New report explores implications of tests to estimate timing of HIV infection for criminal prosecutions

From UNAIDS front page today.

 

Feature Story: New report explores implications of tests to estimate timing of HIV infection for criminal prosecutions

The UK charity National AIDS Trust (NAT) launched a report on 4 August 2011, entitled Estimating the likelihood of recent HIV infection – implications for criminal prosecution, which explores the validity and meaning of the Recent Infection Testing Algorithm HIV tests, or RITA tests, within the context of criminal prosecutions of HIV transmission.

The report, primarily aimed at professionals working in the criminal justice system and HIV specialists who may be called on as expert witnesses in criminal HIV transmission cases, calls for caution about the potential use of RITA results to determine timing of HIV infection.

About RITA and its potential use in criminal law context

RITA tests estimate the likelihood that a person found to be HIV-positive has been infected recently, usually within the previous six months. To date, the United Kingdom is the only country reported to routinely return RITA results to newly diagnosed patients.

As criminal law in the UK allows for the prosecution of people for transmitting HIV to another person, the report underlines the importance that RITA tests and their limitations be fully understood and not misused in criminal proceedings. The report underlines that while there have been no reported instances of use of RITA results in courts to attempt to prove timing of HIV transmission and consequently the identity of the person who transmitted HIV, this may happen in the near future.

No test can conclusively state when an individual acquired HIV

“No scientific test is able to conclusively state when an individual acquired HIV,” said Dr Cate Hankins, Chief Scientific Adviser to UNAIDS. “It is important to be cautious, follow clear protocol, and understand the limitations of RITA results when delivering them to patients or using them within a criminal law context.”

According to the report, proving HIV transmission in the context of criminal law cases requires the use of a combination of scientific evidence, medical records and testimony to establish the facts, timing and direction of HIV transmission.

“Scientific advances such as RITA testing are extremely welcome when estimating the recency of HIV infection on a population level, especially as late diagnosis is a huge issue,” said Ms Deborah Jack, Chief Executive of National AIDS Trust. “However, it is crucial that the limitations of RITA tests are fully understood and are not used out of context, for example during criminal proceedings.”

As RITA tests are designed to work at the population level (based on averages) rather than at the individual level, taking into account significant rates of false RITA test results in individuals, the report draws the conclusion that RITA tests are not reliable as evidence of recent HIV infection for individuals in the context of criminal proceedings.

Better understanding of HIV science in the context of criminal law

The NAT report comes weeks ahead of an expert meeting on the scientific, medical, legal and human rights aspects of the criminalization of HIV transmission and exposure organized by UNAIDS in Geneva from 31 August to 2 September 2011.

The meeting will bring together leading scientists and medical experts on HIV together with legal and human rights experts. Participants will examine relevant scientific and legal evidence and concepts relating, among others, to harm, risk, intent and proof, and their conceptualization/application in the context of criminalization of HIV exposure and transmission.

The meeting is part of UNAIDS’ work towards halving the number of countries with punitive laws and practices around HIV transmission, sex work, drug use, or homosexuality that block effective AIDS responses by 2015.

UK: The return of the "HIV Monster"

The British tabloid press had a field day yesterday following the sentencing of Nkosinati Mabanda, 44, at Wolverhampton Crown Court for 'reckless' HIV transmission. He received a four year prison sentence; was also given an anti-social behaviour order (ASBO) ordering him not to have sex without first revealing his HIV status (unclear if this also covers his time in prison); and will be considered for deportation following his release.

Of note, the only successful prosecutions for 'reckless' HIV transmission in England & Wales since 2004 have taken place when the defendant pleaded guilty.  (See this table of all UK cases from NAT - an additional heterosexual case in Wood Green, London, was dismissed in March 2011 due to lack of evidence).

In fact, Mr Mabanda had tried to change his guilty plea (and his legal representation) when he realised how difficult it was to prove the charges he'd already pleaded guilty to. He was not only unsuccessful, but did himself no favours by having a further sexual relationship with another woman (who did not test HIV-positive) in the two years he was out on bail.  (The first report of his case, from December 2009, is here.)

Since Mr Mabanda's country of birth is Zimbabwe (he apparently migrated to the UK in 2004), the two right-wing tabloids, The Sun and The Daily Mail pandered to their readers' prejudices and characterised this human being who had make mistakes (as human beings do) as an 'HIV Monster'.

The term "HIV Monster" and its variant, "HIV Avenger", has been around since the late-1980s. The idea that a person with HIV is no longer human but a "monster" was established by the myth of “Patient Zero,” a key figure in Randy Shilts’ bestselling 1987 book about the AIDS epidemic, And the Band Played On. "Patient Zero" was characterised as a sociopathic individual who may have intentionally infected others following his AIDS diagnosis, behaviour for which, Shilts suggested, the coercive powers of the state were ineffective. This myth has since been replayed many times worldwide and is often the impetus for calls for new HIV-specific laws and/or tougher sentencing.

Certainly, readers' comments suggest the tabloids did their job of dehumanising Mr Mabanda - many calling for his death, castration or, at the very least, immediate deportation to what they hope will be a certain and painful death in the absence of HIV treatment in his native Zimbabwe.  Anti-immigration (and anti-African) sentiment is also widely expressed.  The comment below is illustrative of all of the above, and yet also alludes to the difficulties of disclosure due to HIV stigma. (Of course, having children if you are HIV-positive is neither "off the cards" nor "selfish" - it is possible to conceive and give birth with minimal risk to a sexual partner or infant and many people with HIV can, and do, have children with the full support of their doctors, partners and families.)

 

The content of the stories - if not the tabloids' headlines –  take their facts and their moral tone from a police press release, and the words of the complainant.

The press release states:

Superintendent Jan Thomas-West, from West Midlands Police, said: "The particularly disturbing element of this case is Mabanda's blasé attitude towards his victim and his various other partners.

"Mabanda told officers that he had had sex with nine women in the UK and that seven of them had not know he was HIV positive. Unfortunately, these women were impossible to trace.

"He seems to have shown no regard for the health of others or the potential life sentence he may have passed on to anyone who had sex with him.

"His victim will remain on medication forever and her life expectancy has been reduced as a direct result of his actions.

"I am pleased that Mabanda has received a significant custodial sentence today."

West Midlands police subsequently circulated a second email quoting the complainant, parts of which were used in the The Sun and Mail stories.

Further to this release, please find below a statement from his victim, who wishes to remain anonymous:

"I am pleased with the sentence given to Mabanda today and that the judge recognised the seriousness of what he has done.

"I feel a combination of anger and relief. Anger at what he has done to me and potentially other women and relief because he has been punished for his actions.

"I think he should have been given life because that’s the sentence he has given to me.

"What he did has had a devastating impact and will affect me every day for the rest of my life, but now I want to move on.

"If anyone else recognises him because of the media coverage and they have been infected, they should go to the police and I will be there for them."

 The complainant also gave interviews to the local paper, The Express and Star and to BBC Radio 5.

She said: “He should have been given life because that’s the sentence he has given to me. He’s just scum. I hope he’s deported because I hate him.

“I’m on medication now for the rest of my life.”

And in the BBC interview she highlights that Mr Mabanda knew he was HIV-positive "before he came to this country."

I have a great deal of compassion for the complainant, who also admits in the BBC interview that she knew nothing about HIV (including, obviously, how to protect herself) before she discovered from Mr Mabanda's fiancée that she was at risk.  

But there appears to be no attempt to understand how Mr Mabanda acquired HIV himself; continued to have multiple concurrent relationships; and felt unable or unwilling to either use a condom or disclose to most of the women he encountered. (Interestingly, though, he had disclosed to two of the ten women.)  The only evidence of any kind of understanding of Mr Mabanda's issues comes from Twitter.

Couldn't agree more, Krystle.

UK: Man accused of 'intentional' transmission last month turns himself in

A 27 year-old man whose name and picture was published last month by The Mirror, following allegations from a former partner that she became HIV-positive as a result of unprotected sex without him first disclosing that he had HIV, was arrested on Thursday by Runcorn police after he turned himself in.

Unusually, according to yesterday's Mirror report, he was charged for 'intentional' transmission under Section 18 of the Offences Against the Person Act 1861. These charges are highly unlikely to stick – proving intent, never mind proving that the man is the source of the complainant's virus – is extremely difficult.  Several other cases in England & Wales where individuals have eventually been found (or pleaded) guilty to 'reckless' HIV transmission began with charges of 'intentional' transmission.

There are no details reported to suggest that man acted with intent.  According to the original Mirror report

The mum who made the complaint is worried [he] could put other women at risk. She was in a relationship with him and having unprotected sex when she was told by one of his former lovers that he had HIV. When she confronted him it is alleged he confirmed he was infected. She was tested and discovered that she also had the virus. The woman, from Cheshire, has two young children from previous relationships. Neither child has the virus. She believes [he] knew he had the virus for more than four years.

What is unusual about this case is the fact that a UK national newspaper picked up on the story before he had been charged.  As far as I am aware, this has only happened once before in the UK, in Scotland (and nothing ever came of the case). 

Although The Mirror's story on Jan 15th, had the headline 'Police hunt man suspected of infecting lovers with HIV' there was only one complainant a "mum of two" who "suspects" he might have infected others.  Of note – and in contrast to US and Canadian statements by the police in similar situations – Runcorn police were somewhat restrained in their characterisation of the man.

A police spokeswoman said: “It is not believed that [he] poses a risk to the public as a whole. However there is potential for risk of harm to those in a domestic relationship with him. Detectives advise that any sightings be reported to police so that the information can be acted upon.

The news spread, virus-like, through other media in the UK and beyond: The Voice on January 17th;  Huddersfield Daily Examiner on January 19th; Yorkshire Post on January 20th; and yesterday – since the man is of Jamaican origin –  in the The Jamaican Star.
 

One interesting side note.  The woman who made the complaint "is said to have endured taunts from former associates. Her home has also been daubed with hurtful graffiti."  One wonders if the police are also investigating this alleged hate crime against her?  

Global: AIDS 2010 round-up part 2: Posters

This selection of posters presented in Vienna follows up from my previous AIDS 2010 posting on the sessions, meetings and media reporting that took place during last month's XVIII International AIDS Conference.  I'll be a highlighting a few others in later blog posts, but for now here's three posters that highlight how the law discriminates; why non-disclosure is problematic to criminalise; and how political advocacy can sometimes yield positive change.

 In Who gets prosecuted? A review of HIV transmission and exposure cases in Austria, England, Sweden and Switzerland, (THPE1012) Robert James examines which people and which communicable diseases came to the attention of the criminal justice system in four European countries, and concludes: "Men were more likely than women to be prosecuted for HIV exposure or transmission under criminal laws in Sweden, Switzerland and the UK. The majority of cases in Austria involved the prosecution of female sex workers. Migrants from southern and west African countries were the first people prosecuted in Sweden and England but home nationals have now become the largest group prosecuted in both countries. Even in countries without HIV specific criminal laws, people with HIV have been prosecuted more often than people with more common contagious diseases." Download the pdf here. 

In Responsibilities, Significant Risks and Legal Repercussions: Interviews with gay men as complex knowledge-exchange sites for scientific and legal information about HIV (THPE1015), Daniel Grace and Josephine MacIntosh from Canada interviewed 55 gay men, some of whom were living with HIV, to explore issues related to the criminalisation of non-disclosure, notably responsibilities, significant risks and legal repercussions. Their findings highlight why gay men believe that disclosure is both important and highly problematic. Download the pdf here.

 

In Decriminalisation of HIV transmission in Switzerland (THPE1017), Luciano Ruggia and Kurt Pärli of the Swiss National AIDS Commission (EKAF) – the Swiss statement people – describe how they have been working behind the scenes to modify Article 231 of the Swiss Penal Code which allows for the prosecution by the police of anyone who allegedly spreads “intentionally or by neglect a dangerous transmissible human disease” without the need of a complainant. Disclosure of HIV-positive status and/or consent to unprotected sex does not preclude this being an offence, in effect criminalising all unprotected sex by people with HIV. Since 1989, there have been 39 prosecutions and 26 convictions under this law. A new Law on Epidemics removes Article 231, leaving only intentional transmission as a criminal offence, and will be deabted before the Swiss Parliament next year. Download the pdf here.

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

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

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

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

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

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

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

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

Video produced by www.georgetownmedia.de

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

UK: New Guidance for Police Investigating Criminal Transmission of HIV

I'm reproducing below a press release issued yesterday by the National AIDS Trust (NAT) about the new UK (with the exception of Scotland) guidance for police officers investigating allegations of criminal HIV transmission. We'll hear more about the guidance – a world's first – and how it was developed, at the International AIDS Conference in Vienna which begins on Sunday.

Police and HIV sector work together to produce guidance

New guidance has been produced to help police when investigating allegations of criminal transmission of HIV. The guidance provides police officers with basic facts about HIV and sets out advice on how to deal with complaints about reckless (or intentional) transmission of HIV in a fair and sensitive manner.

The new guidance from the Association of Chief Police Officers (ACPO) was developed by a working group which included police officers, representatives of the Crown Prosecution Service and the National Policing Improvement Agency, and the National AIDS Trust. Police across England, Wales and Northern Ireland will be expected to follow new guidance.

Ellie O’Connor, Detective Chief Inspector of the Metropolitan Police, comments;

“Investigations into the criminal transmission of HIV are extremely rare but we know they cause a lot of anxiety for the individuals involved. It is important police officers have an understanding HIV and what to do should someone make a complaint.

In producing this guidance we listened to the concerns of the HIV sector and worked in partnership with them. We strongly encourage all police forces to disseminate this guidance and ensure officers know to access it when a case occurs.”

Deborah Jack, Chief Executive of NAT, comments;

“Criminal investigations into HIV transmission worry many people with HIV, even though they occur only very occasionally. We are pleased that we have been able to work together with the police to produce guidance for their officers. The Association of Chief Police Officers took the issue very seriously.

The resulting guidance sets out a fair way to deal with these investigations that keeps in mind the particular sensitivities of HIV. This new guidance should serve to reduce the number of police investigations and reassure people living with HIV of what they can expect in the unlikely circumstance this occurs.”

For further information about this issue NAT and THT have produced a leaflet for people living with HIV - Prosecutions for HIV Transmission: A guide for people living with HIV in England and Wales.

Under the new guidance for police investigating criminal transmission of HIV, people living with HIV can expect:

• to be treated supportively.
• for their confidentially to be respected.
• an investigation of reckless transmission only to be pursued if a complainant has been infected with HIV
• for the case to be continually discussed with the Crown Prosecution Service to ensure only legitimate complaints are pursued.
• contact with any other individuals relevant to the case to be initiated by trained staff at GUM clinics.
• and uninterrupted access to medication in the event of being taken into custody.

If someone reports to police concerned that they have been exposed to HIV in the past 72 hours they will be referred to an open sexual health clinic or the nearest hospital Accident and Emergency Department to ask for PEP.

For a background study of early police investigations of alleged cases of HIV transmission see Policing Transmission by Terrence Higgins Trust.

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: 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.

UK: Prevention not prosecutions, concludes expert panel

A World AIDS Day debate, HIV and the Criminal Law, at City University London, has concluded that prosecutions for 'reckless' HIV transmission do not serve public health and that "HIV prevention must be the primary objective above an appetite for justice, by raising awareness of the partner’s health and investing in more education."

Some of the smartest minds in HIV and legal policy appeared at the event which was chaired by broadcaster (and barrister) Clive Anderson.

Panellists included:

• Yusef Azad, Director of Policy and Campaigns, National AIDS Trust;
• Arwel Jones, Team Leader of the Domestic Affairs Division, Crown Prosecution Service;
  
• Catherine Dodds, Senior Research Fellow, Sigma Research, University of Portsmouth; and
  
• Matthew Weait, Reader in Socio-Legal Studies, and author of Intimacy and Responsibility, The Criminalisation of HIV Transmission, School of Law, Birkbeck University.

Full report on the City University London website.

Ireland, UK, US: Spitting and biting cases highlight police ignorance

Whether its Fort Mill, South Carolina; Jacksonville, Florida; Rutland, Vermont; or Wimbledon in the UK, the police and media have been over-estimating the risk of HIV transmission from biting or spitting over the past two weeks with devastating consequences for all concerned.

South Carolina: Where biting is attempted murder
In Fort Mill, a man who bit his neighbour in a fight had his charges upgraded from simple assault to assault and battery with attempt to kill once police learned of the man's HIV status, according to a report in The Herald.

Assault and battery with intent to kill is a felony that carries a prison sentence of up to 20 years upon conviction, Fort Mill Police Capt. Bryan Zachary said. “Upon review of the facts of the case,” Zachary said, the solicitor's office “confirmed because of the malicious intent involved that the charge of assault and battery with intent to kill was warranted.

And yet, according to local TV station WSOC the bite did not break the skin.

London: Policeman's unnecessary agony
There may be no attempted murder charges for biting under English law, but in Wimbledon, according to This is Local London, "a policeman bitten by an HIV-positive drug addict [during his arrest] faces an anxious wait to see whether he has contracted the virus."

And during his wait he will, according to the report, "need at least seven months of anti-viral medication." Yet Post Exposure Prophylaxis for HIV exposure lasts just 28 days and is not actually warranted for a bite.

Vermont: Where post-spit anxiety lasts a year
A policeman in Rutland faces totally unnecessary anxiety after being spit on by an HIV-positive man who had been trying to commit suicide.

The Times Argus reports:

A man diagnosed with the virus that causes AIDS is charged with a felony for spitting into the face of a Rutland police officer who must now undergo a year's worth of testing to discover whether he was infected with HIV. [...]

It was while doctors in the emergency room were treating [the man] that he allegedly cocked his head back and spit into the face, eyes and mouth of city police Sgt. David Schauwecker, who was trying to control [his] head, according to the affidavit. [The man], who was arrested more than a week later after his release from the hospital, has no prior criminal record.

But the charge he faces now is tantamount to a life-threatening assault, according to Rutland County Deputy State's Attorney Kathryn Smith. "The nature of this offense is extremely concerning," Smith said. "He knows he has a deadly disease and yet he exposed another human being to that disease. … This case before us is an actual act of violence."

"Everything in my life is basically put on hold for a year," said Schauwecker, who will be tested every three months to look for signs of HIV. "I went there that night trying to save someone and now I'm looking at a life sentence."

Today, the Rutland Herald ran a letter from AIDS NGO, Vermont Cares, entitled 'Clearing up HIV myths'. They wrote:

Enforcing the myth that HIV is spread through saliva... protects the health of no one. In fact, unfounded fears about HIV transmission and misunderstanding of risk can endanger people with HIV.

To be clear, the U.S. Centers for Disease Control and Prevention offers no demonstrated cases of saliva ever transmitting HIV. Transmittable HIV is present in four bodily fluids only: blood, semen, vaginal fluids, and breast milk.

Having someone spit in your eye or mouth is definitely frightening and may transmit other pathogens from influenza to tuberculosis. However, HIV is a highly unlikely risk in this instance.

Enforcing fear and misinformation about HIV, and promoting the belief that HIV testing is a variable enough science to postpone relationships and life, would be a terrible consequence of this incident. HIV testing, by CDC recommendations, is nearly 100 percent accurate at six or even three months.

Florida: Where attempted spitting is now a felony
In late July, Jacksonville police charged a 29 year-old HIV-positive man with aggravated assault with intent to commit a felony after he attempted to spit on a police officer following his arrest for shoplifting.

The arresting officer said that on the drive to jail, [the man] started coughing and trying to spit on the officer from the back seat of the patrol car in an "effort to transmit his HIV disease." The officer had to put a "spit mask" on [the man]'s face before taking him to jail.

The short piece on firstcoastnews.com included the man's name and photo. There are now seven pages of readers comments that range from the homo- and trans-phobic to pure HIV hatred. One reader even found and published the man's previous (minor) criminal record. I genuinely fear for the man's safety in- or out of jail.

Ireland: Judge concerned about police's lack of education of HIV transmission risks of biting and spitting
The Irish Times reports that a High Court Judge, Ms Justice Mary Irvine, recently brought in a medical expert to testify over the risk faced by police of occupational exposure to HIV and other blood-borne diseases "as a result of the high number of Garda [Irish police] compensation claims involving fear of transmission of such diseases coming before the court."

The judge awarded a policeman €8000 compensation after hearing testimony that "he had been “petrified” and suffered nightmares and sleeplessness after having been bitten during the arrest of a known drug user".

Colm Bergin, a consultant in infectious diseases, told the court that in 10 years’ practice he had never come across a case of transmission of HIV or Hepatitis C through saliva.

The court also heard that:

• the risk of contracting HIV or Hepatitis C from saliva can be as low as one in 100,000; and
• that transmission of such diseases through contact with blood was also negligible.

[The judge] had expressed concern as to how well [police] were educated about risks to members contracting saliva and blood transmitted diseases through bites, spittle or needle stick injuries. “Such attacks are happening on a daily basis and there are huge numbers of compensation cases coming before the court,” the judge said. She has asked for reports on the risks involved and what is being done to reassure [police] injured in assaults as to the low level of risk.

Global prosecutions league table sees Sweden on top

I've just done a rather quick and dirty calculation of prosecutions for HIV non-disclosure, exposure or transmission per capita, based on GNP+'s Global Criminalisation Scan data, and produced this rather interesting league table.



Despite Canada, the US and Australia being disproportionately represented on my blog, due to the sheer number of prosecutions taking place, Sweden, Norway and New Zealand have actually prosecuted the highest proportion of people with HIV in their respective countries.

Having just returned from an excellent conference organised by HIV Sweden in Stockholm (on which I reported today in this aidsmap.com news story, highlights of which are below), it really comes as no surprise that Sweden and Norway head the league of shame.

And last Tuesday, Mr Justice Cameron addressed a meeting in Stockholm organised by HIV Sweden to discuss HIV and the criminal law in Sweden and other Nordic countries.

The meeting heard that Sweden's laws were often applied selectively and discriminatory, including the recent case of an African migrant woman who had gone to the police after being raped by two men.

However, rather than charge her assailants, the police charged the woman with HIV exposure. The case is still ongoing.

Peter Gröön, of Stockholm County Council, shared data showing that African migrants – ten of the 16 people prosecuted in the past five years – also received longer prison sentences than their Swedish counterparts. Mr Justice Cameron told the meeting that this kind of HIV exceptionalism, which is fuelled by stigma, must not be tolerated. "We want [HIV to be treated] neither better, nor worse than any other disease," he said.

The meeting also heard that a coalition of grass roots and civil society organisations in Norway might lead to an abolition of Norway's current HIV exposure and transmission law, Section 155, which has led to ten prosecutions the past five years.

The law, which does not allow HIV-negative people to consent to unprotected sex, and makes little distinction between HIV exposure and transmission, places the burden on HIV-positive individuals to both disclose HIV status and insist on condom use in order to be able to avoid potential prosecution.

Through a campaign that has included providing every MP in Norway with information about the inequities of the law, and a major newspaper article from Mr Justice Cameron, published in May, representatives of HIV Manifesto and HIV Norway were hopeful that the law will be repealed during the country's revision of the its Penal Code.

The meeting also heard that a similar opportunity might also be possible in Sweden later in the year, during the pubic debate that will follow a proposal to lengthen prison sentences for assault (the law under which criminal HIV exposure and transmission is prosecuted in Sweden).

UK: Man who 'claimed he had AIDS' jailed for eight months after biting police

A 19 year-old man from Lewes in Sussex who bit two police officers whilst telling them he had AIDS, and who pleaded guilty to two counts of assault causing actual bodily harm and one count of assaulting a police officer, has been jailed for eight months by a judge at Brighton Crown Court.

According to a brief report in The Argus, it is unclear whether the man was, in fact, HIV-positive. Instead, the story focuses on the 'harm' of Post Exposure Prophylaxis (PEP) that the two police officers took following the incident.

[The man] drew blood from two officers as they arrested him at his home on April 16 for failing to turn up in court for another offence. Police said both officers were sick from the side effects of the medication they were immediately given to try to limit the chances of infection.

An earlier story about the incident in The Argus also overplays the risks of HIV transmission from a bite.

A wanted man bit three police officers before telling them: “I’ve got Aids.” They now face an agonising wait to find out if they have contracted the HIV virus which causes the deadly syndrome. Senior police condemned the attack, which came during a routine call to find a man reported to have failed to appear in court. Sussex Police said the man drew blood from each officer when he bit them on the arms and legs.They have now been told they must wait several weeks before having blood tests to show if they have caught the HIV virus, which causes Aids.

[...]

Each of the victims was given anti-Aids drugs – and spent the next 24 hours being sick because of heavy side effects. They are all due to return to hospital for blood tests in six weeks’ time...A sample of the man’s blood has also been taken to find out whether he has HIV. Chief Superintendent Robin Smith, head of the East Sussex division of Sussex Police, said: “This goes to show what police officers and, to a degree, police staff can face while doing the job of keeping the community safe...“It is sickening that people choose to bite police officers and suggest they have anything that could be contagious. These three officers now have a very anxious time ahead and so have their families and their colleagues.”

A 1998 scientific journal article examining the relationship between risk, fear and HIV transmission among police in the United States highlighted:

The policing literature on fear and risk and the epidemiological literature on HIV transmission suggest that officers' fears are not based so much on their objective risk of becoming infected. Instead, they may stem from the uncertain and unpredictable nature of police work and possibly from officers' discomfort with HIV's association with homosexuality and drug use.

It then estimates the actual risks of transmission based on the kinds of exposures that police come across in the course of their work:

Because of the fragility of the virus when outside the human body, however, the risk associated with each of these ranges from virtually nonexistent to very small, especially in comparison with the risk associated with sharing injection equipment or engaging in unprotected sex. According to the CDC, 99.7% of needlestick/cut exposures and 99.9% of eye, nose, or mouth exposures do not lead to infection. The risk after exposure of the skin to HIV infected blood is estimated to be less than 0.1%

A 2007 CDC Factsheet on HIV and transmission risks notes that although transmission is possible, it is extremely unlikely.

In 1997, CDC published findings from a state health department investigation of an incident that suggested blood-to-blood transmission of HIV by a human bite. There have been other reports in the medical literature in which HIV appeared to have been transmitted by a bite. Severe trauma with extensive tissue tearing and damage and presence of blood were reported in each of these instances. Biting is not a common way of transmitting HIV. In fact, there are numerous reports of bites that did not result in HIV infection.

Transmission via oral sex is considered much more likely and yet PEP is not offered to people for whom oral sex is their only admitted transmission risk.

What is required, then, is better education for the police to understand that their risks of HIV transmission whilst going about their business are so low as not to require PEP.

UK: Man previousy convicted of reckless HIV transmission jailed again

The sixth person to be convicted of reckless HIV transmission in England & Wales, Derek Hornett, has been jailed again for breaching an order banning him from contacting people over the age of 60, after pleading guilty last month to four separate breaches of the order, concerning four separate women.

Mr Hornett pleaded guilty to reckless HIV transmission to an 82-year old woman in December 2005. It was claimed that he began a relationship with the woman to take advantage of her secure financial position. Along with his three years, three months prison sentence he was given a Sexual Offences Prevention Order, which prohibited him from having sex with anyone without telling them he was HIV-positive, and from associating with, or working for, anyone over the age of 60.

The Western Morning News reports that Recorder Ian Pringle who passed sentence at Exeter Crown Court yesterday found the pre-sentence report "very disturbing". It seems he had again tried to establish sexual relationships with at least one of the four women.

Martin Salloway, mitigating, told Exeter Crown Court yesterday Hornett was seeing a psychiatrist and "recognised that he has got difficulties".

Hornett's HIV was "on the brink of becoming full-blown Aids" and his illness would make his time in jail more "onerous".

He added Hornett's wife, who was in court, was also terminally ill and the defendant was her full-time carer.

Passing sentence, Mr Pringle said he was certain Hornett had been trying to develop a sexual relationship with one of the women to whom the charges related and added: "It's difficult to imagine a more flagrant breach than that."

He sentenced Hornett to two years for the first breach and 12 months for each of the other three. He said the 12-month sentences would be served concurrently with one another but consecutively with the two-year sentence.

UK: HIV-positive woman who bit her best friend gets suspended sentence

Despite the best attempts of the prosecution to focus on the HIV status of a 24 year-old Plymouth woman who bit her best friend on the arm and cheek during a drunken row – and to overstate the risks of HIV transmission – she has only received an eight month sentence suspended for two years with two years probation. She was also ordered to attend anger and alcohol management classes.

According to the Plymouth Herald, the woman pleaded guilty to assault causing actual bodily harm. David Gittins, prosecuting focused on her friend's fear that she would "catch the virus" even though this was not part of the charges.

Mr Gittins said [the woman] knew she had HIV when she bit her friend. Police were called and [she] claimed she had acted in self-defence. Mr Gittins said: “[The best friend] was frightened she might get HIV, but she hasn’t.”

Judge Francis Gilbert told her, during sentencing:

“This was a violent and vicious thing to do,” he said. “It probably caused very great pain and it may have resulted in very serious consequences. You have HIV and you knew it at the time,” the judge went on... “You deserve to go to prison.”

UK: Gonorrhoea prosecution 'a dangerous development'

I am posting an excellent analysis by Dr Matthew Weait, Senior Lecturer in Law and Legal Studies at Birkbeck College, London (and author of Intimacy and Responsibility: The Criminalisation of HIV Transmission) of the recent successful prosecution of a male migrant for 'recklessly' transmitting the sexually transmitted infection, gonorrhoea, through non-sexual means.

A Dangerous Development
by Dr Matthew Weait
Senior Lecturer in Law and Legal Studies
Faculty of Lifelong Learning
Birkbeck College, London

In the recent case of R v Peace Marangwanda [2009] EWCA Crim 60, the English Court of Appeal was called upon to hear an appeal against sentence that has potentially profound implications for debates surrounding the criminalisation of HIV and other serious sexually transmissible infections. Summarised, the facts were that the applicant (PM) had been charged with two offences of sexual activity with a child, contrary to section 9(1) and (2) of the Sexual Offences Act 2003. It had been alleged that PM had met the mother of the children (E and Z), started a relationship and moved in with her in September 2005. In November 2005 PM was diagnosed with gonorrhoea, and he received treatment. A month later, in December 2005, the children, E and Z, were diagnosed as having contracted gonorrhoea. PM was charged, prosecuted and tried in 2007 after E made a complaint fo sexual abuse. The jury could not agree on a verdict after hearing PM's defence that he was not suffering from gonorrhoea at the relevant time, and that it was rather a severe from of thrush. A retrial was scheduled to take place in June 2007. Prior to the retrial a compromise was suggested by defence counsel whereby PM would plead guilty to two counts of recklessly inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. on the basis that he had recklessly transmitted gonorrhoea to E and Z.

The plea was entered

“ … on the basis that the Defendant, whilst possessed of the knowledge that he was suffering from gonorrhoea, recklessly passed on the said gonorrhoea to the two complainants.

2. Such transmission was carried our not in any way by means of any sexual contact, direct or indirect. Such transmission was likely to have been occasioned in circumstances where the Defendant, after having touched himself and then failing to apply the proper hygiene standards, has then gone on to touch the children in an ordinary way. The Defendant would, on occasion, be involved in the daily care of the two young Complainants. This would include assisting with washing, dressing and general supervisory activities with the same.

3. It was foreseeable that such a condition as gonorrhoea could have been passed and accordingly the Defendant failed in ensuring that he adhered to the proper sanitary and hygienic principles which would have been ordinarily implied.”

PM was sentenced to two years immediate imprisonment on each count, to be served concurrently. He was also recommended for deportation, disqualified from working with children for life and made subject of a Sexual Offences Prevention Order.

PM appealed on a number of grounds, one of which was that he had pleaded guilty to offences that were not medically possible and another that, even if it were medically possible, he had not acted recklessly. (The two other grounds are not of such immediate relevance here and are not discussed – see the case report.) The Court of Appeal agreed that the sentence passed was manifestly excessive and that a sentence of 12 months on each count should have been passed, to be served concurrently. For legal reasons this meant that the order relating to not being able to work with children was quashed, but the other orders were upheld.

Discussion

This is an important and worrying decision for a number of reasons. The plea of guilty to the charges under section 20 were entered on the understanding that the gonorrhoea had been passed through casual touching. PM, it was accepted, cared for E and Z (which included physical touching). The pre-sentence report (which is prepared to assist the judge in sentencing) stated that

“The defendant has pleaded guilty to the offence in accordance with the basis of plea, namely that he inadvertently passed on gonorrhoea to the two children due to poor personal hygiene.

Mr Marangwanda was, at the time of the offence, in a relationship with the mother of the two victims. He was periodically living at the family home and as such will have regular conduct with the children.

The defendant accepts culpability in as much as he acknowledges he passed on the sexually transmitted infection to the two girls due to poor personal hygiene.

…

The defendant accepts that his behaviour was reckless and that as a result, two young children contracted a sexually transmitted infection.”


It was on this basis that PM was sentenced, and the Court of Appeal accepted the reasoning. It states (at paragraph 12) that

In the judgment of this court, by his plea, the defendant accepted the medical possibility of the transmission of that disease. As he knew he had gonorrhoea, provided he knew that that disease may be transmitted by transference of mucosa by hand, that transference would have constituted a reckless act …

The Court goes on to say (at para 13) that

… by virtue of the basis of plea and the applicant's pleas, he must have been accepting the possibility that in a domestic or familial setting the disease could have been transferred. In such circumstances it would have been his duty to take the necessary protection to ensure there was no transference. We are not persuaded that there is anything in that ground of appeal.

This is, it is suggested, deeply problematic, as are other aspects of the case. First, the Court seems to be suggesting that there is a duty to take the necessary protection against the transmission of disease. With respect, there exists no such legal duty anywhere in English law. A person is not reckless because he fails to take precautions against transmission; he is reckless if it is established that he was aware of the risk of transmission. This might seem a fine distinction , but it is an important one. If the Court is thinking particularly of the positive obligation that a carer has towards children, then it should have articulated that far more clearly. In the absence of clarification it suggests that a person living with HIV has a positive obligation – enforceable at law – to prevent onward transmission to sexual partners. (And, in the light of the recent Hep B case, that those infected with Hep B may have a positive obligation to alert others not to share their razors, for example). This goes beyond the principles established in R v Dica and R v Konzani. The CPS Guidelines on prosecuting cases involving the sexual transmission of disease indicate that the appropriate use of condoms by a person living with HIV would ordinarily preclude a finding of recklessness – they do not (because the law does not require it) state that a person living with HIV is under an obligation to use a condom (or, of course, to disclose status).

Another problematic aspect of the decision is that appears to be a bad compromise. The plea was entered and accepted in part, it seems, to prevent E (the child complainant) to have to give evidence at a retrial. It is for this reason that what would otherwise have been a case involving alleged sexual offences was transmuted into one concerning offences against the person. This was arguably artificial, and (as the discussion above about the Court of Appeal’s comments about the nature of PM’s duty shows) has resulted in – it is suggested – flawed reasoning.

Finally, although it wasn’t addressed in the Court of Appeal’s judgment, there remains the question of knowledge and scientific evidence of transmission. What follows is speculative in the instant case, but important, I think, to bear in mind.

1. PM moved in with E and Z and their mother in September 2005. He was diagnosed with gonorrhoea in November 2005 and the children in December 2005. If there is any possibility that PM may have infected E and Z prior to his diagnosis, and before he had any reason to believe that he might be suffering from gonorrhoea, there was no case to answer (see R v Dica; R v Konzani).
2. If, as the Court of Appeal accepted (albeit because of the “artificial” nature of the settlement that was reached on plea to avoid retrial) that gonorrhoea may be spread manually as the result of poor manual hygiene, then questions should have been raised as to the possibility that the source of the infection may have been elsewhere. There appears to have been no scientific evidence adduced, and the prosecution did not – it appears – seek any. The CPS Guidelines make it clear that there needs to be compelling proof that the defendant is the source of a complainant’s infection – and (critically) that a guilty pleas should not be accepted unless the prosecution believes that there is sufficient evidence to prosecute. Cases involving HIV transmission have fallen because of this.

The Marangwanda case is unfortunate because it appears to be yet another example of the ways in which the ill-thought out approach of the courts to liability for the transmission of sexually transmissible diseases can – in the absence of clear thinking and understanding – have unintended effects.

Matthew Weait
23rd April 2009

UK: Man arrested for unprotected sex with several women

A 39 year-old man from Bournemouth has been arrested and released on police bail following complaints from several women in Exmouth, East Devon that he did not disclose his HIV status to them before they had consensual unprotected sex.

The case was first reported in Saturday's Western Morning News with the unbelievably stigmatising headline: The HIV Timebomb.

A spokesman yesterday said: "Devon and Cornwall Police can confirm a number of women have come forward regarding allegations of their having had unprotected sex with a man who they now believe to be HIV positive. They allege he failed to disclose this to them."

Unprotected sex without disclosure is a not a crime in England & Wales and police should not be arresting individuals based on complaints of unprotected sex.

Since then, various other papers and websites have run stories about the case, including This is Exeter (complete with quotes from local councilors - why exactly?) and, of course, the Daily Mail, which managed to totally misrepresent THT's Lisa Power, who would never have "urged possible victims to contact police" in a million years.

This looks like a witch hunt to me (and to other UK HIV advocates with whom I am in touch), and is, sadly, another example of how the police get it wrong.

The man has been released on police bail until May 11. Let's hope that the police fishing expedition, reminiscent of the case of a London woman in 2006, not only comes to nothing, but that the police are made aware of their serious errors.

UK: Report shows police mishandling of investigations into alleged criminal HIV transmission

Below are the opening paragraphs of a news story I wrote for aidsmap about a new THT report about how the police in England are handling investigations into criminal HIV transmission.

The full report, Policing Transmission, can be downloaded from THT.

A new report by the Terrence Higgins Trust (THT) launched [on January 27th] at the House of Commons has revealed a systematic mishandling of complaints for alleged criminal HIV transmission in England & Wales. The report, Policing Transmission was welcomed by the Association of Chief Police Officers (ACPO), which acknowledged that “too many times we have got it wrong".

There have been “scores, if not hundreds” of arrests since the first conviction for reckless HIV transmission in England and Wales, that of Mohammed Dica in October 2003, noted THT's Sir Nick Partridge speaking at the launch of the report in the House of Commons, hosted by Lord Norman Fowler, Vice Chair of the All Party Parliamentary Group on AIDS.

Sir Nick said that whilst most police investigations had been dropped due to a lack of evidence, during the course of these ‘failed’ investigations - which had lasted up to a year - “lives had been turned upside-down and some came close to being destroyed”.

During the period 2005-6, there was an average of one arrest every two weeks. Concerned at this number of arrests and aware of the cost, in terms of “public resources and private misery”, THT approached ACPO and the Metropolitan Police Service (MPS) in order to examine the role of the police in criminal HIV transmission investigations.

Read more here.

UK: Most gay men support criminal HIV transmission prosecutions

A startling and important new report from Sigma Research, entitled Sexually charged: the views of gay and bisexual men on criminal prosecutions for sexual HIV transmission has found that the majority of more than 8000 gay men surveyed in 2006 during the annual Gay Men’s Sex Survey support prosecutions for 'reckless' HIV transmission.

An excellent summary of the report's findings, Ignorance and stigma provide foundation for gay men's support of criminalisation of HIV transmission by Michael Carter, can be read at aidsmap.com.

The report's lead author, Catherine Dodds, reported part of these findings at the 2008 CHAPS conference, and I had the honour of joining her on stage to discuss how the gay community might be able to respond to them. A report of our presentations was published in the July 2008 edition of THT's Issue magazine.

Update: 17th March. In order to respond to a comment I'm uploading a table from the report showing who exactly supports prosecutions by HIV testing history.



As you can see, although 'only' 49.4% of HIV-positive gay men do not agree with prosecutions, a further 31% are not sure, leaving a significant minority (19.6%) in favour of prosecutions. This compares with 56.3% of HIV-negative gay men and 63.5% of untested gay men who support criminal prosecutions.

UK: Man jailed for two years for sexual hepatitis B transmission - world first?

In what appears to the first ever criminal case of sexual hepatitis B virus transmission, a man in Gloucester has been sentenced to two years in prison under Section 20 of the Offences Against the Person Act 1861 - the same law used to prosecute 'reckless' sexual HIV transmission. The man, originally from Turkey, pleaded guilty; it seems he had a lawyer who had no idea about the limitations of phylogenetic analysis.

The case sets a worrying precedent for other sexually transmitted infections. It is also a concern because hepatitis B is 50–100 times more infectious than HIV and can be transmitted in ways that do not involve sex, such as sharing items such as razors or toothbrushes with an infected person. Furthermore, the public health message on hepatitis B prevention is to get vaccinated, rather than rely on partner disclosure and condom use.

It seems very likely that Gloucester police, the local Crown Prosecution Service (CPS) and the man's laywer were not aware of the recent CPS policy statement and legal guidance for prosecutors for cases involving the intentional or reckless sexual transmission of serious infection which states that:

• Prosecutions are unlikely to take place as a result of one-off sexual encounters (the reports suggest that the alleged transmission took place as a results of a single sexual encouter). “It will be highly unlikely that the prosecution will be able to demonstrate the required degree of recklessness in factual circumstances other than a sustained course of conduct during which the defendant ignores current scientific advice regarding the need for and the use of safeguards,” it says in the legal guidance for prosecutors.

• Scientific evidence must be used to show that the defendant infected the complainant, but this evidence alone cannot conclusively prove the responsibility of the defendant for the complainant’s infection. “The prosecutor will need to be satisfied that the complainant did not receive the infection from a third party or that the complainant did not infect the defendant,” it says in the legal guidance for prosecutors. “This means that the prosecutor will need to know about any possibility which is compatible with the scientific evidence that the complainant was infected by a third party. This means enquiries will have to be made about the relevant sexual behaviour and relevant sexual history of the complainant.

This is why a defendant should always plead not guilty (and why the CPS should not accept a guilty plea) based only on phylogenetic evidence.

In a statement, the police said: "The case is the first in Gloucestershire to use techniques in DNA analysis to provide evidence that the defendant infected the victim and that the illness did not come from any other source.”

Although hepatitis B infection does not carry the same stigma as HIV, and is rarely life-threatening (fewer than one-in-ten adult acute infections, as in this case, ever become chronically infected with the virus, and even then, only about 15%–25% of people with chronic hepatitis B develop serious liver conditions, such as cirrhosis (scarring of the liver) or liver cancer) this didn't stop the UK national tabloids, The Mirror and The Sun, from creating sensational headlines (well they would, wouldn't they?). The Sun carried a photo of the man, and, stooping even lower, The Mirror even printed the name of the complainant. (In contrast I'm impressed by the Dutch, who do not ever print the names of the accused in such criminal cases.)

I'm disheartened that this case ever reached court given reassurances from the CPS that cases like these would be hard to prove, and not be in the public interest to prosecute. I'm also not sure that it is necessarily the case that people diagnosed with STIs are "rarely" 'reckless' in this manner, as suggested by both the police and The Sun Woman Editor. I'm more certain that the man's ethnicity and 'foreignness' played a major part in his prosecution, as it did the first three cases of 'reckless' HIV transmission in England & Wales.

If there any lessons to be learned, it is that anyone accused of such a 'crime' needs to get connected to lawyer who understands the issues.

Man jailed for infecting woman with deadly Hepatitis during sex
Cotswold Journal
Wednesday 19th November 2008

GLOUCESTER Crown Court jailed a Turkish man for two years after he admitted infecting a North Cotswolds woman with chlamydia and deadly Hepatitis B the first time they had sex together.

In what is believed to be the first case of its kind in Gloucestershire, cafe and restaurant worker Ercan Yasar, 29, of xx Street, Cheltenham pleaded guilty to inflicting grievous bodily harm on the woman on September 15 last year.

The court heard Yasar knew he had life-threatening Hepatitis and had been warned he should always use a condom when having sex but did not tell the woman, who was his girlfriend, about his condition when they had unprotected intercourse during a drinking session at his home.

Prosecutor, Giles Nelson, said the woman became “extremely” ill as a result of the hepatitis infection and spent ten days in hospital.

Mr Nelson said Yasar and the woman, after meeting at a Cheltenham night club in August last year, exchanged telephone numbers and texted each other over the following days before dating over subsequent weeks.

He said she went to Yasar's home after attending a works lunch and they had unprotected sex once.

In a statement, the police said: "The case is the first in Gloucestershire to use techniques in DNA analysis to provide evidence that the defendant infected the victim and that the illness did not come from any other source.”

Gloucestershire police said Yasar will face deportation when released from jail.

Man jailed for causing illness
www.severnsound.co.uk
(undated story)

A man has been jailed for 2 years for infecting a 27-year-old Gloucestershire woman with Hepatitis B. 29-year-old Ercan Yasar from Bristol was found guilty of causing GBH by not informing her he had the illness before having unprotected sex.

The woman contacted police in December 2007, after falling ill following unprotected sex with Yasar, saying he had not told her he had infection.

Yasar was arrested in April 2008 and Police were able to prove that he had been informed previously that he had the illness and was told not to have unprotected sex.

The case is the first in Gloucestershire to use techniques in DNA analysis to provide evidence that the defendant infected the victim and that the illness did not come from any other source.

Detective Constable Paul Day says: “We’re very pleased with today’s result, especially as we believe this to be the first case of its kind in the county.

“We would also like to reassure the public that incidents of individuals recklessly infecting their partners with sexually transmitted illnesses and disregarding the consequences are rare, but we hope that this case encourages people to take responsibility for their sexual health.”

Man jailed for passing on hepatitis B
The Times

November 19, 2008

Gloucester A man who had unprotected sex and knowingly gave a woman potentially life-threatening hepatitis B was jailed for two years. Ercan Yasar, 29, a Turkish restaurant worker from Cheltenham, Gloucester, knew that he had the disease and had been warned that he should always practise safe sex. The woman fell ill a week after a one-night stand with him. Detective Constable Paul Day, of Gloucestershire police, said the use of DNA to prove the source of the infection made it the first case of its kind in Britain. Yasar, who admitted inflicting grievous bodily harm on the woman, faces deportation on his release.

Lover jailed for passing sex disease
The Mirror
19/11/2008

A man who infected his girlfriend with Hepatitis B the first time they made love was yesterday jailed for two years.

Turkish-born Ercan Yasar, 29, knew he had the life threatening ailment and had been told by doctors always to use a condom.

But he did not tell girlfriend xxxx xxxx, 27, when they had unprotected sex during a drinking session at his home in Cheltenham, Gloucs.

She became very ill and spent 10 days in hospital.

Passing sentence at Gloucester crown court, recorder Neil Ford QC told him: "Your act of unprotected sex was extremely inconsiderate, selfish and dangerous.

"You satisfied your sexual urges without thought of the danger that you were causing her."

Two years for hepatitis sex liar
The Sun
19 Nov 2008

A TURKISH waiter was jailed for two years yesterday for knowingly infecting a woman with deadly Hepatitis B – a crime branded biological GBH by his own lawyer.

Ercan Yasar, 29, knew he carried the virus and had been warned he should always use a condom during sex.

But he did not tell his 27-year-old victim – who thought he was the man of her dreams – about his condition.

Yasar also gave the woman chlamydia but that did not form part of the charge. He admitted causing her grievous bodily harm.

Dangerous

The judge, Recorder Neil Ford QC, told him: “Your act of unprotected sex was an extremely inconsiderate, selfish and dangerous one.

“You satisfied your sexual urges without thought of the danger that you were causing her.”

The court heard the woman fell extremely ill as a result of the hepatitis and spent ten days in hospital.

She has since recovered but will carry the virus – which in chronic cases can cause fatal liver cirrhosis and cancer – for the rest of her life.

Prosecutor Giles Nelson told Gloucester Crown Court “selfish” Yasar learned he had Hepatitis B in 2003. He met his victim at a club in Cheltenham last August and they dated for a few weeks before having sex one Saturday afternoon after a four-hour vodka binge.

Lloyd Jenkins, defending, said Yasar acted in “a moment of madness”. He admitted: “It is biological GBH.”

Recorder Ford, who recommended Yasar be deported after his sentence, told him: “It is the sort of infection one would expect by any standards of decency would be communicated.”

The victim was not in court but housemate Sally Pulham said: “We all thought he might be the one for her – how wrong we were. It has ruined her life.”

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My view
By SALLY BROOK, Sun Woman Editor

To have unprotected sex knowing you are carrying STIs is reckless and evil.

Yasar showed callous disrespect for the woman and it is absolutely right he should be jailed for putting his own gratification ahead of another’s welfare.

Thankfully such incidents are very rare. But unless you know for sure your partner is clear, it is not worth taking any risks.