Germany: Nadja Benaissa trial is a distracting sideshow

Too much focus on the individual issues of personal morality of the Nadja Benaissa case in press reports around the world (822 and counting) and during my three live interviews with BBC World Service radio yesterday (the first of which was also used on the BBC news online website) led me to write this editorial for The Guardian.

The trial of No Angels singer, Nadja Benaissa, began yesterday and has already received worldwide media attention. It highlights what experts working in HIV prevention, treatment and care have long argued: that laws and prosecutions as a result of non-disclosure of HIV-positive status are ineffectual, counterproductive and unjust.

People with HIV around the world – including Benaissa – are being scapegoated for our collective failure in preventing new HIV infections. Moreover, it is the stigma surrounding HIV – exacerbated by the media circus that accompanies such trials – that results in far more new infections than the exceedingly rare case of an individual facing the attention of the criminal justice system.

 Read the rest on The Guardian's website, and please comment there.

 I'd like to highlight a couple of other positive pieces (hidden amongst the salacious gossip masquerading as court reporting).

Silvia Petretti's blog post asks some very good questions

For those of us who are quick to say: how could she? I would like to ask a few questions: could you imagine finding out you are pregnant, and that you also have HIV, at 17? Can you imagine the fear that you could possibly infect the baby, and the anxiety that the medications you need to take in order to prevent the transmission may harm you and the baby? Can you imagine the fear for your own self of dying a horrible and shameful death? How would you tell your partner, or your ex, or the person you are hoping to have a relationship with? And what could the consequences be?

The Times of South Africa highlights that the country's top experts decided against criminal prosecutions for non-disclosure on very good policy grounds.

The South African Law Reform Commission investigated the possibility of criminalising HIV exposure or transmission, but came to the conclusion that it would not be the best way to deal with the spread of the virus. According to a report by the Law, Race & Gender Unit and the Gender, Health and Justice Research Unit of the University of Cape Town, a note with the words "HIV positive Aids" was found on the body of a young teacher and wife, Mpho Motloung, 25, who was shot through her head in Meadowlands, Soweto, in August 2000. Also in 2000, Susan Teffo discovered she was HIV positive, and when she disclosed her status to her husband he burned her face over a Primus stove. "These are the cases that have received publicity, and the frightening likelihood is that they represent merely the tip of the iceberg," the unit reported.

Finally, Deutsche AIDS Hilfe, which is reporting from the trial (in German only), has produced a new policy statement about HIV and the use of criminal law which can be downloaded in English here.

Verdict is due August 26th, according to The Guardian.  Am unlikely to write about this case again before that date for reasons that should be clear in the headline of my editorial.

Germany: Nadja Benaissa trial begins on Monday

Update 1: August 13 2010
The trial of No Angels singer, Nadja Benaissa, now 28, begins this Monday, August 16th in the Darmstadt youth's magistrate court (Jugendschöffengericht). 

She faces accusations of one count of grievous bodily harm for allegedly not disclosing her HIV-positive status prior to unprotected sex in 2004 with a complainant who subsequently tested HIV-positive, and four counts of attempted grievious bodily for allegedly not disclosing her HIV-positive status prior to unprotected sex between 2000 and 2004 with this man, and two others.  If convicted of all charges she faces a maximum of ten years in prison.

Deutsche AIDS Hilfe have recently produced information in English regarding the specifics of Germany's HIV exposure and transmission criminal laws.  They highlight the difficulty in proving such allegations and also that most allegations follow the breakdown of a relationship.

In Germany, there is no special law that makes the transmission of HIV a punishable offence. Judgment is made in accordance with Sections 223 and 224 of the Criminal Code. Intentional or negligent transmission of HIV is bodily injury according to the Criminal Code. Unprotected sex that carries no infection, is considered attempted bodily injury and is also punishable. Accordingly, people with HIV have to take the necessary measures to protect their partners. The obligation is considered satisfied when the rules for safer sex are followed. There is then no threat of criminal consequences – not even when an infection is transmitted regardless, because the condom broke or slipped, for example.

People with HIV are liable to prosecution if they have unprotected sex and their partner does not know about their infection. The legal position here is clear. In most cases that go to court, however, the situation is more complicated. Often a couple quarrels and breaks up, then one files a lawsuit against the other.  It is often the case that the partner knew about the HIV infection.  If both partners mutually chose not to practice safer sex in these kinds of cases, then the HIV-positive person is not liable to prosecution. These arrangements are very difficult to prove in court, however. Arrangements are often made when those involved are not thinking clearly, for example, because they are in love or high on drugs. But some couples also consciously decide not to use condoms above all when the viral load of the HIV-positive partner is below the detection limit. The risk of infection is then very small.

Bild.de reported in May that Nadja had cancelled all performances with the No Angels (who have been touring Germany to promote their new album, Welcome to the Dance) due to ill health.

Original post: February 13 2010

Nadja Benaissa, 27, one of the members of Germany's biggest girl group, No Angels, has finally been charged with one count of aggravated assault and two counts of attempted aggravated assault for allegedly having unprotected sex with three men without disclosing that she was HIV-positive. One of the men has tested HIV-positive.

[Click here for a site refresh with all postings on Ms Benaissa]

Ms Benaissa is thought to be the first woman to be accused of criminal HIV exposure/transmission in Germany (there have been around 15 cases so far, all thought to have involved men), and is only the second celebrity in the world to face such charges (the first being US-born Canadian football player, Trevis Smith).

Given that the Darmstadt public prosecutor has waited ten months following her April 2009 arrest, it is my opinion that he is satisfied that he can obtain a conviction for all three charges. This would involve proving that:

• she was aware that she was HIV-positive;
• she knew that she could transmit HIV via sex;
• she did not disclose her HIV status prior to sex that risked transmission; and
  
• for the aggravated assault charge, that she - and only she - could have infected the man who tested HIV-positive. This is not easy to prove, and would require all of the man's previous partners to be located and tested for HIV, as well as expert testimony highlighting what scientific analysis is able to show, and what it can't show.

Coverage is likely to be global – it was in the weeks following her arrest – but for today has been limited to the German press. The best English-language article comes from Deutsche Welle, which adds just one extra piece of new information. Since she was under 18 when the alleged acts took place (in 2000) she may be tried as a juvenile. Nevertheless, she could still face up to ten years in prison if found guilty of all charges.

Given her high profile, it is likely that the authorities want to make an example out of her, to warn other people living with HIV that non-disclosure before unprotected sex is unacceptable. They may think they are doing HIV prevention a favour, but this may backfire and lead to a false sense of security from people at risk, who may assume that no disclosure means no HIV risk.

I'm also concerned that unless her defence gets expert advice regarding proof of transmission, she may end up pleading guilty without knowing for certain that she did (or did not) infect the man who is now HIV-positive.

I also worry that, as woman - and a recently-diagnosed young woman at that - she should not have had to carry the burden of HIV prevention solely on her shoulders. That is no legal argument, but definitely a moral and ethical one that requires highlighting.

Germany: Nadja Benaissa gives TV interview, claims she's been blackmailed

Nadja Benaissa, the German pop star who is the highest-profile person ever to have been accused of criminal HIV exposure and transmission yesterday gave her first interview since her arrest - on national TV!

Talking to a very sympathetic Günther Jauch - who also hosts Germany's 'Who Wants To Be A Millionaire - on Stern TV, she suggested that she had been blackmailed in the past due to her keeping her HIV status secret, and was now somewhat relieved it was out in the open, despite the traumatic way it had been revealed.




Highlights of the interview, published on Stern.de, are below:

How are you?
I'm HIV-positive. That means I carry this virus inside of me, but I don't have AIDS. I am taking medication that controls the virus. I look after myself, I work out, I eat well. I am a completely healthy person, even if I'm HIV-positive.

How are you dealing with the fact that your HIV status is now public?
It still feels like a state of emergency. I still can't just go anywhere and be free and live like a normal human being. I now have this mark. But I am trying to make the best of it.

Have you experienced any angry reactions to the media reports about you?
There have been a few situations. I was called a slut by someone on the plane. "There's that slut from the newspaper!" I'm really amazed that grown people behave that way.

And how has your family dealt with the situation, especially your daughter?
My daughter knew nothing of my infection until it was published in the newspaper. It's been a huge shock. My parents had tried keep the headlines away from her. She didn't go to school for a while. We tried as hard as possible to protect her but it was impossible.

What do you say to the accusation that you have knowingly infected others?
There are these allegations that need to be clarified. There is an investigation by the prosecutor against me. I am working with the authorities to try and clarify these allegations. I can't comment about the specific allegations, since there's an active case against me and so I shall say nothing about this. But I am fighting for my rights.

You were in custody for several weeks. Were there moments when you lost courage?
Sometimes people we saying: "Have you heard that they want to give you ten years!" And I'd be sitting there totally defenseless and helpless. And I sometimes thought, "My God, what if I never get out of here?"

Was it difficult to keep your HIV infection a secret for so long?
It was always a strain - this pressure. Because there were always people who wanted it to come out. And I always fought to keep that information to myself. It was very stressful - always keeping my head up high, struggling to keep going. But now it's out in the open. Now I can no longer be blackmailed.

US: Baseball star's ex-girlfriend drops civil suit alleging HIV exposure

A US$15 million civil suit that made US headlines in February (but which I did not report on my blog at the time) that alleged that a well-known US baseball player "knew or should have known" that he was HIV-positive and accused him of “gross and wanton negligence” for repeatedly refusing to undergo testing while allegedly exposing his ex-girlfriend to HIV, was settled out of court this week.

According to MLB.com (the Major League Baseball website):

Ilya Dall, 31, filed the lawsuit in court in Brooklyn, N.Y., in January, alleging that the former Major Leaguer tested HIV-positive in February 2006. [He] denied those allegations, saying he was in good health and that her suit was made to "hurt" him and that it was "full of lies."

According to The Associated Press, an order from a judge Tuesday said a settlement had been reached before the two were scheduled to appear Friday for an initial conference in U.S. District Court in Brooklyn.

"The complaint was withdrawn, which means the lawsuit was withdrawn with prejudice," Charles Bach, who represents [the baseball player], told ESPN.com. "That speaks for itself. It is over."

According to an earlier story in The New York Times, her motivation may have been his decision to sell the house she and her two children, from a previous relationship, were living in, after their break-up last autumn.

There was never any question that he did not disclose his status after he allegedly tested HIV-positve, nor that she was infected.

The suit may have been influenced by the case of Bridget B. and John B. which made headlines in July 2006 when the California state supreme court ruled that people can be sued for transmitting HIV to a sexual partner, even if they don’t know their HIV status. The case was last heard in November 2008 when a Los Angeles judge tentatively ruled that John B. acted with fraud and malice and ordered him to pay his former wife US$5 million in future loss of earnings and US$7.5 million in general damages. He had previously ruled that Bridget B. had justifiably trusted her husband until she had a reason not to.

Germany: Nadja Benaissa finally released from custody

Nadja Benaissa was released today (Tuesday) after ten days in custody, according to a news report from Der Spiegel.

Darmstadt administrative court vice president Albrecht Simon said the court had ordered Benaissa's release under certain conditions, but did not specify what those conditions were.

Khalid Schröder, the manager of her pop group, No Angels, is quoted as saying: "Nadja is well under the circumstances."

Nadja turned 27 last Sunday, whilst still on remand in a Frankfurt prison.

The article also quotes Green politician, Andreas Jürgens, who says it is scandalous that her arrest had taken place in public and that the Darmstadt public prosecutor had informed the media about her HIV status. He accused Hessian Justice Minister, Joerg-Uwe Hahn of not protecting her rights through reamaing silent and doing nothing to stop the activies of the Darmstadt public prosecutor, despite being able to do so.

A spokeswoman for the Justice Minister argued that this was not a political decision, and noted the independence of the judiciary.

Germany: Complexities of scientific evidence discussed in Spiegel magazine article

The plight of Nadja Benaissa, the No Angels singer arrested last week in Frankfurt for alleged criminal HIV exposure and transmission has already resulted in more international media attention on the issues around criminalisation than any other case I'm aware of.

Although the recent murder trial of Johnson Aziga in Canada led to a great of press and soul-searching within its own borders, Ms Benaissa's celebrity has resulted in coverage far beyond Germany.

Today, Time magazine in the United States, ran a nicely balanced article summarising the case, and including the first quote I've seen from No Angels manager, Khalid Schroeder.

...manager, Khalid Schroeder says Benaissa's arrest is the result of "a witch-hunt against Nadja. She is being prejudged. The investigation is still continuing and there are no hard facts yet. This is unfair. We want her to be released as soon as possible."

It also quotes yet another spokesperson from Deutsche AIDS-Hilfe, who eloquently sums up their objections to her arrest and to criminalisation in general.

AIDS groups have criticised the authorities' handling of the arrest and have warned against a rush to criminalise the transmission of HIV. "Based on the information that we have about the detention of Nadja Benaissa, we think she should be released," says Carolin Vierneisel, a spokeswoman for the AIDS organisation Deutsche AIDS-Hilfe. "When it comes to consensual sex, whether protected or unprotected, we talk about shared responsibility," she says. "The criminalisation of HIV transmission, as shown in this case, doesn't support HIV prevention efforts. On the contrary, it fosters the stigmatisation of HIV positive people."

Meanwhile, Germany's answer to Time, Der Spiegel, today published an English-language article that examines the difficulties the Darmstadt prosecutor faces in proving that Ms Benaissa actually infected the male complainant. This is the first time I've ever seen the discussion of the unreliability of phylogenetic analysis in a mainstream magazine article.

Investigators in the case have since ordered an immunological report to clarify if the 26-year-old singer actually infected her former partner with HIV.

Experts like Norbert Brockmeyer, a spokesman for HIV/AIDS, a network of experts funded by the German government, is doubtful if such a report can be of much value.

"The absolute proof that person A infected person B cannot be provided by medical means after a number of years," Brockmeyer, a professor of dermatology and allergology, told SPIEGEL ONLINE. He explains that the virus would have mutated too much in each of the bodies -- particularly if those infected have undergone medical treatment.

Of course, that isn't the whole story (and it's a virological, not an immunological report, this is required). Even if there are stored blood samples available from 2004 - when the alleged transmission occurred - it is still impossible to tell from a virological analysis the timing and direction of transmission. And to rule out that someone with a similar virus (and there will be many, many people with similar viruses) didn't infect the male complainaint, they would need to test all of the man's previous sexual partners between his first HIV-negative test and first HIV-positive test (assuming he'd previously taken a test) and include those samples in the analysis. In the English courts, this limitation alone has resulted in charges being dropped in three recent cases.

Germany: Media ban ignored, more details emerge in Nadja Benaissa case

Update: Nadja Benaissa may soon be out on bail, according to an English-language report in The Local that summarises a story in today's Stern.

Nearly a week after being arrested, the 26-year-old’s lawyer Christian Schertz is talking with the state prosecutor in Darmstadt, to try to get her out of prison.

Ger Neuber, spokesman for the state prosecutor said, “We are trying to find a solution to this investigative custody situation with the defence.”

But Schertz criticised the information about her HIV status having been released by the state prosecutor. He also told Stern magazine that the argument for keeping her in custody – that she might otherwise reoffend – had been made irrelevant by the fact that everyone in the country must now know of her HIV status.

[...]

He would not suggest a date on which she might be released, but said it was unlikely to be Thursday.

Bild editor-in-chief, Kai Diekmann has today published a scathing editorial, 'Enemies of press freedom' criticising the Berlin judge that issued an injunction against them reporting further on Nadja Benaissa's arrest for alleged criminal HIV exposure and transmission.

Consequently, Bild continues to run stories about the case. It claims that in June 2008, a music industry manager pressed charges against the singer. Before he did so, he had made several unsuccessful attempts to approach Nadja. The man then went to the police, telling them he was infected by Nadja and that she hadn't disclosed before unprotected intercourse.

It then quotes Darmstadt public prosecutor Ger Neuber.

"The criminal charges against her were pressed at the end of June 2008. In cases like this, we usually try to approach the accused first. The police tried to do so by the end of August without any result. After that, the singer's lawyer came forward. He asked to get access to our files in October and returned the files in November 2008 with a note saying he wanted to consult with his client. There was no further reply. That was when we started further investigations, which showed in the late stages of the proceedings, that two other men are supposedly to have had unprotected intercourse with her. That is why she is now under strong suspicion with the risk of recurrence."

Whilst some other Berlin-based papers, such as the broadsheet Berliner Zeitung, only refer to "a pop star", using neither her name nor her image, and talks about a previous case in Berlin from 2000, the tabloid BZ today ran an interview with an ex-boyfriend, Abdou Mbodji, who says he was with her between 1998 and 1999, that she had previously had a drugs problem, and that she was diagnosed in March 1999.

Nadja had an abscess under her arm. One day it hurt so much that I brought her to the hospital. There was also an AIDS test. Nadja burst into tears. I just took her in my arms and we both cried. I had an AIDS test the next morning, which was negative.

In the English-language Bild, which ran a different story today from its German counterpart, public prosecutor, Ger Neuber, is quoted as saying:

An investigation to see whether the virus traces match up with Nadja is now under way.

However, to focus on the idea that immunological and virological tests will determine whether Ms Benaissa actually infected the male complainant who is HIV-positive, is naive. Those of us with knowledge of this area know that this is extremely difficult to prove but that there is widespread judicial ignorance about this.

A second story in German-language Bild published today summarises the reaction of her fans - which range from total support, to disbelief, to condemnation. Examples include:

No matter what happens, your fans are there for you. Even if you have tested HIV-positive , it doesn't change you as a human or a musician.

I have nothing against people who are HIV-positive ..., but I think it's irresponsible, like playing Russian roulette. This is intentional injury and must be punished.

Germany: Nadja Benaissa's lawyers win injunction to prevent further media reports

Lawyers for No Angels singer, Nadja Benaissa, have sought and won an injunction against Bild, the Berlin-based tabloid that broke the news of her arrest for alleged HIV exposure and transmission, that forbids the paper to run any further stories about her.

Bild has been the primary source of the hundreds of news stories about the case that have so far been published worldwide, including many with inaccurate and stigmatising headlines such as this one from Australia: 'Popstar 'deliberately infected partners with HIV'


Earlier today Bild ran an interview (in English) with a man who claims he had unprotected sex with Ms Benaissa without her disclosing her HIV status. It is filed under 'celebrity gossip'.

A press release issued yesterday (in German, unofficial English translation below) by Ms Benaissa's lawyer, Christian Schertz, made it clear that her privacy had been grossly violated by the Darmstadt public prosecutor's office.

The press release of the prosecution is not in accordance with the federal media laws. The media have learned about the arrest of our client through an indiscretion.

Furthermore, the balancing of conflicting interests should have led to the conclusion not to publish an official statement of the charges. Currently, it is only about an ongoing investigation, so that the principle of presumption of innocence must be observed not only by the state, but also by the media.

Against this background, we believe that reporting on this is unlawful, if and as long there are no charges. This is even more true, since the circumstances that are now subject of the accusation go back several years and refer to the privacy of our client. There is no evidence of any kind of current criminal behaviour of our client.

Moreover, to this day, there is no proof whatsoever that our client is responsible for the infection with HIV of another person.

Against this background, and on behalf of our client, we ask you to consider these circumstances. Furthermore we are expecting our client to be released from remand immediately, since there are no reasons for detention. Moreover we believe that remanding our client in custody is an overly proportionate action.

Today, the Berlin District Court issued an injunction against Axel Springer, publisher of Bild, ordering it not to report on the case or use her image, or face a €250,000 fine. It appears that at least some other media in Germany have followed suit - public broadcaster ARD pixellated Ms Benaissa's face when they reported the injunction on this evening's news, although RTL have just run a tabloid-style feature that included an interview with a 'friend' who said that Ms Bernaissa allegedly was aware of her HIV status even before she auditioned for TV talent show, Popstars, in 2000. Given that she gave birth to a daughter in 1999, it is possible that was she diagnosed, at 17, during routine prenatal screening.

In related news, Germany's main HIV organisation, Deutsche AIDS Hilfe, yesterday issued a press release (in German, unofficial translation below) some of which has been widely quoted in today's news stories in Germany.

Marianne Rademacher, spokeswoman of Deutsche AIDS-Hilfe states: "Nadja Benaissa should be released as quickly as possible. According to the information available to us so far her arrest is a disproportionate action of the Hesse judiciary. We urge the media to report objectively about the case and not to prejudge Ms Banaissa. The responsibility for allegedly unprotected sexual intercourse is being pushed towards Ms Benaissa alone, without asking about the co-responsibility of her sexual partners. But the German policy towards fighting HIV/AIDS is considered especially exemplary for acting on the assumption that everyone is responsible for themselves and for its solidarity and its fighting any kind of stigmatisation. The Hessen judiciary obviously want to make an example of her. But the judiciary must not be a protagonist in German HIV prevention."

Since the 1990s, convictions in the context of HIV transmission have increased. This had implications on the prevention work in the field of HIV/AIDS. But high-profile prosecuting of people with HIV/AIDS can lead to the illusion of the state being in control of the problem. This might lead people to neglect means of precaution (safer sex). Criminal prosecutions will not work as a deterrent in this case. For only a person who knows that he or she is HIV positive can be prosecuted. Criminalising HIV transmission could possibly make people prefer not to get tested, out of the fear of repression. The DAH will continue to act on the assumption of shared responsibility of all parties in consensual sexual contacts. This has been and remains the basis of our work.

Another DAH spokesperson, Jörg Litinschuh, told The Guardian:

This case fits fantastically into the tabloid and media landscape. It centres on a famous woman, sexuality and possible guilt. It's a form of modern witch-hunting and I hope it's not an indication that the politics of dealing with HIV and AIDS is becoming more restrictive."

DAH, and others, are also concerned about the way she was arrested, so publically, prior to performing at a concern in Frankfurt over the Easter weekend. The Darmstadt public prosecutor's office claims that they had tried to arrest her at home but she was never there, and so picked a time and place that they knew they would find her. The same evening she was arrested, a Frankfurt judge issued a custody order, claiming that she might infect others if allowed to be freed on bail. She is currently being held in a one-person cell in a women's prison near Frankfurt.

Listening online to an Irish radio chat show on the subject this afternoon, and reading stories and related articles and comments from all over the world, there's little doubt that Ms Benaissa's plight has brought the issue of criminalisation of HIV exposure and transmission, and debates around responsibility and disclosure, to centre stage.

Whether Ms Benaissa will benefit from this is unclear.

My concern is that the system may want to make an example out of her, as has been the case with many high profile prosecutions in other countries, despite the possibility of at least some public sympathy, given that she has a large fan base and, as a woman, cannot possibly have final say or control over the use of male condoms.

Germany: Pop star arrested for criminal HIV exposure and transmission

Nadja Benaissa, 26, one of the members of Germany's biggest girl group, No Angels, was arrested in Frankfurt last Saturday, following complaints from three men that she had unprotected sex with them without disclosing that she was HIV-positive. One of the men has tested HIV-positive.

According to the first English-language report, in Germany's Spiegel Online (which is very similar to the German version):

The public prosecutor's office in the western town of Darmstadt said the singer was being held because of the "urgent suspicion that the accused had unprotected sexual intercourse with three people in the years 2004 and 2006 without telling them beforehand that she was HIV positive."

At least one of the partners has since been tested positive for HIV, allegedly as a result of having intercourse with her, the prosecutor's office said in a statement.

The singer faces a possible charge of grievous bodily harm which carries a sentence of between six months and 10 years, the office said. She has been remanded in custody.

The story has hit all of the German media today with a bang, making front-page news. By any measure, this is an exceptional story.

Ms Benaissa is thought to be the first woman to be accused of criminal HIV exposure/transmission in Germany (there have been around 15 cases so far, all thought to have involved men), and is only the second celebrity in the world to face such charges (the first being US-born Canadian football player, Trevis Smith).

It appears that Ms Benaissa's HIV status was not in the public domain until today. However, hidden deep in Google's cache is a December 2006 posting on a music blog alleging not only that she was HIV-positive but that she was responsible for infecting a friend of the poster, and warning others about her.

Canada: Trevis Smith loses appeal

Trevis Smith – the professional Canadian football player found guilty on two counts of HIV exposure and imprisoned for five and a half years – has lost his appeal.

This is news all over Canada, but the most detailed report comes from the local paper in Regina, the Leader-Post.

Saskatchewan court dismisses former Roughrider Smith's appeal
by Karen Brownlee, with files from Jana G. Pruden
Thursday, May 15, 2008

REGINA -- The Saskatchewan Court of Appeal dismissed former Saskatchewan Roughrider Trevis Smith's appeal of his conviction on two counts of aggravated sexual assault.

Smith was convicted in February 2007 of having unprotected sex with two women without disclosing to them that he is HIV-positive. He filed an appeal within weeks of his conviction.

Smith's lawyer, Clemente Monterosso of Montreal, argued in the Saskatchewan Court of Appeal in late April that his client had been denied at least two rights during his trial -- the right to be presumed innocent and the right to remain silent.

However, Saskatchewan Court of Appeal Justices Gary Lane, Georgina Jackson and Darla Hunter said in their decision released on Wednesday morning that it was appropriate that the trial judge found Smith guilty.

"We are unable to see any basis for interfering with the trial judge's conclusion," wrote Lane.

The decision also said it was "open to the trial judge to disbelieve Smith and to find the defence evidence did not raise a reasonable doubt."

The three concurred they were satisfied that no error was made when the trial judge, Provincial Court Judge Kenn Bellerose, believed the two complainants and convicted Smith based on their evidence.

Smith's testimony during his trial differed greatly from the complainants.

Smith testified that he had not had sex with one of the complainants after learning of his HIV status. Bellerose didn't believe him.

In Smith's appeal, it was argued that the judge needed to listen to Smith and consider his testimony as part of the total evidence presented. Jackson, Lane and Hunter said in their decision that Bellerose had considered all the evidence and concluded that he didn't believe Smith. The evidence supports that conclusion, they state.

As for the second complainant, Smith said he had protected sex with her, while she said protection wasn't used.

Again in Smith's appeal, it was argued that Bellerose held Smith's testimony to a different standard than that of the complainant. This in part violated Smith's right to silence, it was argued, since Bellerose relied on evidence from a public health nurse and the police to assess Smith's credibility.

Jackson, Lane and Hunter said again that Bellerose reviewed all the evidence in deciding Smith's credibility on this point. Bellerose also explained extensively why he believed the complainant, the three state.

Monterosso has said that Smith is willing to take the case to the Supreme Court of Canada.

Smith is serving a six-year sentence at the Prince Albert Penitentiary. He is more than a year into his sentence and will be eligible for parole in February. He can apply for day parole this fall.

Canada: Judge in Trevis Smith case was prejudiced claims appeal

The lawyer for Trevis Smith – the professional Canadian football linebacker sentenced to five and half years' jail in February 2007 for HIV exposure (aggravated sexual assault) – is appealing for a new trial in the Saskatchewan Court of Appeal. The main legal argument is focused on Smith's right to be presumed innocent until proven guilty, claiming that Judge Kenn Bellerose was prejudiced.

Full story from The Canadian Press below.

Lawyer for HIV-positive former CFLer seeks new trial on sex assault charge

24th April 2008

REGINA — The judge who convicted a former Canadian Football League player of knowingly exposing women to HIV focused too much on the testimony of the victims, while giving the accused's defence short shrift, the Saskatchewan Court of Appeal heard Wednesday.

Lawyer Clemente Monterosso was in front of the province's highest court arguing that Trevis Smith should be given a new trial. Smith was convicted of two counts of aggravated sexual assault last year after a judge found the former Saskatchewan Roughrider linebacker had unprotected sex with two women - one from Regina and one from British Columbia - and didn't inform them of his HIV infection.

Monterosso's central argument focused on Smith's right to be presumed innocent until proven guilty of the charge.

The lawyer attacked the way provincial court Judge Kenn Bellerose's decision dealt with the evidence from the Regina woman before it dealt with Smith's testimony. In doing so, Monterosso contends the trial judge decided Smith's victims were credible before he decided not to believe Smith's testimony.

"He already made up his mind before listening to the defence," Monterosso told the three-judge panel. "Once this is done there is absolutely no presumption of innocence for Mr. Smith - he is guilty as charged."

But Crown lawyer Bev Klatt argued Bellerose contrasted the victims' testimony against Smith testimony throughout his decision. In the end, Klatt said, the judge decided Smith simply wasn't credible.

"He's looking at both all throughout," Klatt argued.

Smith, an Alabama native who was arrested and charged in 2005 while still a member of the Roughriders, was sentenced to 5 1/2 years for the sexual assaults and an additional six months for various bail violations to which he pleaded guilty.

He is currently serving his time in Prince Albert, Sask. He is eligible for parole in February. His statutory release date after serving two-thirds of his sentence is February 2011.

At trial, the B.C. woman said she and Smith had unprotected sex several times after he found out he was HIV-positive in November 2003, but he never told her he had the virus - even when Smith became aware she wanted to donate a kidney to her ailing father.

Smith testified he told the woman about his condition in August 2004 and that the two used condoms during sex from that point.

The Regina woman testified she had a casual sexual relationship with Smith. She said Smith denied rumours that he was HIV-positive and the two had unprotected sex on three separate occasions.

Smith denied having sex with the Regina woman after he tested positive.

Neither woman had tested positive for the disease.

Smith's testimony at trial contradicted not only the evidence of the victims, but previous statements he gave to police and public health nurses and even an agreed statement of facts entered by his lawyers at trial. Bellerose rejected virtually all of Smith's testimony, at time referring to him as "totally unbelievable" at points.

Monterosso also argued Wednesday that Bellerose's use of the police statements in deciding Smith's credibility was an error because Smith had the right to remain silent with police and could say as little or as much as he wanted.

But Klatt pointed out that Smith gave a voluntary statement to police and was advised of his rights before they talked to him.

The appeal court reserved its decision.