal did accept that disclosure could have made an important difference. The issue arose in the context of the extent of the defendant’s possible duty, as a person who had a dangerous thing under his control or charge,10 and the nature of the duty to take precautions against and to use reasonable care to avoid resulting dangers. The court accepted that:

It is certainly arguable that there would be no duty if the partner consented to run the risk. Seen in thisway, the duty to use a condom would arise only if there were a failure to disclose.11

Although the Court of Appeal accepted that this point was made irrelevant by the defendant’s failure to disclose his HIV status, it was clearly prepared to entertain the possibility that an informed partner might be able to consent to unprotected sex with a HIV positive person. The logically related proposition that a duty to use condoms might only fall upon a HIV positive person if he or she disclosed his HIV status assumes that the person knows of his or her own HIV status. A key problem with that approach is that proof on the part of a defendant of his or her HIV status might be difficult.

Another problem is that, if a duty to engage in protected sex might only arise if there is knowledge and disclosure of HIV status, no such duty arises in other instances. That possibility does not sit well with the great emphasis that health authorities have tried to place on the need to engage in safe sex practices in all instances.

THE CANADIAN EXPERIENCE
In the leading Canadian case of R v Cuerrier,12 the accused, who was HIV positive, was charged with assault after he had unprotected sex with two women without disclosing his HIV status to either of them. The case turned on s 265(3)(c) of the Canadian Criminal Code, which provides that consent to the use of force is not obtained if the victim submits or does not resist by reason of fraud. All members of the Supreme Court held that Cuerrier’s failure to disclose his HIV status could constitute fraud within the meaning of this provision and could, therefore, vitiate consent.13 The case did not provide an entirely satisfactory precedent because the various judges issued three different theories on the requirements necessary to prove fraud in this sense.

Cory, Major, Bastarache and Binnie JJ held that a complainant’s consent to sexual activity could be vitiated by fraud if an accused failed to disclose his or her HIV status dishonestly, and this dishonesty had the effect of exposing the complainant to a significant risk of bodily harm. This latter requirement was clearly met by the risk of engaging in unprotected sex, while the proper use of condoms could reduce harm sufficiently so that there was no “significant risk of bodily harm”.

According to this view, unprotected sex could give rise to criminal liability, but protected sex
probably would not. The remaining judges added a requirement that the prosecution establish that an accused either knew, or ought to have known, that his or her fraud actually induced the complainant’s consent to have unprotected sex. McLachlin and Gonthier JJ essentially argued that Clarence should be cast aside, so that deception or dishonesty about one’s HIV status or another sexually transmitted infection could constitute fraud, which would vitiate any apparent consent to sex. L’Heureux-Dubé J cast a wider net, holding that fraud occurred when the dishonest act induced the other person to consent to the conduct, irrespective of the danger or risk of the act. On this view, any form of fraud would effectively vitiate consent.

THE ENGLISH EXPERIENCE
R v Dica14 was another case involving a HIV positive man who had unprotected sex with several women without informing them of his HIV status. He was charged with the same offence used in Clarence and was convicted after the trial judge ruled that it was open to the jury to find the defendant guilty, partly on the basis that the knowledge or ignorance of the women of his health status was irrelevant because they did not have the capacity to consent to the serious harm of HIV infection.

After this ruling, the defendant chose not to give evidence. On appeal, the defendant argued that, had the trial ruling not been made, he would have testified that the women knew of his condition but consented to have unprotected sex with him.

The Court of Appeal overruled Clarence, holding that a victim’s consent to sex was not
necessarily consent to the possible consequential risk of contracting HIV, but it did concede that consent could provide a defence to the charge of inflicting grievous bodily harm. The issue of consent was, therefore, wrongly withdrawn from the jury and Dica’s conviction was overturned. This approach suggests that a person who is aware that he or she is HIV positive and recklessly transmits HIV to another person may be guilty of an offence, but the issue will depend largely on the facts of each case.

The Court of Appeal accepted that consent could not extend to conduct which amounted to a
deliberate intention to transmit HIV,15 though it is clear that proof of intentional conduct would also depend greatly on the facts of each case.16

The Court of Appeal also engaged in a curious attempt to explain the possible consequence of its acceptance of the role of consent. It reasoned that the criminalisation of risk-taking was fraught with difficulty and that “interference of this kind with personal autonomy, and its level and extent, may only be made by Parliament”.17 The Court of Appeal also observed:

The problems of criminalising the consensual taking of risks like these include the sheer
impracticability of enforcement and the haphazard nature of its impact. The process would undermine the general understanding of the community that sexual relationships are pre-eminently private and essentially personal to the individuals involved in them. And if adults were to be liable to prosecution for the consequences of taking known risks with their health, it would seem odd that this should be confined to risks taken in the context of sexual intercourse, while they are nevertheless permitted to take the risks inherent in so many other aspects of everyday life.18

While the reasoning of the Court of Appeal provoked strong opinions on the extent to which
people can and should be able to give consent to the risk of HIV infection,19 there is a clear consensus that this issue does not lend itself to a simple solution. Most of the cases to date have involved an accused who knew of his or her HIV status and nonetheless engaged in unprotected sex. All of these cases assumed that a HIV person knew the risks associated with unprotected sex but the Supreme Court of South Australia was recently faced with a novel situation in which that key assumption was challenged.

AIDS DENIALISM IN THE SUPREME COURT OF SOUTH AUSTRALIA
In R v Parenzee,20 the defendant appealed three convictions of conduct endangering life. The
defendant was HIV positive and had unprotected sex with three women. The prosecution focused on the defendant’s knowledge of his condition and led evidence that he knew of his HIV status and had been advised of the risks associated with unprotected sex. That evidence provided a strong foundation for a prosecution argument that the defendant knew his actions were likely to endanger the lives of his partners and that he was recklessly indifferent to this danger. The defendant’s appeal sought to completely undercut the basis of the prosecution by essentially denying the existence and effect of HIV. It was argued that existence of HIV had not been clearly proven, that the tests used to diagnose HIV infection were unreliable, and that there was no clear evidence that HIV killed CD4 cells (these are key cells associated with a healthy immune system). It was also argued that, even if HIV existed, there was no clear proof that it was sexually transmitted. An alternative to this latter argument was that, even if did HIV exist, the risk of transmission by sexual activity was extremely low. Although
these arguments were ostensibly raised as potentially relevant to sentencing, the applicant also sought an extension of time for permission to appeal. That permission was refused and the detailed consideration undertaken by Sulan J would no doubt greatly influence any future attempt to deny the existence of HIV or its connection to acquired immune deficiency syndrome (AIDS).

After a careful review of the evidence provided by expert witnesses called by the prosecution and defence, Sulan J rejected the “AIDS denialism” theory offered by the defence because the two witnesses who sought to give evidence in support of the theory were not qualified to give evidence in the fields of their claimed expertise. He also held that, even if the witnesses were regarded as suitably qualified to be experts, the basic assumptions that they sought to challenge were supported by such an overwhelming body of scientific evidence that no jury would fail to conclude that the HIV virus exists, that it is the cause of AIDS and that HIV was sexually transmissible.21

The conclusions of Sulan J fill in an important gap in the wider puzzle of HIV and criminal
liability. Relatively little attention has been paid to the issue of the knowledge of a HIV positive person about the likelihood of transmission or infection. It has usually been assumed that an accused must surely have known the key points found by Sulan J but, in the absence of clear findings to this effect, it would be possible for an accused person to deny the existence of either HIV or AIDS, or the possibility of the sexual transmission of HIV. This possibility would have pre-empted the arguments about knowledge or consent because it simply would have denied the existence of danger about HIV or AIDS. Parenzee essentially forced prosecutors to go “back to basics” and seek judicial confirmation of some fundamental points about HIV. If this ruling is adopted in other jurisdictions, and there seems little reason to doubt the very careful reasoning of Sulan J, it is now virtually impossible for an accused to deny the fundamental parameters of the medical evidence about HIV and AIDS. It is to be
hoped that these propositions will not be re-argued. While a few more “monkey trials” might provide a novel spectacle and grist for the academic mill, they would simply muddy an already obscure area.

Despite the detailed decision delivered by Sulan J in Parenzee, it was not entirely clear to whom the issues decided were relevant, ie did they affect the state of mind of the defendant or his partners? The points decided about the existence and potential danger of HIV and AIDS are clearly relevant to the offences of both endangerment and the actual infliction of harm. They are also relevant to the mental element of both defendants in HIV transmission cases and the partners of any such people who might be argued to have consented to the risk of unprotected sex. For the latter group, it seems increasingly difficult to maintain the possibility foreshadowed in Dica, namely that people may essentially provide informed consent to even the most serious possible harm because the common law has always shied away from the over regulation of personal sexual behaviour. One might suggest that the modern evolution of the laws of sexual offences, especially the reform of rape laws, represents a long journey away from that timidity.

Matthew Groves is a senior lecturer in law at Monash University, Melbourne.

References
1 R v Clarence (1889) LR 22 QBD 23.
2 Respectively under ss 20 and 47 of the Offences Against the Person Act 1861 (UK) (24 & 25 Vict c 100).
3 Papadimitropoulos v The Queen (1957) 98 CLR 249.
4 Papadimitropoulos v The Queen (1957) 98 CLR 249 at 261.
5 R v Linekar [1995] QB 250.
6 See, eg Crimes Act 1900 (NSW), s 61R(2)(a)(ii); Crimes Act 1958 (Vic), s 57; Criminal Code (WA), s 192.
7 R v Mwai [1995] 3 NZLR 149.
8 See the cases noted in B; D (1997) 21 CrimLJ 40; Mutemeri v Cheesman [1998] 4 VR 484; (1998) 100 A Crim R 397.
9 R v Mwai [1995] 3 NZLR 149 at 155-156.
10 Under s 156 of the Crimes Act 1961 (NZ).
11 R v Mwai [1995] 3 NZLR 149 at 156.
12 R v Cuerrier [1998] 2 SCR 371.
13 One assumption of the case was that this provision extended to sex because of the force involved, or rather that sex would normally constitute an assault in the absence of consent.
14 R v Dica [2004] QB 1257.
15 R v Dica [2004] QB 1257 at 1273. It is also worth noting that the Home Office had previously recommended that criminal liability should only attach to the intentional transmission of HIV: United Kingdom Home Office, Violence: Reforming the Offences Against the Person Act 1861 (1998).
16 The same applies to an offence under s 19A of the Crimes Act 1958 (Vic) which creates an offence of intentionally infecting another person with a serious disease.
17 R v Dica [2004] QB 1257 at 1271.
18 R v Dica [2004] QB 1257 at 1271.
19 See, eg Ryan S, “Reckless Transmission of HIV: Knowledge and Culpability” [2006] Criminal Law Review 981; Weait M,
“Criminal Law and the Sexual Transmission of HIV: R v Dica” (2005) 68 Modern Law Review 121.
20 R v Parenzee [2007] SASC 143.
21 Sulan J also rejected related arguments that the tests for the detection of HIV were not scientifically reliable or credible.