Finland: Kenyan-born former 'erotic dancer' sentenced to 4 1/2 years for HIV exposure

Update: 15 December 2011
The Court of Appeal decided that she was not guilty of attempted aggravated assault but only endangerment with a resulting lower sentence – the maximum two years imprisonment. 

According to my sources in Finland who have seen the 2-page decision, the main points are that:
- She was on medication and took care of herself; since she was likely uninfectious, aggravated assault could not be attempted.
- Having unprotected sex was a mutual decision.
- Impossible to know when complainant with HIV's infection took place.

Original post:  22 December 2010
A 28 year-old Kenyan-born woman – who apparently worked as an "erotic dancer" to support herself after her marriage to her Finnish ex-husband ended – has been sentenced to 4 1/2 years in prison by a Tampere court for not disclosing that she was HIV-positive before having unprotected sex with 16 men during the five year period, 2005-2010.

However, she was only diagnosed in April 2006, and although at least one complainant was HIV-positive, the court was unable to prove the provenance of his infection. She was found guilty of 15 counts of attempted aggravated assault and one count of endangerment. (Update: a colleague in Finland tells me that the endangerment charge came from having unprotected sex after having an HIV test but before she knew the result.)

Details are sketchy, since the case was tried behind closed doors and all documents relating to the case have been sealed for 40 years.
 
The only English-language report comes from YLE News

The Pirkanmaa District Court in Tampere on Monday handed down a four-year, six-month prison sentence to a 28 year-old woman for endangerment and attempted aggravated assault, after having unprotected sex with several partners, even though she knew she was HIV positive. Altogether, there were 16 plaintiffs in the case.

The woman has also been ordered by the court to pay almost 20,000 euros in damages and 24,000 euros in court costs.

Described as an "erotic dancer" the woman engaged in unprotected sexual intercourse with numerous partners, even though she was diagnosed in April 2006 with HIV and was aware of the means and seriousness of transmission of the infection.

The defendant underwent a psychological examination, on the basis of which she was judged to have been mentally competent at the time of the acts. The woman worked as an erotic dancer in several cities, including Tampere, Lahti and Jyväskylä.

All the documents related to the case were ordered sealed for a period of 40 years.

This is the first reported case of an HIV-related prosecution in Finland since 2008, when a young Finnish man was found guilty of five counts of criminal HIV transmission and 14 counts of HIV exposure, originally sentenced to ten years in prison, and then given a further two years following an appeal.  It is the 13th such case since prosecutions began in 1989. (Update: My Finnish colleague tells me there was another case earlier this year making the total 14.)

According to an earlier report by YLE News, the woman was arrested prior to February 2010.  Before the police went public that month, seven men (of whom one claimed to have tested HIV-positive) came forward to claim they'd had unprotected sex with the woman without being informed by her that she was HIV-positive. The woman apparently consented to having her picture released,

in hopes that her other possible sex partners might have themselves tested for HIV. 

The case was widely reported amongst Finnish-lanaguage media (see examples here and here via Google translate). Many of the stories' headlines refer to 'HIV-Rachel'.  Apparently the woman sometimes used the name Rachel as a pseudonym, but the headlines have a more stigmatising meaning, and refer to the Biblical Rachel, who was associated with deception (although it was her father, sister and husband, who actually deceived, and not Rachel).

Her defence lawyer is quoted in one of these articles, saying that this was a "grossly harsh sentence".

Indeed it is.  However, her prosection fits within the narrative of many of its northern European neighbours who appear to have a tendency to
a. prosecute foreign-born migrants from high prevalence countries who have moved to small towns or cities
b. prosecute 'sex workers' (Update: My Finnish colleague tells me that she was not a sex worker per se, but actually "an erotic dancer who paid taxes.")

In both cases the legal responsibility for HIV prevention appears to rest solely on the HIV-positive person, even though men have the power to use condoms and should be aware of the risks, especially when having sex with 'erotic dancers'.

Important new research project on HIV criminalisation and law reform in Nordic countries by Prof. Matthew Weait

Following on from yesterday's post on advocacy efforts underway in Sweden, other Nordic countries and Switzerland,  my friend and colleague, Matthew Weait, Professor of Law and Policy
at Birkbeck College, University of London is about to undertake an important new research study in Denmark, Finland, Norway and Sweden next Spring.

With Matthew's permission, I'm replicating the note he sent me with all the details and further background. If you can help, please contact Matthew directly, or leave a comment on my blog.

The Decriminalization of HIV Transmission and Exposure: Advocacy, Activism and Law Reform in Denmark, Norway, Finland and Sweden

Dear Friends and Colleagues,

I am writing to ask if you would be willing to assist in a research project that I will be undertaking in Denmark, Finland, Norway and Sweden in March / April 2012.  The project is summarised and discussed in more detail below, but put at its simplest it will be exploring the ways in which HIV activists and others have sought to reform criminal law concerning HIV transmission and exposure in the region.  My aim is to improve our understanding of advocacy and activism in this field, and to gather evidence about what works and what doesn’t.  Although we have an increasing amount of data about the effects of criminalization, there is very little evidence about how civil society has responded to criminalization, and I am hoping this project will not only provide that evidence but assist people elsewhere in their reform efforts.

As explained below, the research will be conducted primarily through interviews with those who have been involved in reform efforts, and I would like to speak to as many people as possible during my time in your countries.

If you are willing and able to participate I would be very grateful if you could contact me and let me know where and when it would be convenient to meet.  I would also appreciate any advice about who else I should try to contact (including, if possible, politicians, lawyers etc who have been involved).  I will be in your cities between the following dates:
9/3 - 18/3
Copenhagen
18/3 - 23/3
Oslo
23/3 - 30/3
Helsinki
30/3 - 5/4
Stockholm

I am funding this research project myself (though I am hoping to get a travel grant from the Wellcome Trust).  It is not sponsored in any way.

I very much hope to hear from you soon.

All best wishes

Matthew

Summary of Project
The project will explore recent initiatives by Scandinavian civil society organizations and activists to the criminalization of reckless and negligent HIV transmission and exposure in the region.  Despite having levels of HIV prevalence which are among the lowest in Europe, survey data indicates that the Scandinavian countries have among the highest rates of criminalization (as measured by convictions per 1000 people living with HIV (PLHIV)).  This is not only counter-intuitive, when research shows that these are countries which have lower than average imprisonment rates and that their citizens are, in general, less punitive in their attitudes towards offending behaviour than those elsewhere in Europe, it ignores UNAIDS best practice guidance on the use of criminal law as a response to the epidemic. The principal goal of the project is to contribute to our understanding of the effectiveness or otherwise of law reform strategies in the field of HIV and public health.  If, as experts agree, the inappropriate use of criminal law impedes HIV prevention efforts and contributes to the stigmatization of PLHIV, it is important to understand the dynamics of, and barriers to, legal reform.

Background
The European region is suffering from an epidemic of criminalization.  Across the continent, people living with HIV are being investigated, prosecuted, convicted and imprisoned for non-deliberate HIV exposure and transmission, contrary to the best practice guidance of UNAIDS and other international organizations concerned with preventing the spread of HIV and promoting the health and human rights of PLHIV.   It is an epidemic that is impeding efforts to normalize HIV and reduce stigma and to affirm the importance of shared responsibility for sexual health.  It is an epidemic whose impact is felt especially by people who already experience particular social and economic exclusion and vulnerability.  It is an epidemic that, in theory at least, has created some 2.2 million potential criminals in Western and Central Europe.

Although all but a few countries in the region have laws which criminalize HIV transmission and exposure, the scale and intensity of their enforcement is not evenly distributed.  Based on available data relating to HIV prevalence and convictions per 1000 PLHIV, there is a marked difference between the Scandinavian countries (Denmark, Sweden, Norway and Sweden) and those further south.  The former, despite having significantly lower HIV prevalence than the European average, have a markedly higher rate of criminalization.  Sweden and Denmark, for example, have conviction rates of 6.12 and 4.66 per 1000, while the rates for France and Italy are 0.1 and 0.74 respectively.

There is a number of possible explanations for this increased resort to criminal law in Scandinavia compared with elsewhere (including higher levels of inter-personal trust, greater confidence in judicial institutions, and a tradition of robust public health laws), but whatever the causes are, it has resulted in concern among HIV activists and civil society organisations (CSOs) in the region, who have – over the past few years especially – mobilised in efforts to repeal and reform laws and / or constrain their enforcement.

Research Questions
This research project is concerned with the work of these activists and CSOs, and specifically with understanding:

1. what their motivations for legal reform have been;
2. how they have organised nationally and regionally to try and achieve that reform;
3. how they have developed their policy agendas
5. whether, and if so how, they have engaged and communicated with both (a) PLHIV and key groups especially vulnerable to HIV infection and (b) the wider population to achieve “buy in” and broader legitimacy for reform efforts;
6. how they have engaged with policy makers, politicians, and government;
7. the political, institutional and other barriers to reform; and
8. what the results and consequences of reform efforts have been to date, and what they anticipate for the future.

Aims
These questions all focus on an attempt to understand better the ways in which civil society responds to the impact of law on PLHIV.  By focusing on a region in which punitive law has been deployed disproportionately, and where there established and comparatively well-resourced organisations, the research will contribute to our understanding of how expert groups committed to HIV prevention and human rights protection mobilise in the face of what they perceive as a threat to the constituents whose interests they represent.  In so doing, the research will provide original data about the dynamics of health activism and the impact of activism on law and policy.  Two further aims are to provide a practical resource of value to HIV activists and organisations elsewhere in Europe and a record that will contribute to the oral history of the HIV epidemic in Europe.

Matthew Weait’s Background in the Area
I have worked and published in the field of law and HIV for more than a decade, specifically in the area of criminalization.  For the past five years I have been involved at an international level with work on this subject: as a consultant for the EU Agency for Fundamental Rights, HIV in Europe, WHO Europe and UNAIDS, and as an invited expert at their criminalization policy development meetings, and most recently as a member of the Technical Advisory Group for the UNDP-led Global Commission on HIV and the Law.  As a contributor to the policy development work of these organisations I have contributed to a number of important outputs, including a report on a rights-based approach to HIV in the EU (2010), the WHO Europe Technical Consultation on the Criminalization of HIV and other STIs (2007), and the UNAIDS Criminal Law and HIV Policy Brief (2008).  For the Global Commission I was commissioned to write the Report on Criminalization of HIV Transmission and Exposure across the world.  In October 2011 I was invited to give evidence to the Working Group of the Norwegian Law Commission that has been tasked to consider reform of its transmission and exposure laws, and in November 2011 I gave a plenary lecture on this subject at an international sexual health conference in Stockholm.  In addition to this policy work I have published widely in peer-reviewed journals, both alone and with colleagues in other disciplines, and have written a monograph on the subject.  All of this has impressed on me the importance both of understanding the dynamics of law reform in the field, and of developing a stronger, empirically grounded, evidence base.  I see this project as a small, but significant, attempt to do both these things.

Methodology
The research will be qualitative, based primarily on semi-structured interviews and supplemented by policy and other documentation produced by respondents and their organisations.  The analysis will be undertaken using grounded theory (Glaser and Strauss, various dates), coding the data in order to generate concepts and categories so that a theory of law reform initiatives in this particular area may be developed.  It is also intended that the original interviews be made available (subject to participant consent) as a non-academic activist resource.

Relevance of the Project to Policy and Practice
As explained above, the project is highly relevant to policy and practice and will make an original and significant contribution to our understanding of the ways in which HIV activists feed into and influence (or fail to influence) law reform.  In using the data to develop a theory of law reform efforts in the particular area of HIV criminalisation it is hoped that the research will provide a resource of use to researchers interested in health policy making and activist participation more generally; in making available the raw interview material as audio, it is hoped that the research project will provide a resource for activists in other countries and regions who wish to learn about the experience of the Scandinavian peers.

Punitive Economies: The Criminalization of HIV Transmission and Exposure in Europe

Last week, Professor Matthew Weait presented this excellent paper at The Future of European Prevention Among MSM Conference (FEMP 2011) in Stockholm, Sweden.

I'll also quote from the introduction here, but the entire paper is a must-read, and can be dowloaded here.

The European region is suffering from an epidemic of criminalization. Across the continent, people living with HIV are being investigated, prosecuted, convicted and imprisoned for non-deliberate HIV exposure and transmission. It is an epidemic that is causing significant harm: not only directly – to the people who are being subjected to harsh and punitive responses – but indirectly, to efforts aimed at normalizing HIV and reducing stigma, to HIV prevention work, and to attempts to affirm the importance of shared responsibility for sexual health. It is an epidemic whose impact is felt especially by people who already experience particular social and economic exclusion and vulnerability. It is an epidemic that has created, based on UNAIDS HIV prevalence estimates for 2009, some 2.2 million potential criminals in Western and Central Europe. It is an epidemic that we have to respond to collectively, and which for we have to find a cure.

In this paper I will do three things. First, I will provide an overview of the scope, extent and distribution of criminalization in the region, and in doing so to emphasise the disparities that exist and the problematic consequences of these disparities for PLHIV. Second, I will discuss what I understand to be the reasons for criminalization, and its variation across countries. Third, and bearing in mind these reasons and variations, I will discuss some of the responses which civil society organisations and others have been making to criminalization, and at additional interventions we might consider exploring and developing.

The paper is especially timely given important developments in Switzerland and the Nordic countries, where law reform is ongoing in Denmark, Norway and Switzerland, and civil society advocacy moving towards law reform is taking place in Finland and Sweden.

One of the most interesting aspects of Prof. Weait's paper is that he finds a correlation between attitudes towards interpersonal trust and the high per capita conviction rates in the five countries mentioned above, which helps explain why the criminal law's approach to HIV in these countries focuses on public health rather than human rights.

These correlations between interpersonal trust and conviction rates in the region become even more interesting when we learn that, according to reliable empirical research, the Scandinavian countries have a lower fear of crime, are less punitive in their attitudes to those who commit crime, and – in general – have lower rates of imprisonment for convicted offenders than other countries. If this is the case, why would HIV transmission and exposure criminalization be so high?

My answer to this is tentative, but it seems plausible to suggest that the sexual HIV cases that get as far as court and a conviction are ones which are paradigm examples of breach of trust. It is not inconsistent for a society to have a lower than average generalised fear of crime, or lower than average punitive attitudes, and at the same time to respond punitively to specific experiences of harm, especially when that arises from a belief that the person behaving harmfully could have behaved otherwise and chose not to. Indeed, it seems entirely plausible that where there are high expectations of trust, breaches of trust (for example, non-disclosure of HIV status) are treated as more significant than where value in trust is low. Combine this with countries (such as those in Scandinavia) which are committed to using law to ensure public health, and which consequently are prepared to using it to respond to the risk of harm (HIV exposure), as well as harm itself (HIV transmission), and we can see why the pattern of criminalization appears to be as it is.

Global: 'Where HIV is a crime, not just a virus' - updated Top 20 table and video presentation now online

Where HIV Is a Crime, Not Just a Virus from HIV Action on Vimeo.

Here is my presentation providing a global overview of laws and prosecutions at the XVIII International AIDS Conference, Vienna, on 22 July 2010.

Abstract: Where HIV is a crime, not just a virus: a global ranking of prosecutions for HIV non-disclosure, exposure and transmission.

Issues: The global (mis)use of the criminal law to control and punish the behaviour of PLHIV was highlighted at AIDS 2008, where Justice Edwin Cameron called for "a campaign against criminalisation". However advocacy on this vitally important issue is in its infancy, hampered by lack of information on a local, national and international level.

Description: A global overview of prosecutions to December 2009, based on data from GNP+ Global Criminalisation Scan (http://criminalisation.gnpplus.net); media reports collated on criminalhivtransmission.blogspot.com and WHO Europe pilot human rights audit. Top 20 ranking is based on the ratio of rate per year/per HIV population.

Lessons learned: Prosecutions for non-intentional HIV exposure and transmission continue unabated. More than 60 countries have prosecuted HIV exposure or transmission and/or have HIV-specific laws that allow for prosecutions. At least eight countries enacted new HIV-specific laws in 2008/9; new laws are proposed in 15 countries or jurisdictions; 23 countries actively prosecuted PLHIV in 2008/9.

Next steps: PLHIV networks and civil society, in partnership with public sector, donor, multilateral and UN agencies, must invest in understanding the drivers and impact of criminalisation, and work pragmatically with criminal justice system/lawmakers to reduce its harm.

Video produced by www.georgetownmedia.de

This table reflects amended data for Sweden provided by Andreas Berglöf of HIV Sweden after the conference, relegating Sweden from 3rd to 4th. Its laws, including the forced disclosure of HIV-positive status, remain some of the most draconian in the world. Click here to download pdf.

Finland: Appeal court increases Hakkarainen sentence

Aki Hakkarainen, the young Finnish man found guilty of five counts of criminal HIV transmission and 14 counts of HIV exposure in April 2008, and sentenced to ten years in prison in August 2008, will now have to serve a further two years in prison, following an appeal.

There's no explanation in the brief report in the Helsinki Times who launched the appeal but since the prosecutor had asked for a minimum of twelve years, it seems that it probably wasn't Hakkarainen himself.

Finland: Young man sentenced to ten years for HIV transmission, exposure

A 25 year-old Finnish man, who has been HIV-positive since 16, has been sentenced to ten years in prison for five counts of aggravated assault (criminal HIV transmission), 14 counts of attempted aggravated assault (criminal HIV exposure), and one count of rape. He will also have to pay the 21 female complainants a total of €330,000 (£263,000/$485,000) in damages.

I first reported the case in April, when Aki Hakkarainen was found guilty.

The case has been widely reported globally, including the International Herald Tribune, as well as in Thailand, New Zealand, and criminalisation-crazy Canada.

The most detailed reports come from the international edidtion of Finland's Helsingin Sanomat. I include three here, in reverse chronological order: the sentencing report; the pre-sentencing hearing; and a report, from last year, about the impact of the police publishing his name and photograph throughout Finland in a 'fishing expedition' masquerading as a public health exercise.

Rovaniemi HIV case brings 10-year custodial sentence and over EUR 300,000 in damages
Helsingin Sanomat
25.8.2008

The Rovaniemi District Court today handed down a sentence of ten years’ imprisonment on Aki Matti Hakkarainen, 25, who was found guilty of having intentionally spread HIV through unprotected sex with several women.

The sentence was passed on 14 counts of attempted aggravated assault, five counts of aggravated assault, and one count of rape.

The sexual encounters all took place between between 1999 and 2004, in spite of the fact that Hakkarainen knew he had contracted HIV at the age of sixteen.

Hakkarainen was also ordered to pay compensation to his victims totalling around EUR 330,000.

The victims were slightly disappointed by the judgement, as they had sought nearly half a million euros in damages from the defendant.

The court ordered Hakkarainen to pay for permanent harm caused to several of the women with whom he had had unprotected sex. One woman is to receive 55,000 euros, and four others 45,000 euros each.

Further payments are called for to compensate for the mental trauma caused, with sums varying in this case from EUR 600 to EUR 8,000 per victim.

The prison term was lengthened by an earlier suspended sentence that the court now ordered to be put into effect.

The court had ruled earlier this month that Hakkarainen was fit to be tried and sentenced for the offences, after a psychiatric examination had been carried out in July. In its interim ruling, the court had stated that the man was found guilty of transmitting HIV intentionally to at least five women. In addition, he had had unprotected sex with another 16 women, exposing them to possible infection.

The prosecutor had called for a minimum sentence of 12 years' imprisonment.

Court action against HIV man continues in Rovaniemi
Helsingin Sanomat
13.8.2008

The legal proceedings against a 25-year-old man suspected of having intentionally spread HIV through unprotected sex with several women continued today in the city of Rovaniemi in Northern Finland.

The District Court examined the results of the psychiatric examination that was ordered for the suspect and completed last month, and deemed that the defendant was in a fit mental state to be sentenced for the offences.

In its interim ruling the court had stated previously that the man was found guilty of transmitting HIV intentionally to at least five women. In addition, he had had unprotected sex with another 16 women, exposing them to possible infection.

The prosecutor has called for a minimum sentence of 12 years' imprisonment. The maximum permissible sentence under the law would be 13 years. A judgement will be handed down on August 25th.

The man engaged in unprotected sex with numerous women between the years of 1999 and 2004, in spite of the fact that he knew he had contracted HIV at the age of sixteen. The unprotected intercourse took place in Rovaniemi, Jyväskylä, and Äänekoski.

The case attracted some attention late last year, when police published a photograph of the man and disclosed his name - something seldom done before trial - in order that other sexual partners who might have been infected could be reached.

Publishing photo of HIV man leads to discovery of yet another HIV-positive victim from years ago
Helsingin Sanomat
10.10.2007

The police's radical step of going public with the photograph of a 24-year-old Rovaniemi man suspected of having intentionally spread HIV through unprotected sex has led to four new women voluntarily coming forward as suspected victims. In the first tests one of them has indicated positive for the virus.

"After having seen the photograph, the woman approached the police and was tested for HIV. It turned out that the woman, born in 1980, has unknowingly been HIV positive since 2003. Now she will receive treatment", explains Chief Inspector Jukka Haataja from the Rovaniemi police.

Of the last four women who have come forward, three are from the city of Rovaniemi in Northern Finland near the Arctic Circle, and one is from the south of the country. Three of the women were on the police list of suspected victims.

Twenty-two of Aki Hakkarainen’s victims have filed a report of an offence against him. Three of them have contracted the HI-virus, and the first test of a further two proved positive. These two have to wait for the results of the second test for about a week.

In December 2005, Hakkarainen received a conditional sentence of one year and nine months for a similar offence. He raised no objections to the publication of his picture by police, stating that he wished to assist in making sure that all those partners who might have been infected could be reached.

The police justified the action of publishing personal information in this way on grounds of safeguarding health, and for investigative reasons.

Finland: Young man found guilty of multiple counts of HIV transmission and exposure

A 25 year-old Finnish man has been found guilty of five counts of criminal HIV transmission and 14 counts of HIV exposure.

Aki Hakkarainen was arrested in October 2007 after a number of women had complained to the police. He had previously received a 21 month conditional sentence for, what one (rare) English language website, Helsingin Sanomat , reported at the time as "a similar offence."

His photo was then published in newspapers throughout Finland.

He raised no objections to the publication of his picture by police, stating that he wished to assist in making sure that all those partners who might have been infected could be reached.

The police justified the action of publishing personal information in this way on grounds of safeguarding health, and for investigative reasons.

This resulted in a total of 21 women coming forward, although 'only' 19 of the cases resulted in a guilty verdict.

The man is now being assessed psychologically before sentencing; the prosecutor has asked for 12 years, which seems remarkably lenient compared with other jurisdictions. He may also have to pay damages of up to €500,000.

The case caused a sensation in Finland last October (and most likely again this week) but so far the only additional English language information I can find is from last year, here and here.

I hope to have more details soon when a Finnish friend has translated some more articles, including this Wikipedia entry, for me.

Article originally from Agence France-Presse on the RTE News website, below.

Finnish man wilfully spread HIV
Monday, 28 April 2008 15:50

A Finnish court has ruled that a man intentionally transmitted HIV, the virus that causes AIDS, to five women and had unprotected sex with at least 14 others, exposing them to possible infection.

In all, 21 women brought charges against Aki Hakkarainen for wilfully attempting to infect them with HIV, but the court in the northern Finnish town of Rovaniemi found there was insufficient evidence in two of the cases.

It ordered the 25-year-old Finn to undergo a psychological examination before his sentence and the amount of damages were determined.

Hakkarainen would await sentencing in prison since he was likely to continue his 'criminal activities' if released, the court said in a statement.

The prosecutor in the case has called for Hakkarainen to be sentenced to 12 years behind bars, while the plaintiffs have requested total damages to the tune of €500,000.