Sweden: Latest HIV non-disclosure prosecution highlights why Sweden's "nanny state" is getting it so wrong

Last week a 31-year-old woman, previously found guilty of attempted aggravated assault for having unprotected sex with her male partner without disclosing her HIV-positive status, was sentenced by the Falun District Court to 18 months in prison.  The man has not tested HIV-positive.

An editorial by the ubiquitous Professor Matthew Weait in today's Newsmill ('Rädsla för det orena bakom Sveriges hårda hiv-lagar' / 'Fear of the unclean behind Sweden's harsh HIV laws') critiques such prosecutions as symptomatic of Sweden's "nanny state" approach to the lives of its citizens.

So far, of the eleven comments, only one appears to agree with Matthew's brilliant but challenging assessment. Fortunately, it is not necessarily the general public in Sweden that needs to be persuaded to change course, but Sweden's politicians.  In this regard, the editorial may be helpful to the two year campaign by RFSU (the Swedish Association for Sexuality Education), HIV-Sweden, and RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) to raise awareness and advocate against overly draconian HIV criminalisation in Sweden.

Here's the original English version adapted from Matthew's blog.

There is a horror film from 1992 called “The Hand that Rocks the Cradle”. The plot centres on the efforts of a vengeful nanny to destroy the life of a woman who the nanny blames for her own husband’s suicide and the miscarriage she subsequently suffers. The title is a good one for the film because it suggests security and safety when the opposite is in fact the case. There is nothing more disturbing than discovering that the person in whom you have put your trust is in fact the source of danger and harm to the thing you hold most dear.

Sweden has rocked its children in a cradle handed down through the generations for over a century, carved from the warm, soft wood of social democracy. And, for most of the children, the cradle is a very safe place. Indeed, many have fallen asleep as she rocks them and find the constant motion so comforting that there is little desire to wake up (which suits nanny just fine). For some other children though, the story is very different. Beware those who refuse to believe all of the stories nanny tells them, or the children behaving in such a way that she thinks will set a bad example. It’s not that she wants to be cruel, but she knows what’s in their best interests. She has little, if any, tolerance for those who jeopardise all the work she has done in raising the good, obedient, children, and she will take almost any action necessary to show the bad ones the error of their ways and bring them into line. Tough love: that’s nanny’s motto.

Some readers may find this extended metaphor shocking. It is meant to be. I, like many of my contemporaries in countries with less welfare-oriented, and stronger liberal-conservative, political traditions have always thought of Sweden and its neighbours as some kind of Nirvana – a promised land in which no-one will ever be too rich, and no-one too poor; where the contract between state and citizen assures security and support for all, irrespective of the personal misfortunes and disadvantages people may experience.

My recent research into Sweden’s response to people living with HIV has demonstrated how this image – accurate in many respects – is only part of the story. Not only has Sweden detained more than 100 people under its communicable disease legislation since the epidemic began (and been held, in one case, to have violated the European Convention on Human Rights as a result), it criminalises more people per 1000 living with HIV (PLHIV) than any other country in Europe. It criminalises them not only for deliberate transmission, but for non-deliberate transmission and for exposure (where HIV is not in fact transmitted). It criminalises only those who know their HIV status, despite the fact that the source of most new infections is people who are undiagnosed, and ignores the fact that PLHIV on effective treatment and with an undetectable viral load present practically no risk of onward transmission to a partner during sex. It criminalises these people despite the fact that HIV is a public health issue, despite the fact that there exists no evidence that criminalisation has any public health benefits, and despite the fact that the sensationalist headlines which accompany stories about HIV cases contribute to and reinforce the stigmatisation of all PLHIV.

It is my strong belief is that Sweden’s coercive and punitive response to HIV has its source precisely – and paradoxically – in values that have become so embedded in the psyche of the general population over the past century that anything, or anyone, that threatens them is treated as a dangerous contaminant to be dealt with accordingly. Just as with its approach to sex work (even this term is disliked), which treats all workers as victims and all men as deviant criminals, and drug use (where harm reduction – despite its efficacy – is distrusted because it suggests tolerance of something essentially dirty and dangerous), HIV is criminalised because it threatens, at a very fundamental level, what being Swedish means. HIV is not clean. HIV is not healthy. HIV is not normal. For as long as HIV can be contained among men who have sex with men, drug users and migrants – and (critically) be seen to be contained there by everyone who is not a member of these groups – the Swedish self-image of a country committed to enlightened, progressive values can be sustained. And because this is so important, any measures - however repressive, illogical or misguided – are acceptable.

Since March 2012, Sweden has a new Ambassador to the Kingdom of Swaziland, Ulla Andrén. On presenting her letters of credence to the King, Ambassador Andrén emphasised “the importance of a continued effort to work against the HIV/AIDS pandemic” in that country. Swaziland has the highest HIV prevalence in the world, with more than one in four people living with virus (some 200,000 people). Given the passionate commitment it has demonstrated to punishing PLHIV domestically, and its belief in the value of a punitive response, it would seem only sensible that Sweden should suggest that Swaziland adopts its. Except of course it shouldn’t do this, and nor would it. But it’s a serious point though. If it would be wrong to recommend the criminalisation of HIV in Swaziland, where HIV remains, for many, a dangerous and deadly disease, then why is it OK to criminalise it at home, where people who are diagnosed can lead long and otherwise healthy lives?

We all understand why the children like sleeping in nanny Sweden’s cradle. But it might be interesting, and liberating, for them to wake up and test her patience a little …

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Czech Republic: 18 year-old pregnant woman gets 2 1/2 years for HIV non-disclosure

An 18 year-old pregnant woman from Eastern Bohemia in the Czech Republic, coinfected with both HIV and Hepatitis C, was sentenced to 2 1/2 years in prison last week for not disclosing that she was HIV-positive before having unprotected sex with her 19 year-old boyfriend. The judge, Miroslav Veselský, classified the 'crime' of HIV non-disclosure as 'attempted grievous bodily harm'.

This is only the fourth-ever prosecution for HIV non-disclosure prior to unprotected sex in the Czech Republic of which we are aware - and the first-ever prosecution of a woman. A young pregnant woman at that.  A young pregnant woman who spent her entire life in foster homes and juvenile institutions according to the two news reports of the case here (English translation here) and here (English translation here).

She was diagnosed with HIV and hepatitis C at the age of 15 and a year later was treated for dependence on methamphetamine and heroin. After turning 18 she was moved to a social care home  (where, according to Czech law, people with HIV must disclose their status), and the social care staff monitored her private life.

When staff learned that she was going out with a person named in the news reports as John N., they told her to disclose her health status to him or face the consequences.

"She told me that she has hepatitis C. The HIV - she said nothing, probably wanted to be with me and she was afraid of losing me."

It transpires that John was not a complainant in the case, but simply a witness. It was the care home staff who notified the police. In fact, John stated that although almost all of their sexual encounters were unprotected, he acquired neither HIV nor hepatitis C. Another partner, who went out with the young woman after her relationship with John ended also testified that he knew that the the young woman was HIV-positive and wore a condom.

The young woman was actually tried in absentia, at her own request, because she is eight months pregnant. Justice Veselský told the court he had never come across a case like this in 30 years on the bench and although the usual sentence for attempted grievous bodily harm is five to twelve years, he listened to appeals from both the defending and prosecuting counsel and decided to be "pragmatic" and "lenient" with the 2 1/2 year sentence.

The young woman has already served four months in custody, and can apply for parole in 15 months. This means, of course, that she will give birth in prison. In early February she will be taken to a detention hospital in Prague to prepare for childbirth.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Belgium: First criminal conviction under poisoning law, advocates caught unawares

Last week saw the first successful prosecution for criminal HIV transmission in Belgium. The case surprised the main HIV support organisation, Sensoa, who were only informed of the case by the media because neither complainant nor defendant (both of whom were African migrants) had contacted them for support or legal advice.

Details of the case are relatively sketchy and only available in Dutch-language news reports, available here (English translation via Google) and here (English translation via Google).  A more detailed news story appeared following the man's conviction in De Standaard, but I am unable to translate it.  They have been supplemented via a colleague working on the issue at Sensoa.

The facts in brief.

A 54 year-old man, originally from Angola, was found guilty of 'knowingly infecting' his former wife (originally from Congo, and thought to be significantly younger) with HIV via the existing criminal law of poisoning and sentenced to three years in prison, two of which are suspended.

The couple met and married in 2004 and the woman discovered she was HIV-positive during pre-natal testing in 2005.  Court evidence showed that her husband was diagnosed in 1994, whilst married to his first wife, but that he was in deep denial of the diagnosis because, according to his defence lawyer, Rafael Pascual

My client is very religious. He prayed for healing. His first wife and the children he had with her never became infected. Therefore he assumed that his prayers were answered. Without ever taking drugs.

Pascual also unsuccesfully argued that the complainant could have been infected by someone else, and that scientific evidence of his responsibility for infection was inconclusive.

The prosecutor had asked for five years in prison, two suspended, but the court gave a more lenient sentence.

Sensoa's position – and difficulty in reaching marginalised populations – was highlighted in this article in De Standaard (English translation via Google) published last Thursday, the day of the verdict.

Sensoa, the Flemish service and expertise in sexual health, is concerned about the matter in Huy. "We are not asking for criminal prosecutions," said spokesman Boris Cruyssaert. "In neighboring countries, we see that it is counterproductive. It just makes the taboo, because nobody dares to know if they are infected."

"That does not mean that HIV patients should not share responsibility [for HIV prevention]," says Cruyssaert. "Only in the case of intentional transmission [should the criminal law be used]. The cultural aspect [of HIV] is often deeply rooted faith. Of course prayer does not eliminate HIV, but the Angolan man is very religious. He was really convinced that his prayers were answered. "

Sensoa tries to reach other cultures, with accessible information [about HIV] but that is not easy. Since 2009, in an opinion by the National Council of the Order of Physicians, a doctor can, in exceptional cases, inform the partner of an HIV patient [if there is a belief of exceptional risk of harm].

The case highlights three important issues.

First, the general law can always be applied even when it appears that a country has so far been spared prosecutions.

Second, people with HIV who have no connection with HIV support services may feel that the criminal law is their only recourse to justice, when appropriate counselling may have mitigated the sense of betrayal felt by the complainant.

Third, cultural issues (including faith-inspired denial) can have a major impact not only on disclosure, but also acccess to treatment, care and support.

Prior to this case, only two individuals had approached Sensoa for legal assistance, and these were civil cases, involving custody issues. In both cases the HIV-positive status of the father was used in court in an attempt to take away the father's rights.

Two previous attempts at using the criminal courts for HIV exposure or transmission in Belgium were unsuccessful. One involved an HIV-positive man prosecuted for not disclosing to his girlfriend who subsequently tested HIV-positive, and a 2007 case involved an HIV-positive man from Ostend who was prosecuted for attempted murder for not disclosing to his boyfriend, who remained HIV-negative.

Canada: (UPDATE with documents) Montreal woman prosecuted in revenge, sentenced to a year in the community, acquitted on appeal

Update: April 28 2011
In December 2010, the Court of Appeal acquitted the Montreal woman known as D.C. of the charges based on the fact that her viral load was undetectable at the time of single alleged one-off unprotected encounter, and therefore she did not pose "a significant risk of serious harm" to her ex-partner.

Thanks to a colleague in Canada, I now have the (unofficial) English translation of the full text of the judgement, highlights of which are below.  The full text can be downloaded here.

 [103]    The test is twofold: the significance of the risk, and the seriousness of the harm.
[104]    At what level is the risk sufficiently "significant" and the harm sufficiently "serious" to characterize a particular conduct as criminal?
[105]    In the case of HIV, the seriousness of the harm is undisputed. HIV infection remains a serious one, [translation] "potentially fatal", according to Dr. Routy, regardless of the brilliant advances made by medicine in recent decades. According to current medical data, HIV infection is irreversible. The drugs developed to fight this disease are efficient, but they come with significant side effects and the challenge of striking a balance between the ability to control the virus and the ability of the patient to tolerate the medication remains.
[106]    In Mabior, in paragraph 64, Steel J.A. wrote:
64     Nonetheless, I do not think it can be disputed that being infected with HIV subjects an individual to serious bodily harm. Although no longer necessarily fatal if treated medically, HIV is an infection that cannot be cured at this time and is a lifelong, chronic infection. For those who become infected, it is a life-altering disease, both physically and emotionally. Individuals must take medications every day, and the condition is potentially lethal if they do not have access to treatment or fail to take the medications. Even with treatment, HIV infection can still lead to devastating illnesses. Moreover, the emotional and psychological impact of dealing with such a disease is, no doubt, overwhelming. In their factums, both the accused and the intervener acknowledged that acquiring HIV constitutes serious bodily harm.
[107]    I share her opinion.
[108]    The significance of the risk is a more difficult question to solve. At which point can one say that the risk is "significant"? 1 in 50,000, 1 in 10.000, 1 in 1000, 1 in 100, 1 in 10? The complete absence of risk is certainly not the test that Cuerrier intended us to apply.
[109]    The argument claiming that, in light of the seriousness of the harm associated with HIV, any risk of transmission is "significant" cannot be accepted without distorting the test.
[110]    For the failure by HIV-positive individuals to disclose their condition to partners to be sanctioned by criminal law, the risk of transmitting the virus must be significant.
[111]    In Mabior, in paragraphs 68 and 69, Steel J.A. wrote:
68     I agree that the nature of the harm can affect the determination of what is considered to be a significant risk. As the magnitude of the harm goes up, the threshold of probability that will be considered significant goes down. However, to have required a complete elimination of risk rather than a significant risk was an error in law.
69     So one must determine what constitutes a "significant risk" of transmission in any particular case.  ...
[112]    I agree. Each case must be assessed by the light of its own circumstances.
[113]    Again in Mabior, in paragraph 113, Steel J.A. wrote the following on the subject:
113     Consequently, no comprehensive statement can be made about the impact of low viral loads on the question of risk. Each case will depend on the facts regarding the particular accused, and each case will depend on the state of the medical evidence at the time and the manner in which it is presented in that particular case.
[114]    Once again, I agree.
[115]    In the present case, according to the evidence on the record, the viral load was undetectable, and remained so for the whole period of time identified in the indictments, that is, June to August of 2000. At the time, the risk of transmitting HIV during unprotected sexual intercourse was 1 in 10,000. Without being zero, the risk was, according to Dr. Klein, [translation] "very weak, very minimal", or, according to Dr. Routy, [translation] "very, very low".
[116]    Also, we must not lose sight of the fact that in this particular case, unprotected sexual intercourse only occurred once before the complainant was informed of the appellant's HIV-positive status.
[117]    In this context, I believe that the fact that the appellant did not disclose that she was HIV-positive did not expose the complainant to a "significant risk of serious harm" within the meaning of Cuerrier.
[118]    The words used by both experts to quantify the risk, that is, [translation] "very weak", [translation] "very minimal", and [translation] "very, very low", are incompatible with the existence of any significant risk whatsoever.
[119]    With respect for the trial judge, I believe the Crown did not establish that the complainant's consent to unprotected sexual intercourse, prior to being informed of the appellant's HIV-positive status, was vitiated by fraud.
[120]    Consequently, there was no sexual assault and, therefore, no aggravated assault.
[121]    In Mabior, Steel J.A. concluded her reasons by saying that she understood that for the complainants, any risk of being infected was too much risk, and that they would have wanted to know prior to consenting to sexual intercourse. She adds that this point of view is shared by many, at least from an ethical or moral standpoint, but that, for the time being, this is not the test that the judiciary must apply. As the test was conceived at a time when the fight against HIV was in its infancy, Steel J.A. alluded to the possibility that the Supreme Court might want to revisit the test of "significant risk of serious harm" in order to dispel any inherent uncertainty. I add my voice to hers and note that in light of its numerous social, ethical, and moral ramifications, the initiative of revisiting the entire notion of transmission risks for serious infectious diseases, in the context of Canadian criminal law, should be the responsibility of Parliament.
[122]    For these reasons, I would allow the appeal, set aside the judgment under appeal, and acquit the appellant of the two charges brought against her.

This is not the end of the story, however.

The Crown has sought leave to appeal and the case is likely to be heard in the Supreme Court later this year or early next year.

Along with the much more complex Mabior case, who was also partially acquitted on appeal due to his using a condom or due to his undetectable viral load when not using a condom and which is also headed for the Supreme Court, these two cases will revisit the 1998 Cuerrier decision and may establish new tests for "significant risk of serious harm" as it relates to non-disclosure of HIV status prior to sex.

Original post: July 15 2008
The Montreal woman who was found guilty of HIV exposure in May, has been sentenced to a year to be served in the community. The woman, who was only prosecuted in revenge for reporting her (now ex) partner to the police for being violent against her and her 18 year-old son, was so ill that the judge could not imprison her.

I have already commented on this tragic case in my previous posting, but what I will say here is that judging from the comments on the CBC's website, where the story was reported, I am very worried about the state of public opinion in Canada.

Although a few people pointed out the real issue – that she was victimised by Canada's criminal justice system for having a law that allows disgruntled exes to make a complaint about a 'crime' that they had no problem with until their feelings changed towards to their ex-partner – many said the law was anti-male because many men, including Canadian football player Trevis Smith – have been jailed for much longer for 'similar crimes'.

Others have gone further, calling her a potential murderer, or for the names of "these carriers of HIV" to be made public "for the good of the society", highlighting the fact that the criminalisation of HIV exposure and transmission, and media reports about the trials, serve as lightning-rods for public opinion about people living with HIV. In the minds of so many Canadians, the woman from Montreal – and 'people like her' – are responsible for the HIV epidemic in their country.

The truth couldn't be further from this myth. An incredibly important and robust study from Quebec published last year found most HIV transmission comes from the undiagnosed; half of it during the first six months of infection. It is undiagnosed people with HIV, rather than those who are diagnosed, who are primarily exposing and transmitting HIV to their sexual partners.

Not only is it undiagnosed HIV that is perpetuating the HIV epidemic; diagnosed people on successful treatment are now considered to be sexually non-infectious by some experts, and the policy of treating people to prevent transmission is now a reality in British Columbia.

How can one arm of policy - Canada's criminal justice system - be so far behind the thinking of another arm? Getting people tested and on treatment is the most effective way of mitigating the epidemic. Laws criminalising individuals may create a moral tone, or exact revenge in a victim/perpertrator paradigm sort of way, but it does nothing to mitigate the HIV epidemic, and may actually make things a lot worse.

And although these trials create the illusion that HIV-positive people are primarily vectors of transmission, and the media reports of the trials can be innacurate and stigmatising, the rise of Web 2.0, with its interactive comments (even those which are moderated, such as the CBC's), adds insult to injury.

On the other hand, perhaps reading these comments is the best way of gauging public opinion. even though the judge in the forthcoming Johnson Aziga murder trial doesn't think that ordinary Canadians have "fears, assumptions and prejudices about HIV, which may feed into [their] judgments and assumptions about [people] accused [of HIV exposure and transmission] and [their] ability to assess the evidence in a calm rational fashion."

I can't help but wonder whether the dozen or so prosecutions in Canada this year have adversely influenced public opinion and that the judge is wrong.

1 year sentence for HIV-positive woman guilty of assault
Sentence to be served in community because of woman's health, court says
CBC
Wednesday, July 9, 2008

A Quebec woman living with AIDS has been given a one-year sentence, to be served in the community, for hiding her HIV status from her former boyfriend.
Quebec Judge Marc Bison handed down the sentence on Tuesday, after the woman was found guilty of aggravated assault against her ex-boyfriend for failing to tell him she was HIV-positive when the two started courting.
The woman acted irresponsibly and committed a serious crime by depriving her ex-lover of the right to decide whether he wanted to have sex with her despite her status, Bison said at the Longueuil courthouse.
Anyone with a condition as serious as HIV has a legal duty to inform his or her partner, because the virus is not like a common cold, he said.
The sentence would normally be served in prison, but because of her fragile health, she will serve it in the community, the judge said. The woman is in a treatment centre waiting for experimental drugs.
A publication ban in the case prevents the man and woman from being named, but they can be identified by their initials.
When the couple first started dating in 2000, D.C testified she initially withheld her HIV status from J.L.P., but after three months told him she was infected, the court was told.
J.L.P. decided to stay in the relationship. D.C. testified in court they used condoms from the beginning of the relationship, but the court determined the couple had unprotected sex at least one time.
HIV complaint made after assault charge laid
The couple broke up five years later, after the man was charged with assault following the woman's complaints of domestic abuse.
While his case was pending, J.L.P. alerted police about D.C.'s failure to disclose her HIV status, and she was charged with aggravated assault. J.L.P. was never infected with the virus.
This winter, the Quebec court found J.L.P. guilty of assaulting D.C. and her 18-year old son, but was eventually given an absolute discharge with no criminal record.
The Quebec Coalition of AIDS organizations was disappointed by the case's outcome.
The onus was on J.L.P. to protect himself and practise safe sex, said spokesman Ken Monteith.
The situation would have been different if D.C. had repeatedly had unprotected sex with J.L.P. without telling him, he said.
D.C. has been HIV positive since 1991. She contracted the human immunodeficiency virus from her ex-husband.

France: Man sentenced to five years for alleged transmission during one-off unprotected sex encounter in 1999

A 40 year old man has been found guilty of administering a harmful substance to one's spouse or common law husband/wife with the consequence of lifelong impairment ("administration de substance nuisible par conjoint ou concubin ayant entraîné une infirmité permanente") for not disclosing his HIV status to a former partner in 1999, who subsequently was also diagnosed HIV-positive.

The Assize Court of the Lower Rhine in Strasbourg sentenced him to five years imprisonment, of which two years are suspended. The attorney general had requested five years in prison. The fact that the man was the longtime companion of the complainant during the commission of the 'crime' is an aggravating factor in French law that increases the maximum penalty from 10 to 15 years' imprisonment.

This also explains his appearance before the Assize Court (Cour d'assises) which is reserved for trials for more serious crimes.

I was alerted to the case  by a blog reader, details of which are available in French only via two stories on Le Figaro posted last Thursday and Friday. 

What is unusual about the reporting in this case is that both complainant – Magali Gillmann – and accused – Emmanuel Baudard – were named in the Thursday story in Le Figaro.  This is the first time I have ever seen a complainant named (other than police officers assaulted via saliva or bite in the United States.)

Another unusual aspect of the case is that Ms Gillmann, 38, testified that she only had unprotected intercourse once with the accused, in October 1999. She says she fell ill two months later but it was not until 2006 that she learned that the accused knew his HIV status during the time of their relationship, which ended in 2003, and which led her to complain to the police.

Mr Baudard says he was infected during his military service in 1988-1989, but only began antiretroviral therapy in 2008. He admitted having known his HIV status at the time of the unprotected encounter but said he believed that was Ms Gillmann also HIV-positive because both were injecting drug users at the time and because she agreed to unprotected sex.

This does beg the question of whether the prosecution was able to prove a cause-effect relationship between Mr Baudard's behaviour and Ms Gillmann's infection.  There is no apparent use of phyogenentics which could rule out that their viruses are linked, or to suggest a linkage.

Her diagnosis two months following the single episode of unprotected sex - which, on average, carries a very low transmssion risk of 1-in-1250 – could be purely coincidental, and she may well have acquired HIV via needle sharing or from another sexual partner.  Neither appear to have been used as a defence in the case which appears to have focused solely on Mr Baudard's responsibility to disclose his HIV-positive status prior to a single instance of unprotected sex and highlights difficulties with disclosure.

The discussions highlighted the difficulties Thursday, leading the jury to consider the intimacy of the relationship of two partners who now hold conflicting versions.

The complainant said she always had safer sex with Mr. Baudard, except once, when he assured her that she had nothing to fear.

The accused acknowledged he knew he was carrying the AIDS virus, and claimed to have infected his girlfriend due to a misunderstanding, and cowardice. "I told her I could not do it without a condom, she said 'OK', and we did. For me, it meant she was [HIV-positive] like me," he told the court.

"You're too optimistic," said his lawyer Herve Begeot. "Why were you not more explicit, why not clearly tell the victim you were HIV positive?" "I ran out of courage," said Mr. Baudard.

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

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

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

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

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

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

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

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

US: Michigan woman gets 11 months for non-disclosure

A 54-year-old woman has been sentenced to 11 months in prison to failing to inform her male sex partner that she was HIV positive under Michigan's disclosure laws.

Todd Heywood of the Michigan Messenger covers the case in two reports covering her March arrest and her sentencing following her 'no contest' plea.

She is accused of failing to tell a 45-year-old Traverse City man that she was HIV-positive before engaging in sex with him. Police say she had sex with him six times June 2009 and January [2010]... [She] told the court she had recently moved to Michigan, and owned nothing, “just my clothes.”... She told the court she was a recovering cocaine and alcohol addict, and had moved to Michigan from Florida.... 

[Earlier this week, she] pleaded no contest to failing to inform her male sex partner that she was HIV positive. She has been sentenced to 11 months in jail, inpatient drug rehabilitation and five years of probation by an Isabella County Circuit Court Judge. While the woman’s viral load and other factors determining the infectiousness of her virus were not disclosed, or discussed, Judge Mark Duthie called her behavior “reckless and dangerous,” reports the Mt. Pleasant Sun.... 

She has pleaded no contest on similar charges in Clare county stemming from the same relationship with the Traverse City man. She is expected to be sentenced in that case next month. The woman’s male partner did not attend the Isabella County sentencing of the woman. “He’s embarrassed to have his name on the charge,” Chief Assistant Isabella County Prosecutor Risa Scully told the Sun.

 Todd also very helpully highlights myriad problems with Michigan law as it currently stands.

Michigan disclosure law is considered “overly broad,” and “open for abuse” by experts. Under the law, before any penetration “however slight” occurs, an HIV-positive person must disclose their HIV status to a partner. The law does not criminalize the sharing of needles, which is a well known mode of transmission for HIV, however, it does criminalize sex toy use without a disclosure. The Centers for Disease Control and Prevention in Atlanta has never identified a case of HIV where the virus was transmitted by a sex toy.

Michigan is one of 32 states with an HIV-specific criminal law. Most of the laws were passed in the late 80s and early 90s, before the discovery of powerful anti-retroviral medications which dramatically decrease the progression of HIV infection. In July, President Barack Obama issued the nation’s first National HIV/AIDS Strategy and part of the strategy includes reviewing and repealing the HIV-specific criminal laws because “the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment.”

Canada: 2 cases - Alberta man gets three years for non-disclosure; woman refugee arrested and charged in Ontario

A 44 year-old man from Edmonton, Alberta who pleaded guilty to aggravated assault for not disclosing that he was HIV-positive during a one-off consensual encounter with a woman – whilst his viral load was undetectable – has been has been sentenced to three years in prison.

According to the Toronto Sun report, he had been charged with aggravated sexual assault but was "allowed to plead guilty to the lesser offence of aggravated assault."  The report doesn't mention it, but obviously the woman did not test HIV-positive given the insignificant risk of transmission.

Apparently, the man's roommates turned him in.

Prosecutor Avril Herron told court Gilbertson was arrested June 3 after police were called by his roommates, who had come home and found him having sex with the woman and were concerned about his HIV status. Herron said the woman was drunk and initially found passed out and had some problems telling police the details of what exactly had happened.

In words that parallel Nadja Benaissa's recent statement to a Darmstadt court, he told the court that he had "made a bad choice," but said "in no way was it deliberate."

The provincial court judge questioned Gilbertson's guilty plea after he said he didn't mean to do it. However, he admitted he did not tell the woman he was HIV-positive. Gilbertson also told the judge he takes medications for the disease, which he claimed is barely detectable on tests, and said he has a full support team in the community looking out for his needs.

Judge Marilena Carminati appeared to have no sympathy for the man (nor a finer understanding of the impact of treatment on infectiousness – although perhaps a better lawyer would have helped), and as well as sentencing him to three years in prison ordered him to submit a DNA sample for the national DNA databank and, bizarrely, prohibited him from possessing weapons for life.


Meanwhile, a 32 year-old woman of Zimbabwean origin was arrested in Brampton, Ontario on August 10th for allegedly not disclosing that she was HIV-positive "with at least one sex partner on more than one occasion" during sex with a man who has since tested HIV-negative.

Details are sketchy, and oddly, the case only appears to have been reported on New Zimbabwe.com, a UK-based paper for the Zimbabwean diaspora.  The report states that that woman "arrived in Canada from Indianapolis, United States, as a refugee in 2008" but doesn't say when she left Zimbabwe (or why). 

The woman will face aggravated assault charges on September 13th at Toronto College Park courts and is currently out on "stringent bail conditions" that mean she is currently under house arrest.

Texas: Another 'deadly weapon' HIV exposure conviction: 15 years for one-off sexual encounter

A 26 year-old man from the small Texan town of Copperas Cove has been sentenced to 15 years in prison with an additional $3000 fine after pleading guilty to charges of aggravated assault with a deadly weapon.

The aggravated assault? Having one-time consensual unprotected sex with a 16 year-old male after the two met on Grindr.  The deadly weapon?  HIV, of course.

The details of the man's arrest, including a link to a photocopy of the affadavit of charges, were first published last November on the website of a local TV news station. 

The victim learned through another "Grinder" user that [the man] claimed to be HIV-positive. Police say [he] admitted that he was HIV positive during an interview with investigators. According to the affidavit, [he] did not inform his victim that he was HIV-positive.

Yesterday the local TV news station reported on the 15 year sentence handed down by the 52nd District Court noting that the man had previously pleaded guilty as charged in June.

In March 2010, similar charges were laid against another HIV-positive man in another part of Texas for sex with a 15 year-old male under similar circumstances.  The rather balanced Houston Chronicle article reporting these charges also referred to this case and pitches prosecutor David Castillo against Catherine Hanssens, executive director of the New York-based Center for HIV Law and Policy.

Prosecutors in Gatesville are trying the same tactic after similar allegations against another man surfaced last year. Coryell County District Attorney David Castillo plans to prosecute [name of man] in May. [The man], 26, is accused of sexually assaulting a 16-year-old boy he met on the Internet last year. Castillo said he believes [the man] has HIV and plans to prosecute him, regardless of whether the boy contracted it. “You can fire a gun at someone and miss, and it's still aggravated assault with a deadly weapon,” Castillo said.

The analogy is a poor one, said Catherine Hanssens, executive director of the New York-based Center for HIV Law and Policy, because it overestimates how easily HIV is spread and stigmatizes those with the virus. “HIV should not be an aggravating factor unless there's some evidence that he intended to do some harm and did some harm,” Hanssens said. “Criminal law in every state is adequate to deal with it. But to treat it as evidence of guilt and a deadly weapon wasn't appropriate in 1985, and it isn't appropriate now.”

In more than 20 years of advocacy, Hanssens said she had seen dozens of charges involving defendants with HIV, some arising from charges involving biting and spitting. Hanssens said charges alleging a “deadly weapon” arise from an infected person's knowledge that they have the virus. She blasted prosecutors and public officials for not considering the deeper ramifications of calling HIV a deadly weapon.

“To refer to HIV as a deadly weapon in 2010 speaks of just unforgivable ignorance,” Hanssens said.

Contrast Ms Hanssen's point of view with a blog posting by Houston criminal defence lawyer John Floyd, who discusses both cases and opinions in the above article, in a post entitled, Is HIV a Deadly Weapon?

HIV infected individuals who knowing have unprotected sex with sex partners without informing them of their infection are potential “serial killers.” It is impossible for the infected individual to know who or how many of their sex partners will contract HIV and die as a result of the exposure. No one should be exposed to such potentially fatal risks simply because someone is not responsible enough to fully disclose that he/she has a potentially contagious disease.

With defence lawyers like him, who needs prosecutors?
  
Of note, the age of consent in Texas is 17, and yet charges of "statutory rape" were not laid, even though the same outcome could have been obtained (Sex with a minor is a second degree felony, punishable by two to twenty years in prison and a fine of up to $10,000.00) without these ridiculous and stigmatising 'deadly weapon' charges. 

Last November in Michigan – a state not known for its enlightened treatment of people with HIV given the (now dropped) terrorism charges against an HIV-positive man who allegedly bit a neighbour in self-defence – a 21-year-old man who pleaded guilty under the state's HIV disclosure law to having unprotected sex during a one-night stand with a 16 year-old girl without first disclosing that he was HIV-positive was  jailed for nine months. The age of consent in Michigan is 16, so this was not statutory rape.

US: Maryland man gets five years for unintentionally spitting on cop

A 44 year-old HIV-positive man from Hagerstown, Maryland was found guilty of second-degree assault yesterday for unintentionally spitting on a police officer during his arrest and has been sentenced by Judge Daniel P. Dwyer to five years in prison.

According to the report in The Herald-Mail Jeffrey Lynn Black was being arrested by Officer Richard Cook for vandalism and was drunk at the time. Officer Cook and his colleagues

handcuffed him and were putting him into a squad car when he spit on Cook, the [probable cause] statement said. “He spit and caught me on the side of my face,” Cook testified. “I kind of lost my cool for a bit,” he testified, saying he pushed the side of Black’s face against the trunk of the police car. Officer William Spigler testified he saw Cook “wipe something off his face” and that Black then tried to spit on him. The officers testified they put a “spit sock” over Black’s head to prevent him from spitting on anyone else.

In a 2007 decision by the Ninth US Circuit Court of Appeal, intentionally spitting on someone is "an offensive touching that rises to the level of simple assault,” that can be punished by up to six months in prison. In this case, Mr Black appears to have been charged with second-degree assault soley due to the fact that he is living with HIV. Under Maryland law, a person is guilty of such a charge if they are found to have caused “physical injury” to another person. Physical injury means impairment of physical condition, excluding minor injuries. The maximum prison sentence is ten years and a $2,500 fine.

There is no doubt in my mind that a serious miscarriage of justice took place in Maryland yesterday.

Earlier this month, the National HIV/AIDS Strategy for the United States noted that "since it is now clear that spitting and biting do not pose significant risks for HIV transmission, many believe that it is unfair to single out people with HIV for engaging in these behaviors and should be dealt with in a consistent manner without consideration of HIV status."

Last week, I presented an analysis of all US arrests and prosecutions for HIV exposure or transmission reported on my blog during a two year period, and found ten similar HIV-related spitting cases. In fact a quarter (21 out of 82) of all cases involved spitting, biting or scratching posing no risk of HIV transmission.

[To download an A4 pdf of the analysis, click here]

The study's title, 'Kafkaesque: A critical analysis of US HIV non-disclosure, exposure and transmission cases, 2007-2009' says it all. Kafkasque is an adjective relating to the writings of Franz Kafka and has come to mean the following: having a nightmarishly complex, bizarre, or illogical quality.

What is particularly Kafkaesque about this case is that there were no allegations of intention to infect. Such intent has been used by juries – such as those in Texas – to find individuals living with HIV guilty of attempted murder and other such ridiculous charges.

In his opening statement, Assistant Public Defender Robert Sheehan told the jury that the spitting was not intentional. Black’s wife, Michelle Black, testified that her husband often spits unintentionally because he has no teeth. [...] [Assistant State's Attorney] Wilson told the jury that Black’s actions were a “flagrant violation, not only of the law, but of decency.” It was only when he was being booked that Black told police he was infected with the virus that causes AIDS, Wilson said. [...] Black told the officers he had AIDS out of concern for their well-being, Sheehan told Judge Dwyer before the sentencing. [...] Before he was sentenced, Black, who did not testify during his trial, apologized to Officer Cook, telling him he did not spit on him intentionally.

In addition, the jury was not told why Mr Black was being charged with second-degree assault for spitting, nor were they told why he was arrested in the first place. Nevertheless they took just ten minutes to decide he was guilty.

A Washington County Circuit Court jury took about 10 minutes Monday to convict a Hagerstown man of spitting on a Hagerstown police officer, unaware that the man was HIV-positive. That fact was revealed in court when Judge Daniel P. Dwyer sentenced Jeffrey Lynn Black, 44, of [man's address] to five years in state prison for second-degree assault. [...] Assistant State’s Attorney Brett Wilson said before the trial started that two malicious destruction of property charges against Black were being dismissed. Following a bench conference prior to the trial beginning, Wilson told the officers who were to testify that they could not mention why Black was taken into custody or that he had an infectious disease.

Adding to illogical aspect of the case, Officer Cook erroneously believes that he remains at risk of seroconverting and must be tested for HIV every three months for a year.

“It’s on my mind ... every three months I have to go back and get tested,” said Officer Richard Cook, who told the judge he will have to be tested periodically for at least a year.

Finally, Mr Black's lawyer had asked Judge Dwyer to delay sentencing because his client is “very sick. It’s possible a jail sentence could, for all intents and purposes, be a death sentence,” he said. Judge Dwyer ignored his plea.

Daniel P. Dwyer has been an Associate Judge of the Washington County Circuit Court, in the 4th Judicial Circuit, since April 3, 2009.

“During his many years as a Domestic Relations Master and an attorney, Daniel Dwyer has shown his commitment to treating all parties fairly, and to serving the children and families of Washington County,” said Governor O’Malley. “I am confident that Master Dwyer will be an excellent circuit court judge.”

Judge Dwyer is standing for election on November 2nd for a 15 year term on Washington County Circuit Court. He can be contacted at 240-313-2550.

Austria: Matthew Weait guest blogs on recent mother-to-child transmission conviction of HIV denialist

The recent conviction of Austrian HIV denialist Barbara Seebald for:

1. rejecting taking the prescribed medicine during her pregnancy despite knowing of her HIV infection,
2. giving birth to her child naturally and at home with the help of a midwife who was not informed about her HIV infection despite the former arrangement with the doctors that the birth should be a Caesarean,
3. breastfeeding the newborn and
4. not giving medicine to her daughter

comes at critical time, just before the subject of the criminalisation of HIV exposure and transmission comes under the spotlight at the International AIDS Conference (AIDS 2010) held in Austria's capital Vienna.

Mrs Seebald - whose husband, Leonhard, had been charged as co-conspirator, but who died in May – was given a ten month suspended sentence, which she is currently appealing. Her case received the full UK tabloid treatment in The Sun last Tuesday.

Dr Matthew Weait, Reader in Socio-Legal Studies at Birkbeck College, London, author of Intimacy and Responsibility: The Criminalisation of HIV Transmission, and a member of the Technical Advisory Group of the recently-launched UNDP/UNAIDS Global Commission on HIV and the Law, has provided me with a thought-provoking analysis of the case that I'm posting in full below.

Denialism and Criminalisation

by Matthew Weait

The recent Seebald case in Austria raises a number of thorny questions for those opposed to the criminalisation of HIV exposure and transmission. These are my initial thoughts.

Why do we punish? Among the reasons are to make a moral example (a retributive justification), or to deter the defendant and others (an instrumental justification). If we subscribe to a retributive justification, then the defendant needs to be morally blameworthy – not just generally, but in respect of the particular conduct they have engaged in. Such blameworthiness will typically be because they intended the harm that was committed, because they took an unjustifiable risk, or because (more rarely) they were grossly negligent. As a matter of general principle, retribution requires moral fault on the part of the defendant, in the sense that they (not some hypothetical person) knew that they were at fault and were acting wrongly. If we subscribe to a more instrumental justification – and are more concerned with the effects of a person’s conduct than with their moral fault – we may be satisfied with a criminal law that takes an objective approach. In other words, would a reasonable person have done this? Would a reasonable person have been aware of the risk?

Someone who fails to take precautions against the onward transmission of HIV and / or who transmits HIV to another but who honestly believes that HIV does not cause AIDS, or who denies the relevance and / or meaning of HIV infection, cannot, according to a purely retributive approach, be legitimately punished. The honest belief negates their fault. Very few criminal law systems subscribe to such an approach, because there is always a social or public interest in harmful, or potentially harmful behaviour. More typically there needs to be a threshold moral fault, coupled with an objective (public interest) test.

The question raised by the Seebald case, then, is whether a person who honestly holds a denialist position may legitimately be punished where they infect another person with HIV, or expose them to the risk of HIV infection?

From a purely legal perspective, in the context of Austrian criminal law, the answer is yes. The Austrian penal code criminalises both intentional and negligent exposure and transmission. Put simply, its concern is not so much with the moral blameworthiness of the defendant as in the protection of the interests of others. There is however, a more general question as to whether the Austrian approach, and that of other countries which have similar laws, is justifiable.

My own answer is no, for the following reasons.

First, I believe that the criminalisation of non-intentional HIV transmission and exposure is unjustifiable on public health grounds, as well as being morally suspect. There is widespread international agreement on this point, the reasons articulated in a number of well-informed, thoughtful and coherently argued interventions. It follows that someone who honestly (even if misguidedly) denies the relationship between HIV and AIDS cannot legitimately be punished for onward transmission of HIV, unless one takes the view that such honest belief is to be ignored. And if we ignore it, then we fail to take seriously the reasons - whatever those might be – for denialism. These might be grounded in a person’s particular life story; or they might result from misinformation or misunderstanding. Whatever its cause, and however difficult it might be to understand that denialism or to sympathise with it, our incomprehension cannot be a sufficient justification for criminalisation and punishment. Put another way, a general opposition to criminalisation of non-intentional exposure and transmission cannot be displaced by conduct whose roots lie in ignorance. Doing otherwise effectively makes a failure to accept what most other people believe a sufficient justification for punishment, and that has a frighteningly totalitarian ring to it.

More generally, it seems to me that the criminalisation and punishment of a denialist – apart from the immediate impact on her or his personal and domestic life – displaces the more important issues (a) of systemic failures in HIV/AIDS education, and (b) of the effects of HIV-related stigma and prejudice. If we criminalise people who hold beliefs that the majority do not share, we risk reducing larger, structural, general problems to the level of the particular, the individual and exceptional. This will get us nowhere fast, and simply provides further opportunities for human interest-driven, and scandal-hungry media to demonise and reinforce negative images of people living with HIV.

We must resist the framing of events and episodes such as those represented by the Seebald case as a criminal law problem. If we do this, we necessarily imply that there is a criminal law solution – or, more strongly, that only a criminal law solution is needed. This is both wrong-headed and dangerous. The problem is far more complex, and requires a far more nuanced, sensitive and humane response – one that understands, acknowledges and addresses the reasons for a person’s denialism position rather than simply punishing them for it.

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.