Scotland: New guidance on prosecutions clarifies law, recognises treatment's impact on infectiousness

On May 1st, the Crown Office and Procurator Fiscal Service (COPFS) published their Guidance for Scotland on 'Intentional or Reckless Sexual Transmission, or Exposure to, Infection'.

According to COPFS, the policy aims to "provide guidance to prosecutors but also provide clarity and consistency about this area of the law."

As well as being helpful in Scotland, the guidance should also be a useful educational and advocacy tool for those many other jurisdictions around the world that prosecute alleged HIV exposure as well as transmission.

Scotland is only the second jurisdiction in the world that uses general criminal law for (mostly) HIV-related prosecutions to produce such guidance. They were a direct result of the Crown Prosecution Service (CPS) for England and Wales' policy and guidance, first published in March 2008 and updated in July 2011.  In fact, the COPFS guidance specifically states that

where possible, COPFS has sought to reconcile our policy and practice with the policy in England and Wales.

The CPS policy and guidance came about through a process initiated by key individuals from civil society although they are 'owned' and produced by the CPS. Like the CPS guidance, the COPFS guidance was advocated for by some of the same key individuals who were also consulted during the process. Unlike the CPS guidance, however, there was no public consultation.

THT, which advocated for, and were consulted on the guidance, along with NAT and HIV Scotland, welcomed the guidance with cautious pragmatism.

Catherine Murphy, Head of Public Affairs for the Terrence Higgins Trust, said: “Crown Office has a duty to prosecute criminal behaviour, but it also has a responsibility to ensure that the law is fair and fit for purpose. We hope this policy will provide greater clarity on a complex and highly sensitive issue. For good public health reasons people with HIV must be able to seek advice on sexual health issues without fear of being reported to the police. Nor should they be subjected to unjustified investigations because the law is vulnerable to misinterpretation by police and the courts.

Being consulted on, but not 'owning' the guidance, gave NAT, especially, the freedom to be quoted in the official COPFS press release as being supportive of the guidance but to highlight their concerns in their own press release, which also led to a news story in The Herald with the headline "Fears raised over 'punitive approach' to HIV exposure". In their own press release, NAT's Executive Director, Deborah Jack states

The Guidance allays many of our most significant worries - but we do still hope that a way can be found to end prosecutions for exposure to risk of HIV infection. Such prosecutions unjustly target people with an HIV diagnosis with all the responsibility for safer sex, despite the fact most transmissions are from the undiagnosed. They also encourage fear and secrecy rather than honesty and openness as we talk about sex - and so harm public health.'

Like the CPS guidance, the COPFS guidance is not HIV-specific despite the fact that all four prosecutions of sexual transmitted infections in Scotland so far have been for HIV (although Giovanni Mola was convicted of both HIV and Hepatitis C transmission). This was welcomed by the US Center for HIV and Policy in their note on the guidance, which states

In a particularly positive development, the guidelines do not single out HIV for special treatment, unlike the dozens of HIV-specific statutes that exist and are enforced in the United States.

Although the guidance has been broadly welcomed by civil society organisations working on HIV in Scotland (and elsewhere) they are a pragmatic response to an unwelcome situation. Guidance cannot change laws, but it can clarify uncertain aspects mitigating the harm of the overly-broad application of the criminal law.  (However one area not covered in this guidance are prosecutions and enhanced sentencing for spitting, biting and/or scatching whilst HIV-positive.  Scotland has had several of these recently, including this case reported today).

There is no legislation that specifically criminalises sexual HIV (or other STI) transmission in Scotland. Although it is possible to prosecute alleged intentional transmission as assault, all cases so far have been for 'reckless' exposure or transmission under the Scottish common law offence of ‘culpable and reckless conduct’.

Until the guidance was released yesterday it was unclear whether disclosure in the absence of condoms could be seen as a legitimate defence to accusations of 'culpable and reckless conduct’ (for alleged sexual exposure or transmission) because Scots law does not recognise consent as a defence to an assault charge.  The guidance has now clarified that prosecutions "will be unlikely" if disclosure of known HIV-positive status has taken place.

Importantly, the guidance has also clarified that alleged sexual HIV exposure charges will not be filed if the accused is on treatment with an undetectable viral load and was counselled that this meant there was a low risk of transmission. Specifically, the guidance states that

Prosecution will be unlikely where the following circumstances apply:

• The accused did not know that he/she was HIV positive
• The accused did not understand how HIV is transmitted
• The accused disclosed his or her HIV positive status to the victim
• The accused took reasonable steps to reduce the risk of transmission, for example, by using recommended precautions or avoiding higher risk acts
• The accused was receiving treatment and had been given medical advice that there was a low risk of transmission or that there was only a negligible risk of transmission in some situations or for certain sexual acts

Prosecution will be likely where the following circumstances apply:

• The accused deliberately misled or concealed information from the victim
• The accused did not attempt to reduce the risk of transmission, for example by failing to take prescribed medication or by failing to follow particular medical advice
• The victim was particularly vulnerable in some way
• There is evidence that the accused had intentionally embarked on a course of flagrant conduct

Download 'Sexual Transmission or Exposure to Infection - Prosecution Policy' from the COPFS website.

UK: The scandal of Scottish HIV exposure prosecutions (updated)

Update: June 29 2010

Mark Deveraux's appeal against the length of his sentence has been successful and he will now serve eight years in prison, rather than the ten years passed down in February.

BBC news online reports

At the Court of Criminal Appeal in Edinburgh, Lord Osborne, sitting with Lord Kingarth, ruled that the sentence had been excessive.

Mr Deveraux continues to make tabloid headlines. On Sunday, Britain's largest circulation newspaper, the News of the World reported

HIV monster enjoys day out of jail. HIV monster Mark Devereaux was out in the sunshine this week — on his first jaunt from jail to have treatment for his disease at the taxpayers' expense. The fiend, who infected one lover and slept with three other women knowing he had HIV, was whisked out of Peterhead nick on Thursday for a trip to Aberdeen Royal Infirmary.

A second article that interviews his 'victim' provides more details here.

The appeal judges decided on Tuesday that Devereaux should have been jailed for 12 years but his early admission had earned him a discount of a third.

Original post: Feb 26 2010

Yesterday, Mark Devereaux was sentenced to ten years in prison after being convicted of infecting one female partner with HIV and having unprotected sex with three other women without disclosing his HIV status.

There has been much media response, ranging from the sensationistically stigmatising (Scottish Sun) to the balanced and liberal (BBC via THT).

However, my favourite response comes from a blog posting by a Scottish "socio-legal researcher [with] a particular interest in the diffusion of social knowledges and how they come to exercise legal force." I am posting below, with their permission, the entire posting from the Lallands Peat Worrier blog entitled The scandal of Scottish HIV exposure prosecutions....

When it was reported that Mark Devereaux had plead guilty to four charges of culpable and reckless conduct in the High Court in Dumbarton, I wrote about some of the implications and justification for Scots criminalisation of HIV transmission. Let’s be clear on our facts. Devereaux did not tell four of his sexual partners that he had been diagnosed with the Human Immunodeficiency Virus. Reportedly, he had been in long term relationships with two of these women. One of the women with whom Devereaux had an extended relationship was herself diagnosed as HIV positive as a result of their unprotected sex. The three other women were not. Yet four charges were pressed against Devereaux for culpable and reckless conduct. The three for mere exposure, as opposed to reckless transmission of HIV despite personal knowledge of that status, are the first such prosecutions in the United Kingdom. He has now been sentenced.

My first post on this subject asked a number of questions, explored a number of the issues. How do we construct harm? How do we select what harms are punishable by our criminal law? By contrast, this post makes a more specific argument. I believe that despite his strongly unattractive conduct, his lies, the emotional distress he has certainly caused a number of people – that it is absurd to prosecute a man for “exposing others” – and notice how passively this constructs female sexuality – to HIV. On transmission, my mind is less made up. However, as I commented earlier, the present legal position means that it is at least theoretically illegal for those who are HIV positive to engage in procreative sex in Scotland. This is scandalous. Finally, partly informed by the foregoing, sentencing the miserable Mark Devereaux to 10 years in prison is palpably excessive. Through his legal agents, I hope he ventures to lodge an appeal against the sentence handed down by the Court this month.

The Scottish legal magazine the Firm have Lord Pentland’s full sentencing statement of the 25^th of February. They don’t begin well, confirming that “A man has been sentenced to ten years in jail after embarking on a series of sexual relations whilst in the knowledge that sexual contact would pass on the HIV infection to his partners” (my emphasis). This, as the facts of the case bear out, is total bunkum. Devereaux pled guilty to four charges of culpable and reckless conduct – three of which were prosecutions for “exposure”, while only one woman is now HIV positive as a result of Devereaux’s actions. We’re dealing with risk and potentialities here, not unavoidable necessities implied by the Firm’s would. Here is what Lord Pentland had to say:

“Mark Richard Devereaux, you have pled guilty to four charges of culpable and reckless conduct arising from a prolonged and sustained course of utterly irresponsible, dangerous and selfish sexual behaviour on your part. In short, knowing full well for many years that you had been infected with the Human Immunodeficiency Virus, you repeatedly and regularly had sexual intercourse with a number of women, without taking any steps to protect them against the risk that you would thereby transmit the virus to them. You were well aware from the medical advice given to you that you were at risk of infecting any sexual partner if you had unprotected intercourse, but you chose not to inform any of your partners that you had the virus and you chose not to use a condom or take any precautions.

You were engaged in long-term relationships with two of your victims and you infected one of these women with the virus. She decided to have an abortion when she discovered that she was infected. When the other of your long-term partners found your medication at one stage, you denied that it was for HIV and continued to have unprotected sex with her.

Those of your victims whom you did not infect were nonetheless each exposed to a considerable risk of contracting the virus. It seems to me that you callously and cruelly betrayed the trust placed in you by each of your partners and that you deceived them for your own self-centred reasons. Each of your victims has been devastated by these events. The person whom you infected will have to live for the remainder of her life with the knowledge that she now has the virus. She will require to have regular medical treatment and to take regular medication. She may suffer further consequences and must live with the uncertainty of that hanging over her. The charge in relation to her includes the serious aggravation that her life has been endangered. The others have all suffered great distress and anxiety on learning the truth about you and your deceitful and reprehensible conduct towards them.

I have taken full account of all that has been said on your behalf by Mr. Renucci and of the contents of the Social Enquiry Report. I accept that you have a good employment record and that you have no analogous criminal convictions. I am willing to accept, to some degree, that you pushed the reality of matters to the back of your mind, but this cannot in any sense excuse the highly irresponsible nature of your behaviour.

In my opinion, your persistent failure to be open about your condition and your prolonged insistence on having unprotected sex with a number of women over a period of several years shows a gross level of recklessness on your part and a total indifference to the welfare of those with whom you had intimate relations. In these circumstances, a substantial custodial sentence must be imposed. Had it not been for your guilty plea tendered at an early stage, I would have sentenced you to a term of thirteen years imprisonment.

You are entitled, as a matter of law, to a discount to reflect the fact that you pled guilty. In selecting the discount, I note that you made full admissions to the police when they interviewed you in July 2009. It is accordingly difficult to see that you ever had any possible defence to the charges. I accept, however, for the reasons set out by your counsel that your early admission of guilt had some utilitarian value. In the whole circumstances, I shall exercise the discretion conferred on me by reducing the sentence to one of ten years imprisonment. This is a cumulative sentence imposed in respect of all four charges. I shall backdate that sentence to 19 January 2010 since when you have been in custody in relation to this matter. I have already certified you for the purposes of the Sexual Offences Act 2003. The Clerk of Court will inform you in writing of the period during which the notification requirements will apply.”

Flatly, I’m appalled that the Court considers 13 years appropriate punishment for the charges as libelled, despite the reduced quantum for formal contrition and admission of fault. Moreover, a single ‘cumulative’ sentence is a suspicious beast – how does it break down? One year a piece for the exposure cases, ten for transmission? Giovanni Mola, whose case I discussed in my previous remarks, received nine years imprisonment for reckless and culpable transmission. He pled not guilty, however, and thus received no reduction for tendering a guilty plea. Given that comparator, it is difficult to tease out exactly how the case broke down in Lord Pentland’s mind. It is fair to argue that the exposure offences, which I’m particularly concerned with here, were tabulated to at least one year apiece.

Which brings us on to the nature of the conduct justifying such an imposition of penalty. Detective Inspector Martin Dunn, of Grampian Police, is quoted elsewhere remarking (fairly in the first sentence) that: “Devereaux acted with almost unbelievable irresponsibility and recklessness.” The Inspectors then embroiders this remark with another: “He has blighted the lives of all the women he had relationships with since being diagnosed”. I fail to see how this is true with respect to the three cases of culpable and reckless exposure. Like a tedious bore with his cyclically recurring ‘cancer-scare’ story, who relates how the queer, painless lump that put his world all out of joint and prompted melancholy reflections on his own morality was merely a benign cyst - yet still petitions for our interest and confirmation of his victim status. I don’t mean to imply that this whole process can have been easy for any of the women by any measure. I’m sure much upset and alarm resulted when Devereaux’s sexual partners realised that their past conduct may have had consequences which are unknown and challenging. But don’t let’s forget – only one of these women have any lasting physical repercussions. So why talk about them as if all four cases were fundamentally the same? Why the justifying innuendo, the implausible claims to permanent injury? “The others have all suffered great distress and anxiety on learning the truth about you and your deceitful and reprehensible conduct towards them”, said Lord Pentland. True enough, I’m sure. But hardly the stuff that state prosecutions are justified by, is it?

How many individuals sexually betray their fidelity to a partner – and generate analogous care and stress? How many parents inflict their neuroses on their guileless children to their permanent psychological injury and the disfigurement of their life’s potential? How many employers callously and with malice a’forethought, make their workforces redundant but luxuriate in inflated bonuses, to the workers’ significant anxiety, distress and manifest suffering? The point about all of this is not to collapse any of these claims to have suffered, to have been the victim of another. Rather, they highlight the crucial point – the criminal law doesn’t exist to salve hurt feelings or correct all the small and major injustices which we all inflict on one another. Its causes of action are generally and ought to be far narrower than the manifold capacity of humankind to err and sin. There but by the Grace of God, you might argue, for these three women, left unharmed. No thanks to Devereaux, certainly, but smiling Fortune and a bit of luck. Yet this isn’t just about one man, his lies, his breaches of trust, his scurrying and contemptible character. We operate within an ideology of legal rationality, where Devereaux the individual is separable from Devereaux the legal category, the formal authority, the basis for legal reasoning in the future. This second Devereaux concerns me acutely – the prosecution and punishment of HIV exposure and the criminalisation of the sex lives a section of the community should concern us all. Particularly with the tabloids commentating at a shrill fever pitch, full of passionate intensity.

UK: Scotsman pleads guilty to UK's first-ever charges for HIV exposure

A 41 year-old man from Scotland has pleaded guilty to four charges of culpable and reckless conduct after being accused of not disclosing his HIV status to four women between 2003 and 2008, only one of whom became HIV-positive. Although there have been almost 20 convictions for reckless HIV transmission in the UK since 2001 (of which only two were in Scotland), this is the first time that a conviction for HIV exposure following non-disclosure has been successfully prosecuted in the United Kingdom, although Scottish law has always allowed for this possibility.

The case of Mark Devereaux has been widedly reported in both Scottish and English media. While reports on BBC Online, the Scotsman, and STV.tv were somewhat neutral, tabloid coverage has been typically stigmatising, including today's Scottish Sun (Headline: "HIV fiend is lowest of the low" - inexplicably, he is named as Richard Devereaux in the article); Scottish Daily Record (which calls him a "callous predator"); and the UK-wide Daily Express (Headline: "HIV rat facing prison for infecting his lover').

Most of the articles focus on the fact that the 28 year-old woman who became HIV-positive was diagnosed during routine prenatal screening. She subsequently terminated the twins she was expecting with Devereaux. Some also refer to a fifth woman who was diagnosed alongside Devereaux in 1994. All of the articles rubbish Mr Devereaux's defence that he was in denial because the proseucution provide evidence that he was taking antiretrovirals - as if the two are incompatible!

BBC Online also followed up its news story with a second report pubished today focusing on the reaction by the HIV sector, and specifically its concern that this conviction will lead to more arrests for non-disclosure without transmission in Scotland.

Deborah Jack, chief executive of the National Aids Trust (NAT), said: "It is totally unjust to single out people with an HIV diagnosis for punishment for unprotected sex - we all need to be wiser and safer, looking after ourselves and those we have sex with.

"Most HIV transmissions are from people who have never had an HIV test.

"We recommend that the Scottish Executive change the law so that people with HIV cannot be charged with culpable and reckless conduct if no transmission took place."

Roy Kilpatrick, chief executive of HIV Scotland, said: "We are particularly worried about the fact that prosecutions were brought in this case in respect of three sexual partners of Mr Devereaux who had not contracted HIV.

"We recognise that the primary motivation for bringing this prosecution must have been the actual transmission of HIV and that the prosecution would have felt it necessary to put the full context before the court.

"However, it would be alarming if the charges brought in this case open the door for future prosecutions in cases where no harm has been caused."

He said that bringing prosecutions where no harm had been caused would stigmatise people living with HIV.

Mr Kilpatrick called for a clear statement of Scottish prosecution policy.

UK: Scottish man accused of criminal HIV transmission; sensationalist reporting

I am incensed and outraged that journalist Charles Lavery (c.lavery@sundaymail.co.uk) has written, and the (Scottish) Sunday Mail has published, the article below.

It features an interview from a complainant in an ongoing criminal HIV transmission investigation which names the man he believes infected him with HIV. As far as I can tell, the man is only under investigation, and this article appears to be libelous (should it not say "allegedly infected"?) and obviously prejudicial.

It is also not clear how the quotes attributed to the accused were obtained (were the recordings legal?), and the language used in the article ("sex predator", "deadly fullblown AIDS") is inaccurate and, obviously, stigmatising.

I understand how distressed and angry 'Alan' must be to discover he is now HIV-positive, but going to the gutter press as well as the police is so incredibly counterproductive: doesn't he realise that he is only adding to the stigma of his own HIV infection?

I urge any readers who feel similarly incensed to email Mr Lavery and/or comment on the paper's website.

My lover didn't tell me he had HIV
Mar 30 2008
By Charles Lavery
Exclusive: Dad Says Sex Predator Gave Him Disease

A SEXUAL predator who infected a father-of-three with HIV is being investigated by police.

[Full name of man], 40, admits he did not tell his unsuspecting victim he had been diagnosed as HIV positive six years ago.

[Name of man] - who could face five years in jail for his deadly deceit - still trawls gay websites for "one-on-one sex" while police examine his sexual history.

They fear he could have slept with - and potentially infected - dozens of partners.

Police now face the difficult task of trying to track down his conquests, who will be offered HIV tests and counselling.

His victim Alan, whose identity we are protecting, tested negative for HIV two weeks before he met martial arts expert [Name of man].

Alan, 32, said [Name of man] assured him he was also clear of the disease - which can go on to develop into deadly fullblown AIDS.

But after being tipped off that [Name of man], of [town in Scotland], had the virus, Alan arranged another test and was told he too was HIV positive.

He said: "[Name of man] never had the decency to tell me he was a carrier. He has stolen 20 years of my life."

In a taped confession [Name of man] admits:

"I gave him HIV. I have had a dozen sexual partners since I was diagnosed six years ago and I have told each and every one of them. Why I didn't tell Alan I don't know.

"I always meant to and then we had sex. By that time it was too late."

The pair met on the Chatterbox UK website and struck up a friendship before arranging a date.

Alan says he asked about safe sex but [Name of man] told him he had been given the allclear so there was no need.

[Name of man] is still listed on various online gay exchange networks looking for sex. Alan told the Sunday Mail:

"[Name of man] told me he was clean because I asked him outright.

"He is a fit-looking guy who goes to the gym and has a good body for his age but that's all to mask his illness.

"I know I was clear before I met him as I take regular health checks because of my lifestyle."

Alan's life fell apart when he got an email from one of [Name of man]'s friends asking: "How's your health?"

He said: "I replied, 'What do you mean?' His reply made my heart stop.

"It said, 'How are your bloods?'

"I called [Name of man] and he said he couldn't bring himself to tell me because he couldn't bear to lose me.

"His family and friends all knew too but they told me they assumed I must be HIV positive too.

"I have been at their home eating Sunday dinner and listened to them telling [Name of man] what a nice couple we make."

Within 24 hours of the bombshell email Alan had been diagnosed as HIV positive. A counsellor broke the news over the phone.

He said: "I spent three weeks in my bed after that phone call. He never had the decency to tellme he was a carrier."

Last Sunday Alan walked into a police station in Glasgow and made a formal complaint.

But [Name of man]'s profile was still on networking site Gaydar, advertising for one-night stands and claiming he would "discuss" the use of condoms with any sex date.

He describes himself online as "single, fit, honest and looking".

Alan said: "How many more are there like me? He was always online and always off meeting new people. I can only assume they too are none the wiser.

"I want to stop this man doing this to people. It's too late for me but not for the people he is planning to meet.

"I want the world to know this guy is HIV positive and sleeping around. I hope he goes to jail for a long time. He has robbedme ofmy life - what price do you put on that?"

We tracked [Name of man] down last week to a flat he rents in Paisley.

He said: "I probably gave him it but until it's proved I don't want to say anything. He might have had other partners."

Strathclyde Police said: "A 32-year-old man has made a complaint. Inquiries are continuing."

'I hope he goes to jail for a long time ..he has robbed me of my life' VICTIM ALAN

MAILFILE

HIV (Human Immunodeficiency Virus) attacks the body's ability to defend against disease. An all-timehigh 73,000 people in the UK are infected. AIDS (Acquired Immune Deficiency Syndrome) is the latter stages of HIV when the sufferer has a life-threatening illness, such as pneumonia. For advice, call the Terrence Higgins Trust on 0845 1221 200 or the National AIDS Helpline on 0800 567123.

SUNDAY EMAIL

c.lavery@sundaymail.co.uk

Scotland: Condoms now available in Scottish prisons

Free condoms for prisoners to cut disease

PRISONERS in Scottish jails are to be issued free condoms in a bid to encourage safe sex and stop the spread of diseases.

A successful trial has been in place in Greenock prison since 2005 and the scheme is now being rolled out across Scotland.

Prison bosses hope it will result in a fall in cases of diseases such as HIV and hepatitis within the system.

The strategy also accepts a level of drug use by encouraging prisoners to smoke or inhale drugs rather than injecting.

The Scottish Prison Service said it was a "realistic" scheme that would benefit all prisoners. A spokesman said: "We do not, in any way, condone sex between prisoners in Scottish prisons, but this is a pragmatic decision that has been taken to help prisoners.

"We realise prisoners are a major health risk group and that they partake in risky behaviour."

Conservative MSP Bill Aitken said: "Free access to drugs and now free access to condoms while they are inside?

"The way things are going, quite a section of the population will be queuing up to get into Scottish jails."

This article: http://news.scotsman.com/scotland.cfm?id=1319362007

Last updated: 20-Aug-07 13:07 BST