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Canada: Ontario Superior court dismisses bid to re-open aggravated sexual assault conviction for alleged HIV non-disclosure

ONTARIO: HIV sex assault sentencing to go ahead, judge rules
June 21, 2018

ONTARIO: HIV sex assault sentencing to go ahead, judge rules

 

The case centred around the issue of significant risk of bodily harm and whether there was a realistic possibility of transmission.

SAULT STE. MARIE — Superior Court Justice Edward Gareau has nixed a local man’s bid to have his conviction on three counts of aggravated sexual assault re-opened so the court could hear further expert evidence on HIV transmission.

The judge dismissed Nicholas Goodchild’s application Tuesday morning — the day after he heard from the proposed witness, a Manitoba physician qualified by the court as an expert on the risk transmission of HIV, and listened to the legal arguments made by the Crown and defence.

“I spent all evening reflecting on it,” he said, before indicating he believes the proposed new evidence doesn’t meet the high threshold of the cogency test for such applications.

Gareau said he will provide full reasons for his decision at a later time.

Goodchild will return to court Wednesday so that a date can be set for sentencing.

“This has not been an easy case, from start to finish, and it’s just getting harder as we go along,” Gareau told the lawyers Monday after they completed their submissions to the court.

 He then said he might be able to tell them his decision, maybe without reasons, on Tuesday.

Gareau found the young man guilty of the charges for not disclosing his HIV-positive status to three sexual partners — two of whom he met through an online dating site — in November.

The convictions followed a seven-day trial that took place last summer.

During the trial, three women, whose identities are protected by a publication ban, testified that they had sexual relations with Goodchild between July 2013 and April  2014. 

The case centred around the issue of significant risk of bodily harm and whether there was a realistic possibility of transmission.

Goodchild was slated to be sentenced March 26, but the hearing was adjourned because a court-ordered report wasn’t ready.

It was scheduled for May 14, and it was then that Goodchild brought the application to re-open his conviction so that he could call  “new evidence.”

On that date, after hearing submissions from assistant Crown attorney Dana Peterson and defence lawyer Michael Lacy, the judge decided to hear the application this week.

Published in BarrieToday.com on June 20, 2018

HIV positive man who didn’t tell partners wants conviction reopened

His lawyer says he wants a judge to hear fresh evidence

 

June 19, 2018

A local man wants the judge who convicted him last fall of aggravated sexual assault after he failed to disclose his HIV-positive status to three women to re-open his case so he can provide “new evidence” to the court.

Superior Court Justice Edward Gareau found Nicholas Goodchild guilty of the offences involving a trio of sexual partners in November, following a seven-day trial that took place in June and July 2017.

The women had sexual relations with Goodchild between July 2013 and April 2014.

On Monday, Gareau heard an application, filed by the defence, to re-open Goodchild’s conviction so that he can call evidence from a Manitoba doctor, qualified by the court as an expert on biology and the risk of transmission of HIV.

Toronto lawyer Michael Lacy told the court he wasn’t requesting a mistrial, but wanted the case re-opened, so that Gareau could hear evidence from Dr. John Richard Middleton Smith.

The central question for the court is whether it is in the interest of justice to allow the applicant the opportunity to address “fresh evidence” and “would the failure to do so be a miscarriage of justice,” he said.

Prosecutor Dana Peterson argued that the application should be denied, maintaining that Smith had nothing new to add to the evidence the court heard from another expert during the trial.

“There was no miscarriage of justice here,” the assistant Crown attorney maintained, suggesting testimony the court heard from Smith on Monday didn’t “cast a new light on anything.”

The issue in this case was the effectiveness of condoms. It was acknowledged in an agreed statement of facts and medical information provided at the trial that Goodchild was untreated at the time of the occurrences and the only protection used was condoms, she said.

 

Peterson said the court had heard scientific evidence from an expert witness, and Smith hasn’t identified any drastic changes in the use of condoms.

“All of this evidence was before you, and having it presented by two doctors wouldn’t have made a difference,” she told the judge.

“How could it. It was the same evidence.”

Lacy said “this is a very serious case” for Goodchild, who has been convicted of one of the most serious crimes in the Criminal Code.

“Understanding of HIV is evolving,” he said, urging Gareau to re-open the conviction and hear the evidence.

“Only then will justice be served in this case,” he said, after noting there would be latitude for the Crown to call further evidence.

Following his Nov. 15 conviction, Goodchild’s sentencing was adjourned until March 26 so that pre-sentence and Gladue reports could be prepared.

The sentencing didn’t go ahead on that date, because the Gladue report wasn’t ready, and it was put over until May 14.

Last month, the sentencing was again delayed when Goodchild brought the application to re-open his conviction, and Gareau agreed to hear the motion.

The case centred around the issue of “significant risk of bodily harm” and whether there was a realistic possibility of transmission.

One of the women tested positive for HIV in October 2014.

The early diagnosis enabled effective treatment, the court was told during the trial.

Two of the complainants met Goodchild through a dating website, while the third was introduced to him by a member of his family.

Gareau heard neither the women nor Goodchild intended or wanted long-term or “boyfriend/girlfriend” dating relationships and the sole purpose of their encounters was to have sexual relations.

Prior to Monday, Lacy and Peterson provided the court with written arguments, case law, factums and sworn affidavits in support of their positions on re-opening the case.

The Crown cross-examined Smith on his affidavit yesterday, via video hookup.

He told Peterson he retired from Manitoba’s HIV care program 10 years ago, but continues to practise medicine.

Gareau also heard from Goodchild’s lawyer, Jennifer Tremblay-Hall, who outlined the steps she had taken to get an HIV expert to testify at the young man’s trial, and the restrictions placed on her by Legal Aid, including a requirement that she find someone in Ontario.

Published in SooToday.com on June 19, 2018

US: Idaho man charged with “knowingly transferring bodily fluid which may contain HIV”

Police: Twin Falls man may have knowingly spread HIV; detectives ask victims to come forward
June 21, 2018

TWIN FALLS — A Twin Falls man is accused of knowingly spreading fluids that may have contained HIV during sexual encounters.

Bryan Thieme, 37, was charged June 15 with transferring bodily fluids which may contain HIV, according to a statement from the Twin Falls Police Department.

Police said Thieme had consensual, unprotected sex with at least two different men in May. They believe there may be more victims and are encouraging any other possible victims to contact Detective Ken Rivers.

A person found guilty of knowingly transferring bodily fluids that may contain HIV can face up to 15 years in prison and/or a $5,000 fine under Idaho law.

It’s hard to say what the public health risk is in a case like this without knowing more about an accused person’s diagnosis and treatment, said Idaho Department of Health and Welfare spokeswoman Niki Forbing-Orr.

“If he was receiving treatment, then the risk to the public would have been very low, but if he was not being treated, then it would be much higher,” Forbing-Orr said.

Situations such as this are “pretty rare,” Forbing-Orr said. 

There were seven new cases of HIV reported in south-central Idaho in 2017, according to data from the Department of Health and Welfare, and one new case reported between January and March of this year.

Six people, including Thieme, have been charged with knowingly transferring body fluid that main contain HIV in Twin Falls County since 2007, according to the Twin Falls County Prosecuting Attorney’s Office. 

Thieme is also involved in another pending case in Twin Falls County, though he has not been charged in that case. James Shaff, a 33-year-old from Twin Falls, is accused of having sexual contact with drunken teenagers at Thieme’s house, also in May.

Thieme has a prior federal conviction for possession of child pornography.

EDITOR’S NOTE: A previous version of this article incorrectly stated that there has only been one other person charged with knowingly transferring body fluid that may contain HIV in Idaho since 2012. 

Published in MagicValley.com on June 19, 2018

US: 34-year-old man sentenced to 30 years in prison in Texas for alleged HIV transmission

Man sentenced for intentionally infecting woman with HIV
June 21, 2018

Man sentenced for intentionally infecting woman with HIV

HOUSTON – A judge sentenced Karim “Tyson” Zakikhani to 30 years in prison as part of a plea deal for knowingly infecting his ex-girlfriend with HIV.

Zakikhani, 34, held his head down as the judge announced his fate.

His ex-girlfriend, Sarita Anderson told the court how life has changed since her diagnosis. 

“I call it my tragedy, the testimony, how I had to dig myself out of that hole and basically, I feel like the old me died, but I worked real hard to rebirth a new person and I feel like that person is better. You don’t know how strong you can be, until you have no choice but to be strong,” Anderson said.

The couple met working security at a hospital in 2013.

While they were dating, Zakikhani told her that he was HIV negative, however, medical records show doctors diagnosed him in 2008.

Despite Anderson ‘s disease, she is now focusing on becoming stronger, especially for her almost 3-year-old son she shares with Zakikhani.

“He may have given me something that I’ll live with lifelong physically, but he won’t have me mentally for a lifetime. I won’t be mentally imprisoned by this,” she said. 

Anderson said at least eight other women came forward after KPRC’s original story, stating he had infected them with HIV as well, however, she was the only victim named in this case.

Published in Click2Houston on June 20, 2018

UK: Doctor convicted of fraud for not disclosing his HIV status to NHS

Doctor who hid his HIV was in ’serious breach of trust’ says NHS
June 19, 2018

Doctor who hid his HIV was in ‘serious breach of trust’ says NHS

He’s been handed a suspended prison sentence for his actions

The NHS has welcomed news that a Nottingham doctor has been convicted for fraud after he attempted to hide the fact he had HIV.

Tamas Nyary, of Redcliffe Road, Nottingham, who has been a practicing doctor in the UK since 2004, has been suspended from his position pending an investigation.

The doctor, who specialised in trauma and orthopaedic surgery, pleaded guilty to forgery, using a false instrument, causing a computer to perform a function to secure unauthorised access to data and fraud at Nottingham Crown Court on Thursday (June 15).

He received 12 months in prison, which was suspended for two years.

According to the Genera Medical Council, Nyary trained at the Semmelweis University of Medical Sciences in Budapest before coming to the UK and working at five hospital trusts across the country including in Nottingham.

Hundreds of patients received letters in May 2017 inviting them to take part in precautionary blood tests after Nyary was found to be HIV postive. Almost 400 patients were called in for precautionary testing but none had been infected.

NHS bosses have said that counselling was offered to the patients who were affected by the doctor’s actions which they described his actions as a “serious breach of trust”.

Dr David Levy, the regional medical director for NHS England Midlands and East, said: “Nyary’s attempts to conceal his HIV diagnosis were a serious breach of trust and we welcome his conviction.

“Our first priority was to provide reassurance to patients and precautionary blood testing found that none had been infected.

“Clinical evidence shows that the risk of infection was extremely low but this was a worrying time so advice and counselling was offered to these patients.”

A spokewoman for the GMC said: “Dr Nyary is interim suspended – he was suspended following a hearing of the Interim Orders Tribunal (IOT) at the Medical Practitioners Tribunal Service (MPTS) in Manchester.

“An interim orders tribunal can suspend or restrict a doctor’s practice while an investigation continues, if it is necessary for the protection of the public, or otherwise be in the public interest or in the interests of the doctor.

“Our fitness to practise investigation continues – where there are judicial proceedings we would always wait for these to conclude before completing our own investigation.”

The NHS has robust procedures in place that allow HIV positive staff to continue to work safely and present no risk of harm to patients.

A healthcare worker must declare their HIV status to their employer so that those safety precautions and, in some cases restrictions to practise some procedures, are put in place and observed.

As long as a healthcare worker who is diagnosed with HIV takes and maintains a course of drugs which eradicate the virus in the bloodstream they may return to work, providing they follow all appropriate infection control procedures and any other restrictions on their practice that their professional body may order.

In this case, because the doctor attempted to conceal his diagnosis, he prevented his employers being able to put in place the necessary precautionary measures to ensure the complete safety of patients.

US: Man charged with “second-degree recklessly endangering safety” in Wisconsin for alleged HIV non-disclosure

Brookfield man with HIV didn’t tell victim about diagnosis before having unprotected sex, complaint says
June 18, 2018

Brookfield man with HIV didn’t tell victim about diagnosis before having unprotected sex, complaint says

A Brookfield man has been accused of not disclosing he’s HIV positive before he had unprotected sex with two other men recently at a local hotel.

Brian C. Hudson, 49, was charged in Waukesha County Circuit Court on June 13 with second-degree recklessly endangering safety. If convicted, he faces up to 10 years in prison.

According to a criminal complaint, the 24-year-old victim and a third man messaged each other on social media before the third man, who hasn’t been charged, sent Hudson on May 31 to pick up the victim and all three went to a town of Brookfield hotel where they had consensual and unprotected sex.

On June 7, the victim reached out to police for unspecified reasons. During the discussion, police showed the victim a photo of himself on Hudson’s phone, which the victim said he never gave anyone permission to take.

Investigators then told the victim that Hudson and the third man are HIV positive, and the victim asked to press charges against them for potentially exposing him to a life-threatening illness, the complaint said. 

It remains unclear how officers obtained Hudson’s phone, and the substance of their discussion with the victim. Police said this is an ongoing investigation and were unable to answer further questions. 

According to the complaint, Hudson said he told the victim about his HIV status. 

Hudson’s next court date is July 3. Charges against the third man had not been filed as of Friday afternoon, June 15.

US: Man living with HIV sentenced to 8 years in prison in Florida for alleged HIV non-disclosure

Former Greenacres police officer gets 8 years in HIV exposure case
June 18, 2018

Former Greenacres police officer gets 8 years in HIV exposure case

former Greenacres police officer convicted of failing to inform his sexual partner of his HIV status was sentenced to eight years in prison Friday. 

Judge Samantha Schosberg Feuer imposed the sentence Ervans Saintclair during a hearing at the Palm Beach County Courthouse. The sentence came after Saintclair was convicted in April on one count of uninformed HIV sexual intercourse.

During Friday’s hearing, Saintclair apologized for his actions and several family members spoke on his behalf, telling the court that he was a changed person.

“I made some bad choices and because of those choices I’m here,” Saintclair said during the hearing. “I took away a choice from the victim by not giving her the information she needed.”

His attorney, Sam Gershon, asked for a sentence of no more than the minimum of 21 months.

As Feuer made her ruling, she noted Saintclair’s career in law enforcement and said that he had put his accuser’s life in danger. 

“Police officers are supposed to uphold the law and he put this individual in jeopardy numerous times,” she said. 

Saintclair was arrested in January 2014 after a woman told authorities he failed to disclose his HIV status to her to during an off-and-on sexual relationship between 2009 to 2013.

mistrial was declared in November after a jury failed to reached unanimous verdict and the case went to trail again in April.

Saintclair’s accuser, a now 40-year-old U.S. Postal Service worker, testified during the first trial last year and again in April that the two of them had unprotected sex throughout their relationship and at one point were trying to conceive a child.

During the trial, Assistant State Attorney Brianna Coakley presented medical records and testimony from doctors who examined Saintclair, telling jurors the former officer knew he was infected as early as 2007.

At the time of his arrest, Saintclair has worked as an officer for six years with the Greenacres Police Department, which was later disbanded when the Palm Beach County Sheriff’s Office assumed law-enforcement responsibilities for the city. 

Saintclair also faces another legal action involving the same woman, plus three charges in connection with the case of a woman who said she had sex with Saintclair between March 2012 and November 2013 without him ever telling her that he was HIV-positive.

A hearing regarding those cases was set for June 26. 

Published in Palm Beach Post on June 15, 2018

 

 

Canada: The treatment of people living with HIV at the hands of Canada Supreme Court perpetuates stigma and fear

Our Highest Court’s Position On HIV Disclosure Is Steeped In Stigma
June 15, 2018

Our Highest Court’s Position On HIV Disclosure Is Steeped In Stigma

It perpetuates fear through a set of decisions that force those living with HIV to disclose their status, even if the risk of transmission is non-existent.

Canada’s reputation as a caring and progressive society has been tarnished by how the nation’s highest court has stigmatized people living with HIV. And, as recent court battles show, the supreme court rulings aren’t just charged and stigmatizing, they are also on shaky legal ground.

During an impassioned lecture at the University of Calgary recently, celebrated human rights advocate and HIV activist Justice Edwin Cameron, of South Africa’s highest court, described the treatment of those living with HIV at the hands of the Supreme Court of Canada (SCC) as a “uniquely Canadian monstrosity.

“Worldwide, despite antiretroviral treatment, about one million people die of AIDS annually. Many of them, roughly but accurately expressed, are dying of stigma,” said Cameron, who was diagnosed with HIV in 1986. His struggle with the virus, and his advocacy work, formed part of his best-selling memoir, Witness To AIDS.

Stigma, he argued, is “a social brand of judgment, an imprint of contempt and ostracism” that perpetuates silence and shame, and even fear of diagnosis, meaning too many people are not accessing the treatment that can restore their health.

The Supreme Court of Canada, charged Cameron, has served to perpetuate that fear with a set of decisions that imposed a legal duty on those living with HIV to disclose their status to partners even if they are receiving antiretroviral treatment, which reduces the virus to virtually undetectable levels.

“Canada has a dubious distinction. After the United States and Russia and eastern European countries,” said Cameron. “It has prosecuted more cases, it has put more people in prison for simple non-disclosure of HIV infection, than any other country. It lags behind only a handful of jurisdictions in absolute numbers of convictions.”

And all the prosecution, which results from non-disclosure being treated in Canada as a criminal offence, is doing more harm than good, according to the Community, AIDS, Treatment, Information Exchange (CATIE), a Canadian group that promotes good practices for treatment and prevention programs for those living with HIV and hepatitis C.

CATIE points out there is zero evidence to show criminal penalties deter participation in behaviours that present risk of transmission. But prosecution is effective in deterring people from getting tested, while giving the public a false sense of security that criminal prosecutions will somehow protect them, Cameron pointed out. CATIE has recorded at least 184 instances of criminal charges in Canadian cases of non-disclosure.

“How can it be that Canada places so injurious a brand mark of stigma on people living with HIV, more so than many other western countries,” stated Cameron.

At the heart of it lie two supreme court decisions — (R v.) Currier and (R v.) Mabior.

‘Rape with no rapist’

Henry Currier of B.C. was charged with aggravated assault for not disclosing his HIV to two women with whom he had consensual, unprotected sex. Neither of his partners contracted the virus but the Supreme Court ruled his failure to disclose his condition constituted fraud, thus negating consent.

“The result was rape with no rapist, but instead only a sexual partner with a medical condition that was neither communicated, nor transmitted to the other partner,” said Cameron. The decision, “punished those with HIV solely for having HIV and for not disclosing it.”

“In doing so (R. v.) Currier created a new monster legal category of aggravated assault with no assault, except emotional exposure to an infectious disease, and no aggravation, except judicial enforcement of societal condemnation of the accused person’s conduct… in not disclosing his infection.”

“This criminal category, the most expansive, judicially created doctrine targeting HIV on the planet, is a uniquely Canadian monstrosity.

The issue of HIV non-disclosure returned to the Supreme Court in 2012 with R. v. Mabior.

Clato Mabior stood trial on 10 counts of aggravated assault involving nine women and was sentenced in 2008 to 14 years for not disclosing his status. Mabior was receiving antiretroviral treatment at the time and none of his partners contracted HIV.

Cameron said the court failed to take into account established medical evidence of the efficacy of antiretroviral treatment and HIV transmission. Furthermore, other people living with more communicable and deadly diseases are not bound to disclose.

“From a moral point of view, Mr. Mabior, like Mr. Currier, are unappealing. But it is not the court’s task to yield to moralism or to invent overbroad criminal doctrines to enforce it.”

Published in the HuffPost on June 14, 2018

Italy: 36-year-old man arrested for alleged HIV transmission

HIV man may have infected over 200 women
June 14, 2018

HIV man may have infected over 200 women

Truck driver arrested for criminal injury

(ANSA) – Rome, June 13 – A 36-year-old truck driver from Ancona has been arrested for allegedly passing on HIV to women via unprotected sexual intercourse, sources said Wednesday. The suspect travelled all over Italy for work and it is feared he infected over 200 women. The man, who denied having the virus although he suffered from it for at least nine years, was arrested for alleged criminal injury.
    Police will launch an appeal to trace the potential victims, some of whom may have been contacted by the suspect via social networks and online chats.

Published in Ansa News on June 14, 2018

US: The criminal law is falling behind, ignoring advances in HIV science

Fighting for HIV justice
June 13, 2018

Fighting for HIV justice

Writer and advocate Olivia Ford argues that the modern realities of living with HIV are being overlooked by the criminal justice system.

Advances in global HIV prevention, care, science, and treatment in recent years — and the potential benefits to the lives of people living with, at risk of acquiring and affected by HIV— are astounding. Effective HIV treatment has made healthy and normal lifespans a reality for millions of people living with HIV across the globe, and treatment and human rights advocates continue to work to secure access to these lifesaving treatments for everyone living with HIV.

The science is clear: When taking effective anti-HIV medication, a person living with HIV cannot transmit the virus to a sexual partner. If they are pregnant, the chance that their baby will acquire HIV during birth can drop to less than one percent.

Even without being on treatment or using a condom or other barrier, HIV is difficult to transmit. And if HIV transmission occurs, the person acquiring HIV has a serious but manageable disease and can expect to live a normal lifespan with adequate treatment. Yet these soaring advances — which have saved and extended countless lives — have all-too-often been misunderstood, misrepresented, or ignored within criminal justice systems the world over.

So what is HIV criminalisation?

HIV criminalisation is a term that describes the unjust use of the criminal law (or similar laws, such as public health, civil and/or administrative law) to punish and control the behaviour of people living with HIV based on their HIV status. Behaviour in these cases is most often consensual in nature.

This can happen through HIV-specific criminal statutes, or by applying general criminal laws governing offences such as assault (including sexual assault), reckless endangerment, or even attempted murder, to instances of potential or perceived exposure to HIV. Use of the law in this way ignores robust and widely available scientific and medical evidence related to HIV and its transmission, and to the realities of living with HIV in the modern era of the epidemic.

HIV criminalisation is a growing, global phenomenon. However, it seldom receives the attention it ought to, considering not only that it undermines the HIV response by compromising public health and the human rights of people living with and affected by HIV, but also that there is no evidence of any benefit from these laws.

In many instances, laws that criminalise HIV are exceedingly vague or broad — either in their wording, or in the way they have been interpreted and applied. This opens the door to a host of potential human rights violations against people living with HIV.

Usually these laws are used to prosecute individuals who are aware they are living with HIV and allegedly did not disclose their HIV status prior to sexual relations (HIV non-disclosure); are perceived to have potentially exposed others to HIV (HIV exposure); or are thought to have transmitted HIV (HIV transmission). The laws are often enacted, and applied, based on myths and misconceptions about HIV transmission — as well as stigma against communities living with or affected by HIV.

Some of these laws allow prosecution for acts that constitute no, or a vanishingly low, risk of HIV transmission: spitting, biting, scratching, oral sex, sex with condoms or a low viral load. In many countries a person living with HIV who is found guilty of other “crimes” — notably, but not exclusively, sex work, or someone who spits at or bites law enforcement personnel during their arrest or incarceration — often faces enhanced sentencing even when HIV exposure or transmission was impossible, or virtually impossible.

Two significant problems with most HIV criminal laws and prosecutions are that they typically focus on proof of HIV disclosure, rather than on whether a person had any intent to do harm or whether a perceived harm (i.e., transmission) actually occurred; and felony punishments and severe sentences sometimes treat any level of HIV exposure risk as the equivalent of murder, manslaughter, or rape with a weapon — a patently false and dangerous equivalency. One key aim in reforming HIV criminal laws can be to challenge these two problems by advocating for the corresponding core legal principles that convictions must require proof that the person intended to do harm; and the degree of punishment must be closely related to the level of harm.

As of February 2018, HIV Justice Worldwide estimates that 68 countries currently have laws that specifically allow for HIV criminalisation; including the 29 individual states in the United States with such laws raises the total to 97 jurisdictions. Other jurisdictions have non-specific laws that are still used to criminalise people living with HIV. Prosecutions for HIV non-disclosure, exposure, and transmission have been reported in 69 countries — 116 jurisdictions, including 38 US states and the US military. HIV-related cases can be challenging to track — even more so in countries where such information is not freely available. Therefore, it is impossible to determine an exact number of HIV-related criminal cases for every country in the world.

Much of what is known about individual cases comes from media reports. Mainstream media plays a significant role in reinforcing a society’s prejudices, and HIV criminalisation is just one lens for witnessing that insidious process. Because HIV criminalisation stories may involve salacious details of “sex, drugs, and crime,” media outlets may use dramatic headlines highlighting those details to grab attention in busy media markets. The images and language used in these stories increase the notoriety of specific defendants, and can serve to further marginalise and target individuals who are already members of vulnerable groups.

Where do the criminalisation laws come from?

The world’s first HIV-related prosecutions, and eventually HIV-specific laws, occurred in the mid-late 1980s, when HIV was truly a death sentence for millions of people who acquired the virus. These legal actions grew out of lack of control of the epidemic and widespread ignorance about the nature of HIV transmission. Their enactment was also driven by stigmatising myths of “intentional HIV transmitters” fed by mainstream media reports that often exploited other forms of bias, such as anti-black racism and homophobia.

The number of countries enacting such laws has increased in the decades since, even as powerful HIV drugs became available which dramatically lengthened lifespans for those with access to them, and reduced to zero the risk of HIV transmission from those taking them. Sub-Saharan Africa had no HIV-specific laws when the 21st century began; now nearly half the countries on the continent have a mechanism for prosecuting people living with HIV. This trend has also been presenting in high-income countries in recent years.

Who do these laws target?

Under these overly broad statutes, virtually anyone who is living with HIV could be prosecuted. Laws that criminalise people living with HIV disproportionately affect communities that already face undue levels of policing, incarceration, and human rights abuses — including people of colour; sex workers; women, inclusive of transgender women; and people living at the intersections of these identities.

These laws are often framed as protecting women “victims” from dishonest partners. But laws that criminalise HIV exposure do not protect women. Women living with HIV may face violence if they disclose their HIV status, but risk arrest and prosecution if they do not disclose — or they do disclose, but their partner claims they did not. Many women have been arrested or sent to prison based on accusations by former partners who used HIV criminal laws as a tool of harassment or control, often after the woman attempted to end the relationship.

Because women may be more likely than men to engage with sexual and reproductive healthcare due to pregnancy, women are often the first person in a relationship to be tested for HIV and to know their HIV-positive status. Even just an allegation of being the one to “[bring] HIV into the home” or simply an accusation of non-disclosure that leads to an encounter with the criminal system, can result in a woman losing her housing, property, child custody, and more, creating negative repercussions for her entire family.

Most laws require only that a person knew their HIV status for a successful prosecution. This effectively punishes a person living with HIV for the health-seeking action of knowing their HIV status, and can result in a “he said/she said/they said” battle in court, in which the person who knows their HIV-positive status usually loses.

HIV criminalisation is at odds with public health objectives, such as UNAIDS’ 90-90-90 goals for ending epidemic HIV. Anecdotal evidence as well as several analyses have suggested that fear of prosecution may deter people — especially those from communities highly vulnerable to acquiring HIV — from getting tested and knowing their status, because laws apply mainly to those who are aware they are living with HIV. HIV criminalisation can also block access to HIV care and treatment, undermining counselling and the relationship between people living with HIV and healthcare professionals, because medical records can be made publicly available and used as evidence in court.

There is no evidence that HIV criminalisation laws deter behaviour that can transmit HIV, or reduce the number of new HIV cases. Further, by making it illegal for a person with HIV to have sex without disclosing their status, HIV criminalisation delivers the inaccurate message that all people with HIV are inherently dangerous, and that an adequate prevention strategy is to rely on partners to disclose and avoid those who share the information that they are living with HIV.

In reality, a large proportion of new HIV cases result from unprotected sex with a person who is living with HIV, but has not become aware of their HIV status through testing — or has had barriers to staying connected to HIV care. In a true public health approach, all consenting partners must take responsibility to engage in safer sex.

The above is an extract from Making Media Work for HIV Justice. Read in full here

Published in NAPWHA on June 13, 2018

US: Louisiana man charged with intentional exposure for alleged HIV non-disclosure

New details released on man booked on 12 counts intentional AIDS exposure
June 13, 2018

New details released on man booked on 12 counts intentional AIDS exposure

We have new information about a Rayne man arrested Monday on 12 counts of intentional exposure to the AIDS virus.

I spoke with a detective with the Rayne Police Department, and here’s what he told me.

Joshua Dugas of Rayne is charged with intentionally exposing the AIDS virus to a juvenile.

The police received a complaint from an adult saying the suspect was spreading the HIV virus. 

That tip led them to start the investigation.

They uncovered the victim is 14-years-old, and the act was consensual.

Police say the suspect did not disclose he was HIV-positive.

Police tell us the crimes took place in different locations around the town.

Now a background check of Dugas shows he was charged in 2010 of committing the same crime, not disclosing he was HIV-positive.

Once again it was consensual, but the victim was not a juvenile. 

Dugas was not convicted of this crime because the victim dropped the charges.

Dugas was also charged with possession of methamphetamine and marijuana. He was also in possession of a firearm.   

Dugas’ bond is set at $75,000 dollars and he is being held in the Acadia Parish Jail.

Published in KLFY on June 12, 2018

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