US: Lambda Legal Appeals Conviction of HIV-Positive Man (Press Release)

Lambda Legal Appeals Conviction of HIV-Positive Man

"This conviction cannot stand because someone who engages in safe sex is not guilty of criminal transmission of HIV."

(Des Moines, IA, June 14, 2012) - Today Lambda Legal filed an appeal on a petition for post-conviction relief in the Iowa Supreme Court on behalf of an HIV-positive Iowa man, Nick Rhoades. Rhoades was sentenced to 25 years in prison and lifetime registration as a sex offender after having a one-time sexual encounter with another man during which they used a condom.

"The law only applies to those who intend to expose others to HIV," said Christopher Clark, Senior Staff Attorney for Lambda Legal. "This conviction cannot stand because someone who engages in safe sex is not guilty of criminal transmission of HIV.  Nick's use of a condom clearly indicates that he was protecting his sexual partner from exposure."

In June 2008, Rhoades had a one-time sexual encounter with Adam Plendl during which they used a condom. Several days later, Plendl was told by a friend that Rhoades might be HIV-positive, and he contacted the police. The police arrested Rhoades in September 2008, and on the advice of his counsel, he pled guilty. Despite the fact that a condom was used and Mr. Plendl did not contract HIV, Rhoades was convicted of intentionally exposing Plendl to HIV. He received the maximum sentence: 25 years in prison and lifetime registration as a sex offender. Several months later, the court suspended his prison sentence, and he was placed on supervised probation for five years. On March 15, 2010, Rhoades filed an Application for Post-Conviction Relief, arguing that he had received ineffective assistance from his counsel who advised him to plead guilty.  In December 2011, the court denied the application. Lambda Legal is representing Mr. Rhoades in his appeal to the Iowa Supreme Court.

"To think that for the rest of my life I'll be branded as a felon and sex-offender, all because of a one-time safe sex encounter where no HIV was transmitted, is unimaginable," said Nick Rhoades.

Thirty-nine states have HIV-specific criminal statutes or have brought HIV-related criminal charges resulting in more than 80 prosecutions in the United States in the past two years alone. Among other things, HIV criminalization perpetuates the many myths and misconceptions that fuel other types of discrimination against people living with HIV. It sends an inaccurate message regarding prevention responsibility, creates a disincentive to getting tested, and may actually discourage disclosure of HIV status.

"Criminal laws, like the one in Iowa, unjustly target people living with HIV and subject them to unwarranted prosecution and punishment," said Scott Schoettes, HIV Project Director for Lambda Legal. "By representing people like Nick Rhoades, we are doing what we can to ensure these outdated and unnecessary laws are not abusively misused against people whose conduct is not actually prohibited under them."

The case is Nick Rhoades v. State of Iowa, read the brief here: http://www.lambdalegal.org/in-court/legal-docs/rhoades_ia_20120613_proof-brief-of-applicant-appellant-and-request-for-oral-argument

Norway: First gay man to be prosecuted goes public, makes a real difference (corrected)

Correction: Louis Gay tells me that he is not the first gay man to be prosecuted in Norway.

I am the first one to be prosecuted for practicing "safer sex" (oral sex, only. with no condom and no contact with sperm or precum), without transmitting any virus!

Original post: Yesterday, Bent Høie (Conservative), the leader of the Standing Committee on Health and Care Services, raised the issue of HIV in the Norwegian Parliament (Stortinget). He was concerned about the rise in new diagnoses in the country, and discussed increases in unprotected sex amongst gay men and other men who have sex with men, as well as lack of knowledge of HIV and HIV-related stigma within broader Norwegian society.

Notably, he linked these concerns with Section 155 of the Norwegian Penal Code. This infectious disease law enacted in 1902 is known as the ‘HIV paragraph’ since it has only ever been used to prosecute sexual HIV exposure or transmission. By placing the burden on HIV-positive individuals to both disclose HIV status and insist on condom use, the law essentially criminalises all unprotected sex by HIV-positive individuals even if their partner has been informed of their status, and consents. There is no distinction between penalties for HIV exposure or transmission. Both “willful” and “negligent” exposure and transmission are liable to prosecution, with a maximum prison sentence of six years for “willful” exposure or transmission and three years for “negligent” exposure or transmission.

The law is currently in the process of being revised by the so-called Syse-committee (named after its chair, Professor Syse but officially titled The Norwegian Law Commission on penal code and communicable diseases hazardous to public health), but at the moment, the current law stands.  At least seventeen individuals have been prosecuted since 1999 – and until this year all prosecutions were as a result of heterosexual sex despite the fact that most HIV transmission in Norway is the result of sex between men.

Earlier this year, Norwegian prosecutors decided to prosecute the first gay man under this draconian law. Although transmission had been alleged, phylogenetic analysis ruled out Louis Gay's virus as the source of the complainant's infection. Still, he is being prosecuted for placing another person at risk despite the only possible risk being unprotected oral sex, and despite Louis disclosing his HIV-positive status prior to any sex (which the complainant denies).

Louis decided to go public in November 2011 during the initial police investigation. Since then he has given interviews to some of the largest circulation newspapers and magazine in Norway, as well as to national TV and radio. I had the pleasure of meeting Louis in Oslo in February when he addressed the civil society caucus that produced the Oslo Declaration.

As well as his own blog, Louis now also blogs about his experience for POZ.com.  In his second post he notes that

I chose to go public before any final decision was made from the State attorney office, with the chance of provoking them to prosecute me because they don't want to risk being criticized by media of giving in to pressure. This is fine with me.  Like I've stated before I want to have my case tried before a court. Anyway! Now we all have to wait until the trial before we get any further answers about my case. In the meantime the discussion whether we should have a law like this (and using it like in my case) is protecting the society from more infections or just making it worse, continues. 

 So, yesterday, Louis's brave stand paid off.  Conservitive MP Bent Høie, the leader of the Standing Committee on Health and Care Services, mentioned Louis' case in Stortinget.

Then it is a paradox that the social-liberal Norway still has an HIV-paragraph that is criminalizing HIV-positive people's sexuality. This has now been brought to a head by the public prosecutor who has brought charges against HIV-positive Louis Gay, who has not infected any other person and who conducted what we call "safer sex", which in reality is the health authorities' recommendations. I am aware that Syse-committee is now working on this issue, but it is still necessary to highlight this in this debate, because current criminal law works against prevention strategy and stigmatize HIV-positive people. I hope that today's debate could be the start of that we again have a strong political commitment to reducing new infections of HIV and to improve the lives of those who are HIV-positive - which in reality are two sides of the same coin."
(Unofficial translation by Louis Gay)

I'm so impressed with Louis's courage and determination, and I think that he actually might just be making a difference by going public.  If you support Louis, let him know by leaving a comment here, or on his own blog, or at POZ.com.

Sweden: Gay doctor convicted of HIV exposure has sentenced reduced (update)

Update: 10th April 2012
An HIV-positive doctor who was previously convicted for 'reckless endangerment' for having had unprotected sex (see below) has had his sentence reduced by the Stockholm Court of Appeal, according to a brief report at DN.se.

Originally convicted to ten months imprisonment by the District Court, the Court of Appeal dropped one of the charges and reduced the man's remaining prison sentence to four months primarily because there was no evidence of when the physician's partners were infected.

Original post: 22nd June 2010
A gay man in Stockholm who works as a doctor has been sentenced to ten months in prison for 'reckless endangerment' and must pay 26,900 kronor (€2825) compensation for having unprotected sex without disclosure with another man.

However, the more serious charge of aggravated assault brought by a second man who alleged that he became HIV-positive as a result of unprotected sex with the defendant was dismissed by the court because "it can not be ruled out that he was infected by someone else."

The case, reported in the English language at The Local.se, is at least a partial victory: the court appeared to understand that phylogenetic analysis can only be useful as 'proof' of transmission if all previous sexual partners prior to an HIV-positive test are also tested and those who are positive included in the analysis.

Lawyer Elisabeth Massi Fritz, representing the two men, told news agency TT that the ruling will be appealed. "The prosecutor and I agreed that we would appeal if any of the charges were to be dismissed."

The man was facing a further charge of aggravated assault, with an alternative charge relating to causing the HIV infection. These charges were dismissed by the court as it could not be concluded that the doctor was responsible for the infection. Elisabeth Massi Fritz says she is not surprised at the verdict but expressed disappointment that one of the charges was dismissed.

"There can be no other person that has infected my client. But we have to obtain a supplementary investigation to prove this," said Massi Fritz.

During sentencing the judge said that since the man worked as a doctor, he ought to have known better.

The district court concluded in its ruling that the doctor's actions had threatened the lives of the men and that his offence should be considered especially serious, given that in his professional capacity he should be aware of the Swedish Institute for Infectious Disease Control (SMI) rules of conduct.

However, since the maximum prison sentence is two years for this 'crime' he was still somewhat lenient - if you accept that a prison sentence for not disclosing your HIV status before sex that may risk HIV exposure (and we don't know about the doctor's viral load, or the sexual acts or sexual position which may have reduced the risk to almost zero, or better than using condoms) is ever warranted.

France: Untested gay man found criminally liable for two previous partners' HIV acquisition

A 39 year-old gay man who was so in denial of the possibility that he might have been HIV-positive that he refused to take an HIV test until 2007 has been found criminally liable for infecting two former partners in 2003 and 2005.

He was sentenced last Thursday by the criminal court of Draguignan to two years in prison, one year of which was suspended, with a further three years' probation. Having already served his sentence whilst on remand, he was freed after the hearing but will have to wear an electronic bracelet for a year.

The man, a special education teacher named only as Christophe in the most detailed French language report (his accuser's first names were also published which is why I am using his first name) was found guilty of "administering noxious substances leading to mutilation or permanent infirmity". He will also have pay between 30,000 and 50,000 euros to each of the two men.

The case dates back to May 2003 and September 2005 when on two separate occasions Christophe had unprotected sex with each of the two complainants, Pierre-Yves and Julien.  Both testified that Christophe had reassured them he was he was "clean" and that unprotected sex "would be OK."

Although it's not clear how they both discovered that Christophe may have been the common source of their infection, the two men complained to the police in May 2006 after discovering their HIV-positive status.

A police investigation subsequently found that both were HIV-negative prior to their meeting with Christophe (although how they found this is not explained). The police also found all (!) the sexual partners the men had had before and after Christophe. The news reports do not state how they were certain that Christophe was, in fact, the source of both men's HIV, and there is no mention of the use of phylogenetic analysis.

Regardless, the most worrying part of the case is that Christophe did not himself test HIV-positive until 2007.  However, according to one of the news reports

The police investigation revealed that although he "knew" he had been infected by a former partner he refused to be tested until 2007.  According to the psychiatrist, he was in "denial about the reality of his illness."  To his lawyer Michel Roubaud, who pleaded for his release, "the element of intent is impossible to characterize."

How does someone "know" they are HIV-positive without having an HIV antibody test?  Certainly, one can suspect this, but that's not the same as "knowing".  This is characterised in law as "wilful ignorance" but then the law does not take into account the stigma of HIV and that stigma can lead to denial.

As far as I am aware there have only been two previous cases where a court has found someone criminally liable for another's HIV infection despite not having had a confirmed HIV-positive diagnosis.

The first took place in England in 2004, where a man pleaded guilty to 'reckless' HIV transmisison despite not having had an HIV-positive diagnosis but rather he "had been warned he was a potential carrier of the virus."

The second took place in Switzerland in 2008. Here, Switzerland's highest court - the Federal Court in Lausanne - ruled that a man who was unaware of his infection when he had unprotected sex that transmitted HIV was still criminally liable for his partner's HIV-positive diagnosis because he did not disclose his sexual history which included a former partner who was living with HIV. 

Update (Tues 21st, 8.30pm): I'm also now aware of a case similar to this French one (untested gay man that claimed he was HIV-negative when he apparently 'should have been aware he might have been HIV-positive because of a risky past') that took place in Rastatt, Germany in 2010. In this case he was found guilty of reckless grievious bodily harm and received a 2 1/2 year prison sentence.

In this current case, several things appear to have gone against Christophe.  First, after one of the men accused him of infecting them, he apparently emailed him a falsified HIV-negative test (although this is not the same as showing a falsified test in order to obtain unprotected sex under false pretences.)

Second, both men testified as to the negative impact of having HIV on their health and career.

Today, Julian is on triple therapy.  He had to give up being a nurse in pediatrics and settle for an administrative job in a Swiss hospital. Pierre-Yves, too, had to give up his career as a caregiver, he now works as a car salesman.

What seems incredible about this case is that two gay men would consider themselves victims under such circumstances.  Until recently most prosecutions in France were of heterosexual men.  It seems the concept of shared responsibility for HIV prevention for gay men has now well and truly disappeared.

Finally, the shorter article on this case, in Le Point, also states that another man has also recently been found criminally liable for HIV transmisison (although I imagine this man was diagnosed HIV-positive before having sex with the complainants). It states that on February 14, a 38 year-old bus driver was sentenced to six years in prison for infecting two partners (gender not specified), one of whom subsequently committed suicide.

Singapore: Two men with HIV jailed for non-disclosure to same man at different times

A 27 year-old former civil engineer and a 48 year-old married man who had casual sex at different times with a 37 year-old man (who subsequently tested HIV-positive) have each been sentenced to 18 months in prison because they did not disclose they were HIV-positive. 

This is the first time that I'm aware that one complainant has resulted in two different convictions, and highlights the unbelievable unfairness of a criminal justice approach to HIV prevention.  There have now been three convictions for HIV non-disclosure in Singapore - all of those prosecuted have been men who had sex with men during a single encounter.  The first, in 2008, was simply for performing oral sex, for which there is no HIV risk for the receptive partner. 

The 27 year-old was the first person to be sentenced under the 2008 Infectious Diseases Act for having oral sex (without condoms) and anal sex (with condoms) and not disclosing he was HIV-positive with the 37 year-old in January 2009, according to a report on channelnewsasia.com.  He also had an undetectable viral load.  Taken together, this means there was no risk to his partner.

In his mitigation, he said he found it difficult to disclose his HIV-positive status. He said the intention was not to harm the victim, but was one of "self-protection" as he was afraid of being "abandoned by his social circle". He told the court his condition was under control by medication when he met the victim and that they had protected sex.
However, the prosecutor for the Ministry of Health, K Kalaithasan, called for a jail term of more than a year, saying the victim would not have engaged in sexual activity if he had known about the man's HIV status. In sentencing, District Judge Siva Shanmugam said the nature of the offence was "grave". He said by failing to inform the victim for his "own selfish reasons", the offender had "endangered the safety of others".

The second man, who had sex with the 37 year-old in May 2009, was also given an 18 month sentence.  He says that he couldn't have been the source of the complainant's infection because he was the receptive partner and the 37 year-old had used a condom.  Ironically, the complainant could not confirm that he used a condom (and surely, as a 'top', it was his responsibility to wear one!) 

In a remarkably sympathetic report in The Straits Times, the man reveals how the prosecution has had a devastating effect on his wife and how he had considered suicide.

When a 48-year-old HIV-infected man pleaded guilty last November to having had sex with another man in May 2009 without revealing his status, he knew he might have to go to jail. Since then, his sentencing has been adjourned a few times to give him time to settle his affairs — including telling his wife about this court case. He could not bring himself to do it. He told The Straits Times last month that she knew he had tested positive for the virus that causes Aids, but he could not tell her about his conviction because she was already stressed in her administrative job.

“I can’t burden her more. I don’t know how to face her,” the former quality assurance technician said.

She now knows. The 40-year-old woman told The Straits Times yesterday that he broke the news to her just before Chinese New Year, but said she was in no frame of mind to say more. The couple have no children. Her slim, short and bespectacled husband, who did not have a lawyer, broke down in tears yesterday on hearing that he would be behind bars for 1-1/2 years. ...

Sometimes I feel like killing myself. But I can’t do it... I hold back because of my family,” he added.

Again, the sentencing judge pulled no punches when sending the man to prison.

In passing sentence yesterday, District Judge Janet Wang said it is not the intention of the legislature to enforce the law against every HIV-infected person. However, she added, the penalties for keeping one’s HIV status a secret and failing to obtain a sex partner’s consent to being exposed to the risk of infection are in place for deterrence and to reflect the gravity of such offences. The judge said that, for his own sexual gratification, the accused had knowingly concealed his HIV status from his male sex partner, which she said was ‘highly unconscionable’ and showed a disregard for the other person’s well-being. “Such a deliberate omission only heightens his culpability,” she said.

I do wonder about "the intention of the legislature", though, and whether Singapore will, in fact, "enforce the law against every HIV-infected person" who comes to their attention when a newly infected individual is looking for someone to blame for their infection. 

The prosecution of both of these men seems especially unjust since the first man could not have been the source of the complainant's infection and the second man was relying on the complainant to wear a condom.  But since the law is only about non-disclosure and not about risk, or transmission itself, convictions are oh-so-easy, making all HIV-positive individuals extremely vulnerable to prosecution. 

Canada: Quebec gay man arrested, remanded in custody for non-disclosure prior to bareback orgy

A judge in Quebec has remanded a 32 year-old gay man in custody after the Crown prosecutor branded him a "danger to the public" following allegations that he did not disclose that he was HIV-positive with men he met for sex on the internet using the pseudonym bbackbottom31.

The man currently faces four charges relating to sex with two men during a bareback orgy – two aggravated assault charges and two aggravated sexual assault charges – but since his name and photo have appeared in the press along with the usual 'fishing expedition' from police to contact them if they have been in contact with man via the internet or in person, there are bound to be more charges.

In some of the most stigmatising reporting to date of a gay case of non-disclosure in Canada, several articles in Le Journal de Quebec (here and here, in French only) paint the man to be a sexual predator who didn't disclose "to make others pay" and his willing sexual partners to be innocent victims of sexual assault.

The reality of gay sexual mores is not so black and white.  He advertised himself as a bareback bottom - and even if he didn't disclose his status, any gay man who chose to have unprotected sex with him should have been aware of the risks (which, as a recent case in British Columbia has shown may not actually reach the 'significant risk' test for disclosure of HIV-positive status).

This arrest and the ensuing publicity is a travesty.

Highlights (if I can call them that) of the two articles in English, using Google translate, are below

HIV positive, he recruited on the web

A public danger 
The Crown prosecutor objected to his release given the seriousness of the charges. In all, four charges have been brought so far against this individual, two for aggravated assault and two for aggravated sexual assault. "There are different ways to commit aggravated assault. It can be wounding, maiming, disfiguring or, as is the case in this context, life-threatening danger," said Mr. Gagnon... "He sexually assaulted by not giving information that would have provided free and informed consent and, in parallel to this, he endangered the lives of others."

Victim of a web relationship
A resident of Quebec, [accused's name], 32, faces justice for having unprotected sex with alleged victims met on the internet, whilst he knew he was HIV-positive. Using gay sites to meet with his partners, [he] met at least two victims in recent weeks. Jimmy (not his real name) fell into his trap in the autumn of 2009. Since that time, he believes he had unprotected sex between seven and ten times with the defendant.
 
"When I met him, he assured me he was clean and safe. I was single in those days.  Subsequently, when I had a boyfriend we met for threesomes," said the totally desperate 40 year-old. Jimmy will not know if he has contracted HIV for three months. Meanwhile, he is receiving a preventive treatment that gives him several side effects. His ex-boyfriend is also a complainant in the case.

[The article then says that Jimmy was told that the man was HIV-positive by a nurse when he was visiting him in hospital. When confronted, Jimmy was told it was none of his business. But Jimmy claimed he knew that the man continued to have unprotected sex with men he met on the internet.]
 
Act of revenge
The defendant frequented sites like Gay411 under the pseudonym bbackbottom31.  Investigators believe they may have been other victims.  At least two other men were allegedly involved in sexual activities between [the accused] and Jimmy and his partner. "You cannot gamble with the lives of people like that."...The orgy took place at the residence of [the accused], at [his streeet address].

[The final few sentences don't make sense as translated but appear to suggest that Jimmy thinks the accused didn't disclose as an act of revenge.]

Le prévenu faisait croire à ses victimes qu’il était représentant sur la route. [The accused gave the impression of his victims he was representing on the road.] [Il] aurait pu agir par vengeance. [He could have acted out of revenge. Se sachant atteint de la maladie, il aurait décidé d'en faire payer le prix aux autres. [Knowing the disease, he decided to make it pay to others.]

France: Gay man imprisoned for two years for infecting partner; trial debates shared responsibility

A gay man from the eastern French city of Besançon was sentenced to two years in prison last week for lying about his recently-learned HIV-positive status and then having unprotected sex with his ex- partner who is now also HIV-positive.

According to an article in Le Progres, the man, now 36, and his ex, now 29, began a relationship in 2005. They used condoms at first but after some time together decided to test for HIV so that they could have unprotected sex by mutual agreement.

But it was alleged that the accused lied to his partner, telling him that his HIV-positive test was negative. He told the court he had been "in denial" and apologised to his ex, according to a shorter AFP article, which also notes that it was only a matter of weeks before his ex discovered the letter from the HIV testing centre confirming his partner's HIV-positive status. The ex tested HIV-positive in July 2006.

The accused was charged with "administration of harmful substance causing mutilation or permanent disability."  It was alleged that only the accused could have infected the complainant because the ex only had sex with accused, whereas the accused allegedly had multiple relationships.  The reports do not mention whether phylogenetic analysis was used.

According to the AFP article, the trial included "a debate on the issue of shared responsibility in sexual matters, as opposed to the criminalisation of transmission" and the prosecutor took this principle into account by asking for a two year suspended sentence. However, last week, the court ruled that the accused bore full responsibility and was sentenced to two years in prison.  His lawyer, Claude Varet, plans to appeal.

A statement from French HIV prevention group, The Warning, notes the issue highlighted by this case. 

This trial confirms what surveys have shown for more than fifteen years: that HIV-negative individuals stop using condoms when the relationship becomes stable. This "standard" imposes a terrible strain for people with HIV because there continues to exist a high degree of discrimination and stigma against them.... Indeed, how do they disclose their HIV-positive status without fear when the likely result is the risk of rejection and the end of the relationship. 

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.

Canada: Gay man in Ottawa accused of HIV exposure charged with attempted murder faces further charges (update 2)

Update: August 18 2010

The 29-year-old man gay accused of not disclosing his HIV-positive status to several men before otherwise consensual sex now faces 26 charges in Ottawa and further five charges in Kitchener according to the latest update from Canada's gay newspaper and online resource, Xtra.ca, which continues to report responsibly about the case by not disclosing the names of the accused, unlike the mainstream press.

According to court documents obtained by Xtra this week, the accused is now facing 26 charges: four counts of aggravated sexual assault, four counts attempt murder, five counts of sexual assault, eight counts of breaching probation, and one count of child pornography possession. He is also facing a total of five charges In Kitchener for similar offences, including three counts of aggravated sexual assault and two failure to comply with probation conditions.

A 24-year-old co-accused Kitchener man also accused of not disclosing his poz status is facing two charges of aggravated sexual assault. He and the Ottawa accused man allegedly had a foursome with two other men in Kitchener. He has been on house arrest  since May. His next court appearance is scheduled August 24.  The accused has a Kitchener bail hearing scheduled there via video link on Aug 27. He was arrested on May 6. By the time his next Ottawa Sept 9 court appearance happens, he will have spent more than four months behind bars.

Update: June 30 2010

The 29-year-old man gay accused of not disclosing his HIV-positive status to several men before otherwise consensual sex has had his charges upgraded to include attempted murder, according to a report in the Ottawa Citizen.

The four counts of attempted murder were laid against [name of man] in relation to four of his alleged victims. [The accused] has also been charged with four counts of administering a noxious substance — HIV — to the four men. It now brings the total number of charges against [the accused], who is still facing 14 charges of aggravated sexual assault as well as multiple counts of sexual assault and breach of probation, to 31. [The accused] also faces seven charges in Waterloo on similar accusations.
[He] was arrested in early May after an 18-year-old Ottawa man [allegedly] contracted HIV after the two had unprotected sex several times in January. A bail hearing for Boone, which began Tuesday, is expected to continue next week. The evidence presented during that hearing is subject to a publication ban.

This is the third person to face attempted murder charges in Canada since the murder trial of Johnson Aziga.

In related news, a few weeks ago, Xtra.ca ran an article explaining to HIV-positive, -negative, and untested gay men what the law in Canada actually means. In particular, it highlights that Canada's focus on non-disclosure is sending the wrong message: disclosure is "a lousy strategy for staying HIV-negative."

Only having sex with negative guys? Think again. “Is asking your partners if they have HIV before having bareback sex a good way to prevent HIV transmission? The answer is no,” says Murray Jose, executive director of PWA Toronto. There are two main reasons for this. Firstly, according to the Canadian AIDS Society, about 20,000 Canadians — or 30 percent of Canada’s HIV population — are HIV-positive and don’t know it. Secondly, while most poz guys are committed to ensuring HIV ends with them, it’s a difficult subject to broach, meaning many people — whether poz or neg — have trouble discussing it, especially in the heat of the moment.

Original post: May 11 2010

The good news from Canada didn't last long. Within hours of the not guilty verdict in Vancouver, another gay man from Ottawa was being vilified in the press following an inappropriate press release from the Ottawa police.

Excellent work is being done following the intricacies of the case by Noreen Fagan and Neil McKinnon reporting for Xtra.ca.

They highlight the concerns amongst gay and HIV-positive advocates in Canada, and quote a regular blog reader, Michael Burtch, who is also a friend of the accused.

“It’s a witch hunt is what it has turned into. It’s very frightening for a lot of people in the HIV community to see what’s happening,” says Burtch. “The feedback that I have been getting from talking to people is that they feel as though it could just as easily be them. So there is I think a very strong swelling of support for [him] from the HIV positive community who feel a lot of empathy for his situation.”

Burtch is critical of the way the accused has been portrayed by the police and the mainstream media.

“Basically he is being presented as guilty before he has even had a trial. And all the actions that the police have taken are really just continuing to dilute the public health messages that practicing safer sex is everyone’s responsibility. I think we are really going to see that this is going to have a negative effect on testing in the city and its definitely going to have and effect on stigma and fear, discrimination and prejudice that HIV positive people are already dealing with on a daily basis.”

“I think that the Ottawa Police, despite their best intentions, have done a real disservice to the HIV community. And I am disappointed in the police liaison committee, I wish that they could have done more for him.”

Kathleen Cummings, the director of the AIDS Committee of Ottawa, agrees. She says that, while people may forget a name, they're more apt to remember a face. "This is going to affect him for life," she says.

Michael had previously been in touch to ask my permission to link to my blog in the invites to his annual birthday party fund- and consciousness-raising event, which takes place on May 20th.

On Thursday, May 20th, I'm hosting my annual Birthday Celebration.The party is in its third year and is a Birthday Celebration for yours truly, which doubles as an appreciation party for all my supporters who have donated cash, time, or talent to my numerous extra curricular activates as an activist and as a fundraiser.

This year's event is tackling sexual stigma and prejudice, homophobia, sex workers rights, and protesting the criminalization of HIV transmission. It will feature the photography of Pat Croteau, who will be showcasing nudes of local community members to raise funds for P.O.W.E.R. – Prostitutes of Ottawa/Gatineau Work, Educate and Resist. (tinyurl.com/POWERottawa).

He added in his email last Friday, informing me of his friend's arrest

I'm heart broken, and we here in Ottawa are rallying around him. Looks like my Birthday poster has taken on a whole new sense of urgency around here.

I fully support Michael's efforts, and really feel for the entire HIV community in Canada. These are terrible times.

Australia: Defendant in AU$750k Sydney gay civil case now faces criminal charges

A 55 year-old gay man who was successfully sued for AU$757,487 in April for allegedly misrepresenting his HIV-positive status as HIV-negative to his former long-term partner who is now also HIV-positive, is now facing criminal charges.

one count of “cause person to contract grievous bodily disease”. He will appear in Balmain Local Court on August 11.

Reporting of both the civil case outcome and the criminal charges has been extremely well done by the local gay newspaper, the Sydney Star Observer.  Its reporting makes for a stark contrast with the local gay press in neighbouring New Zealand, which last year demonised a man accused of non-disclosure who committed suicide following his arrest before any accusations could be proven in court.

Details of the civil case can be found in this report. Notable is the

[AU]$50,000 in exemplary damages [awarded] as an expression of [the court's] “disapproval of disgraceful conduct”.

Mike Kennedy, executive director of the Victorian AIDS Council in Melbourne mentioned the case during the Q&A session of a recent meeting of anti-criminalisation advocates in Vienna (video will be uploaded of this meeting over the next few days).  He noted that since civil cases have a lower standard of proof than criminal cases, it has allowed for extremely damaging testimony as to the impact of being diagnosed HIV-positive to be recorded in court records.  He was concerned that future criminal cases would refer to such testimony (and the damages awarded).

Currently, reporting of this case has remained within the gay press but it is likely that the mainstream media will catch on following the man's August 11th hearing.

This is not the first gay criminal HIV exposure/transmission case in Australia - although it is the first in New South Wales.  Michael Neal was previously found guilty of attempted intentional transmission, rape and reckless conduct in Victoria; a gay male sex worker was previously sentenced to 10 weeks in prison in Australian Capital Territory for being a male sex worker with HIV; and Stuart McDonald faces charges of 'recklessly' infecting eight men in South Australia. His trial begins on Monday, August 2nd.  

UK: HIV transmission case dropped against gay Doncaster man

A case against a gay man in Doncaster, in the north of England, who was accused of 'recklessly' transmitting HIV to two male complainants, has been dropped due to lack of evidence - apparently there had been no investigation of the previous sexual partners of the complainants who may have infected them.

I don't have a lot of details about the case, which I first heard about in March 2009, and I would like to protect the identity of the accused who has obviously been through hell for at least 15 months.

What I do know is this: two men had complained to the police that they believed that they had been infected by the accused during separate dates. (I don't know whether the complainants knew about each other before they went to the police, or after).

The Crown Prosecution Service (CPS) took their complainants seriously enough to prepare a 'reckless grievous bodily harm' prosecution under Section 20 of the Offences Against the Person Act 1861. To prove the element of causation of such 'grievious bodily harm' (i.e. HIV transmission), the prosecution must prove beyond reasonable doubt that only the accused could have infected the complainant(s).

I'm reliably informed by the man's defence lawyer, Khurram Arif, that the trial was meant to commence yesterday at Doncaster Crown Court. The defence had prepared a scientific report examining the likelihood that only the accused could have infected both complainants. The report highlighted that the complainants' previous sexual partners may also have infected them and that phylogenetic analysis could not rule this out.

Yesterday, the prosecution consulted with its own scientific expert and conceded that since both complainants had previous sexual partners and the police did not investigate nor eliminate them as possible sources of infection, there was no case to answer. This is, in fact, what the CPS guidelines state.

This is one of several cases defended by Mr Arif, where a lack of attention to the detail of what scientific evidence can – and cannot – prove has led to the CPS dropping cases very late in the day. As Mr Arif notes in his email to me: "The prosecution, when making such allegations, have to prove that they have closed all the doors to the possible sources of infection. Again, in this case, they did not."

The case highlights that in England & Wales, people accused of such 'crimes' should never plead guilty and should immediately contact an HIV organisation for advice in order to be put in touch with an expert defence lawywer, such as Mr Arif, who services legal aid clients through Christian Khan Solicitors and private clients through GSC Solicitors.

In addition, complainants need to be aware that making such accusations requires them to reveal their entire previous sexual history and to name all of their sexual partners since their last HIV-negative test. Only when they have all been contacted and tested for HIV can a prosecution actually reach trial.

UPDATE - Canada: Gay man acquitted of HIV exposure in Vancouver, risk not significant enough for liability

Update: May 12th

Yesterday, the Canadian HIV/AIDS Legal Network issued a press statement on the case, available here.

The reasons for judgment in the case (R. v. J.A.T., 2010 BCSC 766) were made public on June 2nd.

Today, aidsmap.com published a news story that I wrote last night highlighting the most salient points. Read the full story here

The case before the courts in Vancouver, British Columbia hinged on how many times an HIV-positive gay man's boyfriend had insertive, unprotected anal sex with him, and whether the risk of him acquiring HIV was 'significant'.

[...]

Both sides accepted that the accused had failed to disclose his status, although there had been several discussions around HIV-related risk and an agreement to practise safer sex from the start of the relationship. The accused testified that he had been diagnosed HIV-positive two weeks prior to meeting the complainant and hadn't been ready to disclose his status at that point.

"I was still dealing with social stigma, personal prejudice; I was mentally a mess," he told the court.

The prosecution's expert witness, Dr Richard Matthias, testified that the per-act risk of HIV transmission for the insertive partner was similar for both unprotected anal and vaginal intercourse and estimated the risk to be 0.04%, or 4 in 10,000.

Justice Lauri Ann Fenlon ruled that unprotected sex took place three times, and that the cumulative risk – 12 in 10,000 – did not reach "the standard of significant risk of serious bodily harm that must be met to turn what would otherwise be a consensual act into aggravated sexual assault."

An equally important part of Justice Fenlon's decision was that she found the harm of HIV infection to be less than it was perceived to be in 1998.

"It's no longer the case that people infected with HIV will develop AIDS and die prematurely," she said. "HIV, while still a deadly virus, can generally be treated and held in check."

This is relevant, explains the Canadian HIV/AIDS Legal Network, which worked closely with defence counsel Jason Gratl, and provided expert testimony at trial, "because, as the severity of the possible harm decreases, the higher the risk of harm must be in order to warrant criminal prosecution."

Original post: May 7th

In a groundbreaking ruling for Canada, Justice Lauri Ann Fenlon today ruled that the risk to the insertive partner during anal sex without a condom is not 'significant' enough to be considered either aggravated sexual assault nor sexual assault in the absense of disclosure.

Her ruling, reported in Vancouver's daily paper, The Province, and Canada's gay paper, Xtra, was based on expert evidence that the per-act risk of acquiring HIV via insertive anal sex was 4 in 10,000. Of interest, the defendant had been recently diagnosed (within the previous six months) and was not on treatment but the expert witnesses' testimony did not draw attention to the possibility of a higher risk due to higher viral load during early infection.
Full details of each day of the court case have been painstainkingly reported in a blog by Nathaniel Christopher on Xtra.ca. This report of the expert witness statement is below

An expert witness said an HIV-positive man on trial for aggravated sexual assault had a 0.04 percent chance of infecting his partner every time they had sex. Dr Richard Mathias told the court he believed HIV transmission rates in anal intercourse are comparable to those in vaginal intercourse. He explained that a penetrative partner in anal sex is at risk of contracting HIV through anal fluid, which can travel up their urethra. He mentioned that in the case of uncircumcised men the risk is even higher as the fluids can infect the insertive partner through the tissue beneath the foreskin.

Crown counsel Brendan McCabe asked Mathias if he was aware of any individual incidents in the gay community of the virus going from an HIV-positive receptive partner to a negative partner. "No," said Mathias, who has worked in public health for 35 years and conducted research on HIV and AIDS in the early days of the disease. He explained that the risk in the case of the accused would be 4 in 10,000 per act but that number would multiply with each encounter.

McCabe suggested that if the accused and complainant had had five unprotected encounters then the risk would be 20 in 10,000. Mathias said the risk is comparable to protected sex between an HIV-negative bottom and an HIV-positive top.

The complainant testified that he had engaged in insertive anal sex a total of five times with his former partner; the defendant testified that this happened only once, and that he had thought his partner was wearing a condom at the time. Justie Fenlon ruled that unprotected anal sex had taken place three times, but that a 12 in 10,000 risk was not significant enough to be considered a criminal act. Transmission did not occur.

I have concluded that the Crown has failed to prove that the risk of HIV transmission here — 12 in 10,000 sexual encounters or 0.12 percent — meets the standard of significant risk of serious bodily harm that must be met to turn what would otherwise be a consensual act into aggravated sexual assault.

This verdict should not be understood to mean that the court condones the behaviour of the accused. He had a moral obligation to disclose his HIV-positive status to his partner so that the complainant could decide whether he wanted to take the risk of engaging in unprotected sexual activity with the accused, no matter how small that risk. But not every unethical act invokes the heavy hand of the criminal law.

A previous posting yesterday, reposting an excellent article from Xtra, highlighted the potential significance of the case. It will be interesting to see what others make of it. More on Monday.

Canadian HIV law at a crossroads (Xtra.ca)

Reposting this article from Xtra.ca published online today. Tomorrow's verdict (due to be issued 9am Vancouver time) will be as important to people living with HIV – and public health – in Canada as the outcome of UK's general election. Will provide full details of trial and commentary on Monday.

Canadian HIV law at a crossroads

CRIMINALIZATION OF HIV / Vancouver, Edmonton and Hamilton cases could affect future police & crown decisions

Nathaniel Christopher & Neil McKinnon / Toronto / Thursday, May 06, 2010

Cases in three provinces could shape the way HIV non-disclosure is treated by the courts in this country.

In Vancouver, an HIV-positive man awaits a verdict after a lengthy trial. He and his boyfriend had unprotected sex very rarely — possibly just once — and the poz partner was always the bottom. The trial judge has ordered a publication ban on both men’s names.

In Hamilton, a poz guy had charges against him stayed because the complainant and accused only engaged in oral sex.

And in Edmonton, a straight man in his 50s is facing an assault charge for HIV non-disclosure, but police — who have a history of splashing names and photos around in the media — are refusing to release his name.

Although there is no HIV law on the books, Canadian police have, since the mid-’90s, been charging people with offences — ranging from assault to murder — for failing to disclose their health status before having unprotected sex. HIV activists have long said that transmission should be a public health matter, not a criminal one.

In Vancouver, Justice Lauri Ann Fenlon was, as Xtra goes to press, expected to render a verdict on May 7. But she has already hinted that the case could be appealed on constitutional grounds.

The defendant is represented by BC Civil Liberties Association lawyer Jason Gratl. Gratl called Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, to the stand to testify about the adverse effects of HIV criminalization.

At the trial, Fenlon said Elliott raised important policy issues that an intervener might put before the appeal courts or the Supreme Court of Canada, but that his testimony was not relevant to the issue before her.

The court, consequently, did not consider Elliott's testimony, but if the accused is convicted, they may end up making their case in appeals.

Elliott testified to the challenges of requiring disclosure in all circumstances, saying that approximately one quarter of all people in Canada infected with HIV don't know they have it.

“I think people recognize challenges of HIV disclosure, including stigma and negative consequences that can very easily flow from their HIV status,” Elliott told the court. “Rather than expect people to overcome those barriers in every circumstance and impose a criminal penalty when they don't, the emphasis should be on personal responsibility and risk reduction, a sensible prudent strategy in the ability of all people.”

He told the court that the stigma associated with HIV could be a disincentive to disclosure.

“People, quite legitimately, have concerns over employment, housing, loss of personal and other social rela-tionships, ostracism in community and denial of service by service providers,” Elliott testified. “Although we only have limited systemic research on HIV stigma, we certainly do have enough to document that there is still a pervasive stigma associated with HIV.”

He stressed the need for clarity in the law to better define what sexual activities between HIV-discordant couples constitute “significant risk” of serious bodily harm as set out in the 1998 Supreme Court of Canada case R v Cuerrier.

***

In the Vancouver case, the issue of what constitutes significant risk is paramount, because the defence is arguing that the risk of HIV transmission was as low as 1 in 2,500. In none of the three cases did transmission occur.

Dr Richard Mathias told the court he believes HIV transmission rates from anal intercourse are comparable to those from vaginal intercourse. He explained that a penetrative partner in anal sex is at risk of contracting HIV through anal fluid, which could travel up the urethra. He mentioned that in the case of uncircumcised men, the risk is higher as the fluids can infect the insertive partner through the tissue beneath the foreskin.

Crown counsel Brendan McCabe asked Mathias if he is aware of any incidents in the gay community of the virus going from an HIV-positive bottom partner to a negative top.

“No,” said Mathias, who has worked in public health for 35 years and conducted research on HIV and AIDS in the early days of the disease. He explained that the risk in the case of the accused would be 4 in 10,000 per act, but that number would multiply with each encounter.

McCabe suggested that if the accused and complainant had had five unprotected encounters, then the risk would be 20 in 10,000.

Mathias said the risk is comparable to sex between an HIV-negative bottom and an HIV-positive top when a condom is used.

The definition of "significant risk" was also at the heart of the Hamilton case, where the prosecution stayed an aggravated sexual assault charge in April. A gay man was charged in February 2009 after an ex-partner alleged they had oral sex without his disclosing that he had HIV. The charges were based on the accused's performing oral sex, rather than receiving it.

The ex-partner has since been tested and is HIV-negative.

Elliott said in a statement:

“There was never any solid basis for significant risk of transmission. It’s a misguided overreaction to lay and pursue some of the most serious charges in the Criminal Code when no harm has occurred and the risk of HIV transmission was miniscule at most.”

***

In the Hamilton case, the name of the man who was accused is public, but, at his request, Xtra chooses not report it. In the Edmonton case, police declined to release the accused’s name. And in Vancouver, the judge ordered a publication ban on the accused’s identity.

In all three cases, the complainant’s identity cannot be disclosed by law, akin to the way the identities of rape victims are protected.

Police across the country often disclose the names of people accused of sexual assault for HIV-nondisclosure, which, among other things, outs them as HIV-positive.

The Edmonton case is unusual because, from the outset, the name of the accused has been kept under wraps.

The charge follows a March 31 police complaint by a woman claiming she slept with an Edmonton man who failed to disclose that he has HIV.

An RCMP spokesperson, Jodi Hei-denger, says the move has nothing to do with public disclosure of the health status of the accused, and everything to do with protecting the identity of the alleged victim.

“Releasing any details would without a doubt identify the victim. We are not releasing the name of the accused strictly to protect the identity of the victim,” says Heidenger.

Which could mean that the Vancouver case, where at trial the accused’s name is protected, could be more precedent-setting. The move, however, may have come too late, since the publication ban came only after the name had been bandied about in media reports and police press releases.

The Hamilton case, because it never went to trial, will likely have the least impact on jurisprudence.

The Vancouver case, with the spectre of a Supreme Court challenge hanging in the air, could be one of the most important in a decade.

Canadian HIV/AIDS Legal Network welcomes Crown decision to drop criminal charges in Hamilton HIV case: guidelines needed

Press Release
AIDS ORGANIZATION WELCOMES CROWN DECISION TO STAY CRIMINAL CHARGES IN HAMILTON HIV CASE
But guidelines needed to avoid unsound, unjust prosecutions

TORONTO, April 22, 2010

The Canadian HIV/AIDS Legal Network welcomed the announcement at Hamilton’s courthouse this morning that the prosecution is staying the criminal charge of aggravated sexual assault against Justus Zela. He was charged in February 2009 after an ex-partner alleged they had oral sex without Zela disclosing that he had HIV. The ex-partner has not tested HIV-positive.

“We’re pleased with the Crown’s announcement this morning, but it must go further. This case should never have proceeded in the first place, and the charges should be withdrawn entirely,” said Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network. “There was never any solid basis for significant risk of transmission. It’s a misguided overreaction to lay and pursue some of the most serious charges in the Criminal Code when no harm has occurred and the risk of HIV transmission was miniscule at most.”

According to information available to the Legal Network, the charges were based solely on the claim that oral sex had taken place on a few occasions — and mostly with Mr. Zela performing oral sex, rather than receiving it.

“This case is yet another example of why the Attorney General of the province should work with community groups to develop some clear guidelines for prosecutors and police about when criminal charges are, and are not, warranted,” said Elliott. “Guidelines should be informed by the evidence about actual risks of transmission. They should also consider the damage that misusing the criminal law does to individual lives, and how it undermines public health, including HIV prevention efforts, through contributing to misinformation, fear and stigma.”

In 1998, the Supreme Court of Canada ruled that a person living with HIV has a duty to disclose his or her status to a sexual partner only if there is a “significant risk” of transmission, but much uncertainty remains about what this means.

Over the past decade, there has been an alarming increase in both the frequency and severity of charges against individuals with HIV for not disclosing 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 the responsible practise of 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.

Leading organizations and members of the HIV community — including health care providers, service providers, people living with HIV, academics and lawyers — have questioned the expansive use of the criminal law with respect to HIV non-disclosure in Canada. While recognizing that there is a limited role for criminal law on this issue, many legitimate concerns exist as to the impacts of this trend. 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.

About the Canadian HIV/AIDS Legal Network
The Canadian HIV/AIDS Legal Network (www.aidslaw.ca) promotes the human rights of people living with and vulnerable to HIV/AIDS, in Canada and internationally, through research, legal and policy analysis, education, and community mobilization. The Legal Network is Canada’s leading advocacy organization working on the legal and human rights issues raised by HIV/AIDS.

“Criminal Law and HIV”
A series of 5 info sheets on-line at: www.aidslaw.ca/criminallaw

Canada: Another gay man in Ontario accused of nondisclosure

A 42-year-old man from Brampton, Ontario has been charged with aggravated sexual assault after a 26 year-old man claimed he did not disclose his HIV status before they had sex.

The story is from the National Post, but the case is also being covered by local media in Ontario primarily because the police have issued a statement that serves as both a public health warning and a 'fishing expedition' for more complainants.

Investigators say they believe [the man] has been aware of his HIV-positive status for approximately seven years. Police further say he has had intimate contact with other adults and failed to disclose his status to them.Police are issuing a public safety advisory and appealing for others to come forward. They urge anyone who has had intimate contact with [the man] to call them immediately, and to seek medical attention.

At least he wasn't charged with attempted murder. The man will next appear in court on December 21.

New Zealand: Alleged 'HIV predator' dies in cell

The man at the centre of New Zealand's biggest ever criminal HIV transmission case died in his cell in the early hours of Monday morning. His death is not being treated as suspicious, but the Coroner is investigating the circumstances.

The post-mortem has already begun on the impact of his death, however. GayNZ.com, which first alerted the public to 40 year-old Glenn Mills, dubbing him the 'HIV predator', has already run several pieces, including an interview with the first complainant to go to the police.

The first young formal complainant was described as "incredibly brave" after he fronted up to Auckland's Adult Sexual Assault Team in May with details of his sexual relationship with Mills and his subsequent HIV diagnosis. His evidence was the break police needed to ramp up the case into a fully-fledged investigation which revealed many more allegations. He says he felt all along that Mills should have faced justice and "fronted up to what he had done."

The young man, who has preferred not to be publicly identified, says news of Mills death is sad but he feels a sense of relief. "The anxiety of knowing that sometime soon I would have to stand up in court and reveal so much to strangers and be cross-examined about intimate aspects of my life has been intense," he says, "...at times it has been overwhelming." He says even in recent weeks he had been feeling "overwhelmingly black thoughts" about his situation but has been receiving lots of support... so many professional people and organisations have been there when I needed them, I truly appreciate their help." He says he was dreading the possibility of Mills being released on bail. "Meeting him in the street or having him contact me directly or through others would have been terrible.

"I think I may get some closure on this now," the man said this morning just minutes after hearing the news of Mills' death, "I hope so anyway. But this is not the way I would ever have wanted it to happen."

Reactions have also come in from the main NZ HIV organisations. Another piece from GayNZ.com quotes Body Positive Auckland chief executive Bruce Kilmister:

"We are deeply sorry to hear of the death of Glenn Mills," says [Kilmister]. "We realise that people may have mixed feelings about him but we also acknowledge the stigma associated with HIV which he was having to deal with after after his health status was publicly revealed." Body Positive has been supporting a number of young men who believe they contracted HIV from Mills. Kilmister says his team are working quickly to contact everyone they can to put in place professional counselling and peer support.

Mr Mills' death is a mainstream news story in NZ, too. TVNZ.com, which aired an uncomfortable in-depth report on the case in June, published a story on its website today also quoting Mr Kilmister:

He says the premature death of an HIV sufferer is sad but it will spare victims and their families from having to give evidence before the court. "That's the only positive aspect we can see. It will avoid any long trial and won't put any people through that ordeal."

Despite their use of the phrase 'HIV sufferer', I was heartened to see they included this quote from him, too:

With his death coming the day before World Aids Day, Kilmister says it reinforces the message that people need to continue to test themselves and to practise safe sex. "Each person has a responsibility to keep themselves and others safe from the transmission of this virus." He says public attitudes towards the disease have made some progress but there is still some stigma towards people with the disease.

A story from NZCity.com focuses futher on the 14 complainants (seven of whom had tested HIV-positive).

Head of the Auckland Adult Sexual Assault Team Detective Sergeant Andy King says some of the 14 people who came forward to complain about Mills are quite upset about his death. He says others are happy the matter is now behind them. "They all came forward knowing well and truly that they may have to give evidence at court. And some when I spoke to them, or when they were spoken to by police, indicated that they were sorry that they wouldn't get a chance to see justice being done."

The article ends with some rather mixed messages, however, from Hannah Jennings-Voykovich, editor of Express, NZ's gay mazagine.

Ms Jennings-Voykovich says this case has highlighted the need for people to have personal responsibility when it comes to safe sex.

But earlier in the piece

[Jennings-Voykovic] says as she relayed the news to staff this morning, there was sense of relief. However she says there are still many unanswered questions. "Whether there was the intent. Whether there could be proof that there was an intent in court. And I think there are going to be a lot of hurt people out there wondering what happened." [She] says there will now be no sense of justice for Mills' victims. "A person that we spoke to this morning said 'I believe he got off lightly'."

We shall never know whether the case of Glenn Mills, the alleged "HIV predator", was more hysteria than fact. Earlier this month, Mr Mills was in court faced with an order to provide a sample of his blood for phylogenetic analysis. This would have been compared with samples from the seven complainants who claimed he was the source of their infection, and that he "deliberately" infected them by not disclosing his HIV status when they had consensual unprotected sex. This test may have shown that he was not the source.

It's also interesting to read about the relief his death has brought, not just to some of the complainants, but also to some in NZ's gay and HIV community. His trial may have been difficult – and the media reporting would certainly have added to the stigma associated with being gay and living with HIV – but it may also have exonerated Mr Mills, or at least shown that he may not have been any kind of predator (as is the case with most people accused of such crimes).

Still, putting the boot in, is GayNZ.com's content editor, Jay Bennie, who tells 3 News

“Right from the start we described Glen Mills as a predator, and that has been controversial – but I stick by it,” says Jay Bennie of GayNZ.com. “He has been manipulative, he has been cold and calculating, he has preyed on people who are vulnerable.”

Instead, his legacy has been sealed via trial by media – and he was found guilty in that domain long ago.

[This posting is the first to reveal the name of Mr Mills, even though it has been in the public domain since June. I hesitate to include it even now, but do so to help balance the reporting on his death and legacy.]

US: Media, police, judge conspire in 'hate crime' against gay HIV-positive man in biting case

I am so mad I could spit and bite! I've seen a lot of bad reporting and bad legal decisions during my time blogging, but never before have I seen the media conspire with the criminal justice system in such a calculated, prejudiced, stigmatising, and ultimately harmful way.

A gay man from a small city in Michigan who has been harrassed and beaten up by neighbours for years, has been charged with "assault with intent to maim, assault with intent to commit great bodily harm and possession or use of a harmful device" after the latest assault resulted in biting his neighbour the lip whilst he was defending himself.

The story first appeared on October 30th in the Detroit News.

Although police allege [the accused] was the lone attacker -- biting neighbor Winfred Fernandis Jr., 28, on the lip following the Oct. 18 confrontation -- [the acccused] says he's long been the target of bigotry on his street, and Fernandis, along with several of Fernandis' family members, took turns beating him.

"I have no memory of biting him," said [the accused], who is due in 41-B District Court for a preliminary hearing Monday. He divulged his HIV status after questioning from the media. "This person has been threatening me for years. The hatred needs to stop."

"He divulged his HIV status after questioning from the media."

How did that happen? Well, Fox News did some 'investigating' and discovered he was HIV-positive. They asked him to confirm it on camera - he did. They then told the bitten neighbour on camera. That's when it got ugly.

Here's the Fox News report.


Since HIV is involved, Clinton Township District Court Judge Linda Davis said during a preliminary hearing on November 2nd that just knowing he was HIV-positive and biting the neighbour is enough to sustain these very serious charges, reports a second story in the Detroit News.

"He knew he was HIV-positive, and he bit the guy," Davis said. "That on its own shows intent."

No it doesn't, Judge Davis, because saliva from a bite does not expose someone to HIV. Now she is implicated, along with the police and the complainant (and his wife), in a hate crime.

"I am still maintaining my client is the victim of a hate crime," [the man's attorney, James L. Galen Jr.] said. "He will be exonerated. This is the very first battle in what I think is going to be a long war."

A pretrial and arraignment will take place on November 16th.