Canada: Supreme Court decisions increase risk of violence, coercion & criminalization against women with HIV (Editorial)

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Canada: New documentary, 'Positive Women: Exposing Injustice' has world premiere in Toronto

Last night saw the world premiere of a compelling, heart-wrenchingly moving 45 minute documentary film executive produced by the Canadian HIV/AIDS Legal Network that tells the intimately personal stories of four women living with HIV in Canada. It argues that the current legal situation which criminalises sexual behaviour between consenting adults and discriminates against those living with HIV is irrational, ineffective and unjust.

Positive Women: Exposing Injustice features four courageous positive women bravely speaking from the heart on this important issue:

• Diane, from Quebec (the defendant in the Supreme Court case R v DC) who was charged for not telling her partner that she had HIV at the beginning of an ultimately abusive relationship;
• Jessica, a young woman who chose not to pursue charges against the man who infected her, and who has some of the best lines in the film (she calls disclosing her HIV-positive status, "dropping the H-bomb"!);
• Lynn, an Aboriginal woman who has personally faced extreme stigma and violence due to her HIV-positive status; and
• Claudia, a Latina woman who describes the challenges of disclosure and intimate relationships for women living with HIV. 

Legal experts, doctors, counsellors and support workers also appear in the film to complement the women's stories and to challenge current Canadian legal practice that is oppressing the very women they are meant to protect. Anyone who believes that HIV criminalisation protects women needs to see this film.

It will next be screened in Washington DC at the International AIDS Conference on Thursday July 26th in the Global Village Screening Room from 18:00-19:00.  The screening will be followed by a question and answer session.

For more information about the documentary, which was produced and directed by Alison Duke, visit http://www.positivewomenthemovie.org/index.html

Greece: Matthew Weait on the moral panic over the mass arrest of female sex workers with HIV

Matthew Weait, Professor of Law and Policy at Birkbeck College, University of London guest blogs on Wednesday's arrest of 17 HIV-positive women who allegedly worked illegally as sex workers.  Greek authorities are accusing them of intentionally causing serious bodily harm. 
 
The arrest in Athens of 17 female sex workers living with HIV this week is outrageous on many levels. It is not that a significant number of them have had their right to respect for private life violated (12 had their photographs published on a police website), nor that there is uncertainty as to whether the women concerned knew their HIV status, nor that the women were arrested after a screening process by the Greek Centre for Disease Control (how voluntary was that, I wonder?), nor that they have been charged with intentionally causing grievous bodily harm (a charge almost impossible to prove, and on the facts arising simply from having unprotected sex with clients – according to news reports it is unclear whether any clients have actually been infected as a result of sex with the women concerned). All these things are bad enough, but what is really appalling is the way in which it is the women who have been identified as the legitimate locus of control and the subject of punitive state response.

It is appalling, but it is entirely to be expected. There is a long and ignoble tradition of locating the source of STIs in women in general, and female sex workers in particular. In the context of HIV criminalization this tradition has reached a new peak (or, perhaps better, a new trough). Put simply, HIV criminalization has compounded, and added a new and frightening dimension to, the longstanding idea that female sex workers are a source of pollution threatening the cleanliness of men. It is not just that by identifying them as the risk and the cause of any harm men may suffer, the men concerned (and men in general) are able to divert attention from their own responsibility (though this is important), it is that criminalization has provided an opportunity, in this context, to reinforce the idea that women are inherently dirty, that HIV is dirty, and that cleansing (what a frightening word that is) through punishment, containment and deportation (the women in Athens were foreign nationals) is a reasonable and justifiable response.

Of this logic we should be very afraid. The elimination of dirt at a political level has found expression, at its most extreme, in the slaughter of the Jews by the Nazis, in the apartheid regime of South Africa, in eugenic science and rules relating to miscegenation. It is evident in any attempt by a society to maintain its ‘purity’ by imposing border controls that require would-be immigrants to undergo tests that filter out the sick and unhealthy.

At an individual level, the elimination or exclusion of dirt – or rather the practices, attitudes and response mechanisms that attempt to achieve this (prosecution, imprisonment, deportation) mirror a wider political project in which the HIV positive body is punished, marginalised and devalued because it represents everything that is feared in post-modernity. The HIV positive body is a paradigm site for repressive legal and political response because of its capacity to reproduce itself in the body of those for whom it represents a threat to physical and ontological security, and because that reproduction occurs – and can only occur – through the merging of bodies via the co-mingling of their ‘inside’. Elizabeth Grosz, an Australian feminist theorist has put this better than anyone else when she explains that:

Body fluids attest to the permeability of the body, its necessary dependence on an outside, its liability to collapse into this outside (this is what death implies), to the perilous divisions between the body’s inside and its outside. They affront a subject’s aspiration toward autonomy and self-identity. They attest to a certain irreducible ‘dirt’ or ‘disgust’, a horror of the unknown or the unspecifiable that permeates, lingers, and at times leaks out of the body, a testimony to the fraudulence or impossibility of the ‘clean’ and ‘proper’. (Grosz, 1994: 193-4)

For Grosz, it is women’s bodies, their unstable and destabilizing corporeality, that serve both to affirm men’s belief in their own inviolability and, thus, the bounded body (i.e. male bodies) as the normal, universal and legitimate form of subjectivity. The seminal flows that emit from male bodies, reduced to a by-product of sexual pleasure rather than conceived as a manifestation of immanent materiality, and as something that is directed, linear and non-reciprocal, enables men to sustain the fantasy of the closed body and of the possibility of control over it. The socio-cultural and psychological dimension of Mackinnon’s (in)famous assertion about the power necessarily instantiated in heterosexual relations (‘Man fucks woman: subject verb object’ (Mackinnon, 1982: 541), this fantasy is a prerequisite for the maintenance of masculinity, and of the mastery – over women, over nature – that masculinity enables, or which is its prerogative.

To receive flow, or to be in position where there is a risk of flow in the other direction, is to be identified with the feminine (whether as woman, or as passive homosexual) and to lose the phallic advantage; to acknowledge the essential materiality of the body, that its flows are not merely by-products of the body but constitutive of it, is an admission that strikes at the heart of masculinity, at the security which is its privilege, and at the legitimacy of the hierarchised and gendered socio-economic order upon which its privileged status depends. Understood in these terms, it is unsurprising that it is women’s bodies (despite the relatively low risk of female to male sexual transmission) that are – within the discourse that frames the heterosexual HIV epidemic– characterised as the source of infection. As Grosz explains, this discourse is one that makes

… women, in line with the conventions and practices associated with contraceptive procedures, the guardians of the sexual fluids of both men and women. Men seem to refuse to believe that their body fluids are the ‘contaminants’. It must be women who are the contaminants. Yet, paradoxically, the distinction between a ‘clean’ woman and an ‘unclean’ one does not come from any presumption about the inherent polluting properties of the self-enclosure of female sexuality, as one might presume, but is a function of the quantity, and to a lesser extent the quality, of the men she has already been with. So she is in fact regarded as a kind of sponge or conduit of other men’s ‘dirt’. (Grosz, 1994: 197)

 Given Grosz’s analysis it is hardly unsurprising that the Centre for Disease Control in Greece had 1500 calls from concerned men once the story about the brothels broke. Far from accepting any responsibility they might have for having sex which carried the risk of STI and HIV infection, it was entirely to be expected that their concern was whether the women might have infected them, and that the legal response was to round up the women. Patriarchy is, after all, a Greek word.

The response of the Greek health Minister, Andreas Leverdos, prompted in part by a massive rise in HIV infections in Greece in recent months (954 new infections were reported in 2011, a 57 percent increase from the previous year), and also – surely – by the political value in deporting non-nationals at a time when Greece is in economic meltdown, was to suggest criminalizing unprotected sex in brothels. He is reported as saying,

 Let’s make this a crime. It’s not all the fault of the illegally procured woman, it’s 50 percent her fault and 50 percent that of the client, perhaps more because he is paying the money. 

On the face of it this response suggests some recognition of shared responsibility. However, it is a pipe-dream – I suggest – to imagine that doing this (even if it were politically viable, which I doubt) would have the effect of eradicating the deeply entrenched view that female sex workers are to blame for their clients ills; nor is criminalization of sexual behaviour that carries the risk of HIV infection a productive or constructive answer to anything. It would simply perpetuate the idea that punitive laws are an appropriate response to what is properly understood as a public health issue that should be addressed through wider awareness, education and an affirmation of the importance of taking care of, and respecting, ourselves and others.

(Reposted from Matthew Weait's own blog, 'The Times That Belong To Us' with kind permission. You can also follow Matthew on Twitter @ProfWetpaint)

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 …

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'.

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.

US: Dying daughter released from Florida jail following spitting conviction - UPDATE

Update: January 5 2011

The Bilerico Project reports today that

The Florida Parole Board met in an emergency meeting this morning to hear Betsie's case. The board approved a conditional medical release in a 2 to 1 vote; Betsie is being released to a Miami hospice to live out her final weeks of life surrounded by her family.

Original post: December 24 2010
As we focus on friends and family over the Holiday period, spare a thought for the many people with HIV in prison convicted of 'crimes' that harmed no-one except themselves.

In particular think of Betsie Gallardo, 27 – convicted in 2008 of battery on an officer and resisting arrest and sentenced to five years in prison because she is HIV-positive and spit on a police officer during a traffic accident investigation – who is dying of cancer. (Her case went unreported at the time, suggesting that such heinous miscarriages of justice are even more prevalent than we currently think.)

Her mother, Jessica Bussert, writes on the Bilerico blog

Betsie has been sentenced to die in prison. Why? Because she was born with AIDS and spit on a cop. It was definitely a stupid action, but was it one that warranted that she should die locked up, alone, and away from her family?

The case is being championed by Bilerico's Bil Browning and Michigan Messenger's Todd Heywood.

Bil includes many details of Betsie's heart-breaking case, including the full letter from her mother, and information on how to help.  His call to action is one that I hope my blog readers will follow:

Please take a moment to share this post on Facebook, tweet it, e-mail it or just spread it around via word of mouth. And when you've done that, do the most important part - contact the Executive Clemency Commission with the information below.

NOTE: When calling the four members of the Executive Clemency Commission, please reference the following:
Inmate Name: Betsie Gallardo at Broward Correctional Institution
Inmate DC#: Y42277

Please tell them: "It is already a crime that Betsy has spent time in jail for HIV-stigma and discrimination. I urge Florida's Executive Clemency Commission to grant Betsy Gallardo a medical clemency to allow her to go home to her family and die with dignity and respect.

US-based readers: please also sign this petition at change.org

Canada: Civil HIV exposure case over consensual lesbian sex in jail - analysis

Last week, a woman in Kamloops, BC, arrested for drunkenness and who subsequently engaged in consensual lesbian sex with a fellow prisoner (revealed 10 days later as being HIV-positive) – and who were watched by seven members of the Royal Canadian Mountain Police – filed a lawsuit in the British Columbia Supreme Court seeking damages from the provincial and federal governments, the City of Kamloops, the seven policemen and the woman with HIV.

Now, journalist Shawn Syms has written a great analysis of the case for Xtra West.  Highlights below and full text at Xtra.ca.

Describing herself as "horrified and scared and mad," the woman told the Kamloops Daily News that she feared for her health: "It was the worst thing in the world that could have possibly happened to me. Every day is a struggle."

Her legal advisor, Victoria personal-injury lawyer Erik Magraken, told the paper, "This is all about the duty to protect. If the RCMP has someone in their custody, they have a duty to protect that individual from harm. If harm comes from ignoring that duty, damages can follow."

According to Cecile Kazatchkine, senior policy analyst with the Canadian HIV/AIDS Legal Network, this is the first time to her knowledge that HIV non-disclosure has been implicated in a legal case involving lesbian sex.

Contacted by Xtra, Magraken refused to specify if the harm he was referring to is, in fact, HIV. He says he's speaking "very generally" to the notion of "any kind of harm." But according to the Daily News, Magraken did argue that "if they fail to disclose they have HIV, that is an aggravated assault and there can be no consent in those circumstances."

Well yes, criminal charges have been been laid on that basis more than once, but what's been affirmed by the courts is slightly different. To date, we know that HIV disclosure is required in instances where there is actually a serious risk of grevious bodily harm. (BC Crown spokesperson Neil MacKenzie told Xtra the police have submitted an investigative file on the case, but there has been no decision yet as to whether any charges will be laid, or against whom.)

The thing is, there's a difference between serious risk and virtually no risk. Health Canada describes the risk of woman-to-woman HIV transmission as "unlikely," and after more than two decades of tracking, the Centres for Disease Control in the US have no confirmed cases of lesbian HIV transmission in their databases.

Lesbian AIDS advocate Cindy Patton famously encapsulated safer-sex strategies back in the 1980s in this way: "Don't get semen in your anus or vagina." Since neither woman in this case has been identified as trans, we can probably assume that this risk did not come into play.

The case "shows how much fear, prejudice and ignorance around HIV and the risks of transmission can easily divert people's attention from what really matters - the issue of people's security and privacy while in custody," says Kazatchkine.

She points to a BC Supreme Court case from 2003 where a woman was awarded $15,000 in damages after being stuck with a syringe in a cab in Vancouver's Downtown Eastside. In that case, the plaintiff claimed she was plagued with fear of becoming HIV-positive for seven years after the incident, which is not medically plausible unless she subsequently got HIV from some other activity.

[...]

We can be fairly certain no HIV was transmitted in the jail cell that night. If the RCMP's original account is any indication, it appears two people who were equally willing - and equally intoxicated - engaged in erotic play, that neither took undue advantage of the other, and no one was genuinely placed at significant risk of any harm as a result of their tryst.

South Korea: Court refuses arrest warrant for teenage sex worker alleged to have exposed 20 men without disclosure

A 19 year-old female sex worker from the southern port of Busan was picked up by South Korean police last week after her father alleged she had unprotected sex with up to 20 male clients since testing HIV-positive in February.

However, according to an AFP report in The Straits Times

the court in Busan rejected a request from police to issue an arrest warrant for the woman, saying she should instead be sent to hospital for treatment.

A second report, from Asiaone.com notes that the young woman

reportedly said she suggested using contraceptives but her male partners refused to do so.

Of note, South Korea has no HIV-specific criminal laws.

In 2009 a 26-year-old HIV-positive man became the first person prosecuted under the country's public health laws for having unprotected sex without first disclosing his HIV status. The man reportedly had sex with at least ten women. He received an 18-month prison sentence. The case occasioned calls for tougher laws for such conduct.

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.

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.

US: Indiana teenager arrested for non-disclosure

A 19 year-old girl from Frankfort, Indiana has been arrested and held in the county jail because a 22 year-old man she met on MySpace claims he had unprotected sex with her last month and that she did not tell him she was HIV-positive until she knew him a little bit better.

A Clinton County teenager is accused of lying about having HIV to someone with whom she had unprotected sexual intercourse on numerous occasions. [Name of girl], 19, of Frankfort was charged Friday with four counts of violation or failure of carrier's duty to warn persons at risk -- a Class D felony because investigators believe the nondisclosure was intentional. The offense begins as a Class B misdemeanor.

"They have a duty under Indiana law, anytime they are going to engage in high-risk sexual activity" to tell their partners, Clinton County Prosecutor Tony Sommer said. In Indiana, communicable diseases that must be disclosed are AIDS, HIV and hepatitis B. [Name] was being held Tuesday afternoon on a $2,800 cash bond in the Clinton County Jail, jail staff said.

Full story – complete with her name, photo and the usual warning about "more victims" from the local prosecutor, Tony Sommer, at jconline.com

I am so incredibly sick and tired of stories like these coming from the United States. Who is the victim here? She now faces up to three years in prison following her trial, tentatively set for Septmeber 14th.

Detectives with the Frankfort Police Department began investigating in early June, after a 22-year-old male said he slept with [name] and that he recently learned [name] has HIV. According to a probable cause affidavit filed with the charges, the man met [name] on the social networking site MySpace on May 26. The 22-year-old told investigators he had heard a rumor that [name] had AIDS or HIV. But after asking her, [name] allegedly lied. The two had sexual intercourse on May 29 and three to four times the following week. The man told investigators he was again told on June 5 that [name] had HIV and confronted her. This time, [name] admitted she has HIV. Sommer said the man was expected to get tested soon.

So, he relies on disclosure to protect himself from HIV, doesn't wear a condom, and then goes running to the police. Come on! Can you imagine how hard it must be for a 19 year-old girl to disclose her HIV-positive status to someone she's only just met, and how easy it must be for a 22 year-old man to take responsibility for himself and wear a condom.

Germany: After Nadja Benaissa, two more women prosecuted for HIV exposure and transmission

Until the very public arrest of German pop singer, Nadja Benaissa in 2009, all of the approximately 20 prosecutions and 15 convictions that had taken place in Germany had involved male defendants. Over the past few months, however two more women have been on trial: one for allegedly exposing her male partner to HIV without disclosing her HIV-positive diagnosis, the other for allegedly transmitting HIV under similar circumstances. Both cases are problematic and cause for great concern.

In Fulda, a small city in the state of Hessen (not far from Darmstadt, where the forthcoming trial of Nadja Benaissa will take place) a 32 year-old mother of two known only as Susan B. was found guilty in March of grievous bodily harm for not disclosing to her 41 year-old ex-partner that she was HIV-positive when they had unprotected sex during the summer of 2008. The partner did not acquire HIV.

According to several reports from the local paper, the Fuldaer Zeitung (here and here), Susan's defence was that her partner had known of her HIV status because her ex huband had told him, and that she had been told by her doctor that she was not infectious because she had been on antiretroviral therapy since 2002.

However, the doctor testified that he had not said she was uninfectious, but maintained there was still a risk of HIV exposure (althoug the report does not say if he quantified that risk to her or in court). And conflicting testimony from the 67 year-old ex-husband and the complainant did not satisfy the court regarding the timing of disclosure.

Consequently, Judge Joachim Becher found Susan guilty of grievous bodily harm, and gave her a 12 month suspended sentence. The prosecutor had asked for 20 months imprisonment. During sentencing Judge Becher noted that the complainant continued to have unprotected sex with Susan following her disclosure (as evidenced by their eight month-old son, who was born HIV free – her seven year-old son with her ex-husband was born with HIV) and "the fact that he continued to have unprotected sex with her shows that he, himself, was very careless," he said. He also acknowledged that she had not intended to harm the complainant.

So, how did this case come to the attention of the police? It appears that Susan has a criminal past, and she had previously been convicted of theft, fraud and grievious bodily harm. One imagines, then, that her HIV-positive status was discovered by the police during an unrelated investigation, and the prosecutor decided to throw the book at her. But surely this case should never have been prosecuted in the first place.

Meanwhile, in Hamburg, Bild and the Hamburger Morgenpost report that a 34 year-old mother of three known only as Doreen G. appeared in a St Georg district court in March accused of not disclosing her HIV status prior to having unprotected sex that apparently resulted in her 30 year-old Togolese ex-partner acquiring HIV.

However, the trial has been suspended due to her counter claims that he actually infected her. The Bild coverage includes speculation and gossip from neighbours claiming that the woman had known her HIV status for ten years. Phylogenetic analysis will help clarify if the complainant - who only tested for the first time after discovering that Doreen was HIV-positive – has a completely unrelated strain. If that's the case, then neither would have infected the other. Proving the timing and direction of transmisison is not possible via phylogenetic analysis, however.

Uganda: 'Human rights will suffer' under new HIV/AIDS law (update)

Update: December 3rd

The United Nations Special Envoy on AIDS in Africa, Elizabeth Mataka – and NGOs that include the Uganda Network on Law, Ethics and HIV/Aids (Uganet) and ActionAID – have added to the many voices urging Uganda to reconsider its proposed HIV and AIDS Prevention and Control Bill.

The Daily Monitor reports that Ms Mataka told journalists in Kampala yesterday:

“I emphasise the importance of creating a bigger and social environment conducive for HIV prevention and to refrain from laws that criminalise the transmission of HIV and stigmatise certain groups in the population. These laws can only fuel the epidemic further and undermine an effective response to HIV."

Dorah Musinguzi, acting Executive Director of Uganet stated:

“We are cognisant of the fact that the draft Bill contains provisions that seek to address the HIV/AIDS pandemic but we need a law on the basis of which rights can be claimed and duties articulated in the context of HIV/AIDS. AIDS is no longer just a disease but a human rights issue. The law should be carefully crafted to find the right balance between promoting the public health while safeguarding and promoting human rights.

Original post: November 6th

A group of more than 50 Ugandan and international organizations and individuals have released a report criticising many of the provisions in the HIV and AIDS Prevention and Control Bill which is on its way to becoming law in Uganda.

A press release from Human Rights Watch (HRW) begins

The report criticizes repressive provisions in the legislation as contrary to the goal of universal access to HIV prevention, care, and treatment. The proposed law includes mandatory testing for HIV and forced disclosure of HIV status. It also criminalizes the willful transmission of HIV, the failure to "observe instructions on prevention and treatment," and misleading statements on preventing or controlling HIV.

Worryingly, the latest version of the bill, released a few days ago, has now a added provision criminalising attempted transmission, which "further opens the door for abusive prosecutions", HRW notes.

However "failure to inform one's sexual partners of HIV status is no longer criminalised" along with the rather interesting provision that would have criminalised "failure to take reasonable steps and precautions to protect oneself from HIV transmission."

Some might argue if criminalisation of HIV exposure or transmission remains in the Bill, why not allow for the prosecution of someone who does not protect oneself from HIV? That way, the law focuses on equal responsibility for HIV transmission/acquisition.

However, in a high prevalence country like Uganda (where an estimated 5.4% of the adult population is living with HIV) this would be unworkable, and would criminalise pretty much everyone who has unprotected sex, or at least is diagnosed HIV-positive - obviously a major backwards move, as this would remove any incentive for testing.

The HRW press release also focuses on the potential for criminalisation of HIV exposure and transmssion to disproportionately affect women, even though many lawmakers believe these laws protect them.

The report also highlighted how laws that criminalize HIV transmission can result in disproportionate prosecution of women because more women are tested as part of pre- or ante-natal medical care and therefore know their HIV status. Women's inability to safely negotiate condom use or disclosure to partners who might have been the source of their infection is not recognized in the bill as defenses against criminal penalties. Women who transmit HIV to their infants after birth via breast milk would also be subject to criminal prosecution, the report says.

"Women and girls have been disproportionately affected by HIV/AIDS," said Joseph Amon, health and human rights director at Human Rights Watch. "My fear is that mandatory testing and disclosure will lead to prosecution and violence instead of treatment and care."

Last month a Ugandan MP introduced a separate Anti-Homosexuality Bill that would impose the death penalty on HIV-positive gay men in Uganda if they have sex with another man.

The proposals have been roundly criticised by pretty much every human rights and HIV organisation in the world.

Global: Ten reasons why criminalisation of HIV exposure or transmission harms women

A new pamphlet released to coincide with World AIDS Day highlights why criminalisation is bad for women and girls, despite policymakers believing they are enacting new HIV-specific laws in order to protect them.

In addition to criminalizing the transmission of HIV, these laws sometimes call for mandatory HIV testing of pregnant women, as well as for non-consensual partner disclosure by healthcare providers; further exacerbating the impact of such legislation on women. The call to apply criminal law to HIV exposure and transmission is often driven by a well-intentioned wish to protect women, and to respond to serious concerns about the ongoing rapid spread of HIV in many countries, coupled with the perceived failure of existing HIV prevention efforts. While these concerns are legitimate and must be urgently addressed, closer analysis reveals that criminalization does not prevent new HIV transmissions or reduce women’s vulnerabilities to HIV. In fact, criminalization harms women, rather than assists them, while negatively impacting on both public health needs and human rights protections. Applying criminal law to HIV exposure is likely to heighten the risk of or transmission does nothing to violence and abuse women face; address the epidemic of gender-strengthen prevailing gendered based violence or the deep economic, inequalities in healthcare and family social, and political inequalities that settings; further promote fear and are at the root of women’s and girls’ stigma; increase women’s risks and disproportionate vulnerability to HIV.

It then details the ten reasons:

1. Women will be deterred from accessing HIV prevention, treatment, and care services, including HIV testing
2. Women are more likely to be blamed for HIV transmission
3. Women will be at greater risk of HIV-related violence and abuse
4. Criminalisation of HIV exposure or transmission does not protect women from coercion or violence
5. Women’s rights to make informed sexual and reproductive choices will be further compromised
6. Women are more likely to be prosecuted
7. Some women might be prosecuted for mother-to-child transmission
8. Women will be more vulnerable to HIV transmission
9. The most ‘vulnerable and marginalized’ women will be most affected
10. Human rights responses to HIV are most effective.

10 Reasons Why Criminalization of HIV Exposure or Transmission Harms Women was drafted by Dr. Johanna Kehler of the AIDS Legal Network, Michaela Clayton of the AIDS & Rights Alliance for Southern Africa, and Tyler Crone of the ATHENA Network.

You can download the pdf of the pamphlet here.

To endorse the document or for more information, please contact:
ATHENA Network: www.athenanetwork.org
AIDS Legal Network: www.aln.org.za
ARASA: www.arasa.info

Canada: Hamilton woman get two years house arrest after pleading guilty to HIV exposure following condom failure (update)

Update: November 21st

Robin Lee St. Clair, a woman who used condoms for her one-night encounter, and who revealed her HIV status when the condom broke to allow the man to access PEP, has been sentenced to two years' house arrest, according to a report in the Toronto Sun.

Robin St. Clair, 28, who pleaded guilty to two counts of sexual assault, cried in court today when she was told she would be registered as a sex offender for life and would be made to provide a DNA sample. [...] She will also be on probation for three years after the house arrest.

I originally thought it was just one count, but no - they had sex twice! With condoms!!

The man had intercourse with St. Clair twice and on the second occasion the condom ripped.

In my original post, below, I had wondered whether the judge, Justice Paul Taylor, might actually be a good guy for considering 'just' a 90 day prison sentence. I'm not sure that two years' house arrest is preferable.

But, actually, Justice Paul Taylor is just as irrational as most of the rest of the criminal justice system when it comes to HIV. His comments – that sex with condoms with someone who knows they are HIV-positive but doesn't tell you is unlawful – are not exactly true to the spirit of the Cuerrier decision.

Criminal law has a role to play when people with HIV put the lives of others at risk. No one would voluntarily get the disease," Taylor said. "(The man) was exposed to a risk he shouldn't have been exposed to. If he was told of her status he would have rejected her, which was his decision to make."

Court heard that the man had a 1-in-2,000 chance of contracting the HIV, but remains disease free.

"To him it is still very real and continues to debilitate him," Taylor said. "The melancholy fact is condoms break."

Taylor said St. Clair's actions weren't calculating so he decided to let her serve the time under house arrest.

"She wasn't seeking out men to expose them to the disease," Taylor said. "But she is not blessed with all the intellectual gifts."

Such comments suggest that Justice Taylor needs to reread Cuerrier and reassess if it really means what he thinks it is saying. Cuerrier established that consent to otherwise consensual sex is invalid if a person living with HIV does not disclose this before engaging in conduct that poses a "significant risk" of HIV transmission. Having sex with condoms - even if they do occasionally break – is not a "sigificant risk". A 1-in-2000 chance of acquiring HIV is not a "significant risk".

Yet the careful use of condoms might be found to so reduce the risk of harm that it could no longer be considered significant

Mr Justice Corey, R v Cuerrier (Supreme Court of Canada, 1998)

This is how people have sex in the real world. Having sex with a condom with someone who is HIV-positive, is safer sex not safe sex. That does not eliminate risk, but it is within the bounds of life's normal risks.

I'm certain that Canadian advocates will be outraged and disappointed with Justice Taylor.

Since Ms St Clair pleaded guilty, there can be no appeal, and this will not create a legal precedent. The lesson to be learned is that people who are charged under Canada's HIV non-disclosure law need good legal advice. If she had pleaded not guilty and this had gone to trial, she would have been found innocent.

However, what Canada really needs is prosecutorial guidelines like those produced in England & Wales, that set out where the Crown should prosecute based on current law. This case should never have been prosecuted in the first place.

Original post: September 17th

Is the tide finally turning?

Following yesterday's revelation that a US judge has reduced the sentence for non-disclosure during a one-night stand from 25 years in prison to five year's probation, a judge in Toronto is debating whether to sentence a 28 year-old woman from Hamilton, Ontario to 90 days in prison or give her a conditional discharge for the same 'crime'.

Robin Lee St. Clair pleaded guilty in June to two counts of aggravated sexual assault for not disclosing her HIV status to a man she met for a one-night stand in 2007. (At least this was only charged as aggravated sexual assault; two men currently face attempted murder charges for exactly the same 'crime')

Now, the Toronto Sun reports what happened during her sentencing hearing before Ontario Court Justice Paul Taylor earlier this week. In the article, commentator/journalist Michele Mandel writes:

Should the Hamilton woman be sent to jail for having sex with a Toronto man without telling him she has HIV? Or has the 28-year-old already paid her debt to society -- her photo plastered on the front page of her local newspaper, she and her son kicked out of the community pool? Is she a criminal or just a coward afraid to divulge her terrible secret as she looked for love? Should she be punished? Or rehabilitated? It depends on which side of the Finch Ave. courtroom you sat on yesterday.

She then highlights, as I did in my previous blog posting on this case, that despite the police claiming she posed a "huge threat", only on complainant has ever appeared.

BROKEN CONDOM

The article also explains, for the first time, what happened between Ms St. Clair and the complainant. It seems that Ms St. Clair did disclose her HIV status to the man - but after the condom they were using broke. This is what all responsible HIV-positive individuals should do in such a situation, so that the HIV-negative individual can access PEP. But rather than thank her for the information, the man ran to the police.

The most worrying thing about this case is the fact that the Crown decided to prosecute, despite this man being the only complaint.

Crown Tim Morgan asked the judge to send the single mom to jail for 90 days as both "deterrence and denunciation" of her exposing her victim to possible infection without his consent. The fact that she insisted on a condom doesn't mitigate what she did, the prosecutor added. "It's not good enough -- in fact, it's criminal -- to just use a condom and be absolved of your responsibility. You have to disclose."

Mr Morgan is dead wrong, but it seems that Justice Taylor did not pick up on the difficulties with the law around issues of HIV disclosure and "significant risk". This issue - whether HIV-positive Canadians must disclose prior to sex even with a condom - has not yet been decided by the Supreme Court, but it is not definitively considered to be "criminal", as he asserts.

Writing in the May 2009 issue of HIV/AIDS Policy & Law Review 14(1), the Canadian HIV/AIDS Legal Network's Alison Symington notes:

The majority judgment was clearly not imposing a blanket obligation on persons living with HIV to disclose their status in every sexual encounter. What was not clear is where the line would be drawn between activities requiring disclosure and those not requiring disclosure. For example, Justice Cory [writing for the majority in the Cuerrier decision] contemplated that disclosure might not be required with respect to intercourse for which a condom was used, but did not make an explicit ruling on the issue.

Ms St. Clair's lawyer, Kim Edward, argued that the prefered sentence would be a conditional discharge,

insisting her client is a "simple" woman who can neither read nor write very well, a good mother and community volunteer who is educating herself -- better late than never, it seems -- about the moral and legal responsibilities that come with the HIV she has had since 2003. "This is not one of those individuals who is callously and intentionally infecting others," Edward told the court.

IMPACT STATEMENT

I'm always interested in hearing what the impact of having a one-night stand with someone who you discover is HIV-positive must be like. I mean, surely if you are having a one-night stand you must know that there is a chance that the person you are sleeping with will have HIV. At least one-in-four people with HIV don't know they have the virus, so even if they wanted to disclose this before sex, they couldn't.

Ms St. Clair's 'victim' doesn't appear to have considered this; and he wasn't at all grateful that she disclosed following the breakage of the condom, which would have allowed him to seek medical attention to reduce the risk of becoming HIV-positive.

While he remains HIV-negative, he writes in his victim impact statement entered in court yesterday that he is plagued with embarrassment and will never be the same. "I am no longer able to sleep through the night due to anxiety and stress," he wrote. "I am stuck in a box ... I don't care about anything anymore. The year of doing blood work to make sure I was OK has affected me the most. The waiting period of a whole year felt like an eternity to me. Waiting to see if I was affected by the disease has had the most fearful impact on my life. I am still not 100% sure in my mind that I am OK."

I am constantly amazed that people who have been exposed to HIV via, say, a broken condom, or a bite, agonise over their extremely low risk for much longer than is necessary. The latest generation HIV tests can pick up antibodies within ten days, and experts now agree that the 'window period' between infection and detection is less than one month. Why did this man's uncertainty last a year? Is it really Ms. St Clair's fault that this man worries excessively? And what exactly is he embarrassed about? If I were him, I'd be embarrassed that I complained the police about something that was clearly as much his responsibility as Ms St Clair's following the accidental breakage of a condom.

Finally, I must comment on - and protest - the language used by Ms Mandel in the article, who uses the usual 'deadly weapon' cliché to describe a consensual sexual act between two adults.

[Ms St Clair is] like a woman who has played Russian roulette with at least one man's life...she carries a weapon as lethal as any gun.

Robin Lee St. Clair will finally learn her fate on October 28th.