A 27 year-old former civil engineer and a 48 year-old married man who had casual sex at different times with a 37 year-old man (who subsequently tested HIV-positive) have each been sentenced to 18 months in prison because they did not disclose they were HIV-positive.
This is the first time that I’m aware that one complainant has resulted in two different convictions, and highlights the unbelievable unfairness of a criminal justice approach to HIV prevention. There have now been three convictions for HIV non-disclosure in Singapore – all of those prosecuted have been men who had sex with men during a single encounter. The first, in 2008, was simply for performing oral sex, for which there is no HIV risk for the receptive partner.
The 27 year-old was the first person to be sentenced under the 2008 Infectious Diseases Act for having oral sex (without condoms) and anal sex (with condoms) and not disclosing he was HIV-positive with the 37 year-old in January 2009, according to a report on channelnewsasia.com. He also had an undetectable viral load. Taken together, this means there was no risk to his partner.
In his mitigation, he said he found it difficult to disclose his HIV-positive status. He said the intention was not to harm the victim, but was one of “self-protection” as he was afraid of being “abandoned by his social circle”. He told the court his condition was under control by medication when he met the victim and that they had protected sex.
However, the prosecutor for the Ministry of Health, K Kalaithasan, called for a jail term of more than a year, saying the victim would not have engaged in sexual activity if he had known about the man’s HIV status. In sentencing, District Judge Siva Shanmugam said the nature of the offence was “grave”. He said by failing to inform the victim for his “own selfish reasons”, the offender had “endangered the safety of others”.
The second man, who had sex with the 37 year-old in May 2009, was also given an 18 month sentence. He says that he couldn’t have been the source of the complainant’s infection because he was the receptive partner and the 37 year-old had used a condom. Ironically, the complainant could not confirm that he used a condom (and surely, as a ‘top’, it was his responsibility to wear one!)
In a remarkably sympathetic report in The Straits Times, the man reveals how the prosecution has had a devastating effect on his wife and how he had considered suicide.
When a 48-year-old HIV-infected man pleaded guilty last November to having had sex with another man in May 2009 without revealing his status, he knew he might have to go to jail. Since then, his sentencing has been adjourned a few times to give him time to settle his affairs — including telling his wife about this court case. He could not bring himself to do it. He told The Straits Times last month that she knew he had tested positive for the virus that causes Aids, but he could not tell her about his conviction because she was already stressed in her administrative job.
“I can’t burden her more. I don’t know how to face her,” the former quality assurance technician said.
She now knows. The 40-year-old woman told The Straits Times yesterday that he broke the news to her just before Chinese New Year, but said she was in no frame of mind to say more. The couple have no children. Her slim, short and bespectacled husband, who did not have a lawyer, broke down in tears yesterday on hearing that he would be behind bars for 1-1/2 years. …
Sometimes I feel like killing myself. But I can’t do it… I hold back because of my family,” he added.
Again, the sentencing judge pulled no punches when sending the man to prison.
In passing sentence yesterday, District Judge Janet Wang said it is not the intention of the legislature to enforce the law against every HIV-infected person. However, she added, the penalties for keeping one’s HIV status a secret and failing to obtain a sex partner’s consent to being exposed to the risk of infection are in place for deterrence and to reflect the gravity of such offences. The judge said that, for his own sexual gratification, the accused had knowingly concealed his HIV status from his male sex partner, which she said was ‘highly unconscionable’ and showed a disregard for the other person’s well-being. “Such a deliberate omission only heightens his culpability,” she said.
I do wonder about “the intention of the legislature”, though, and whether Singapore will, in fact, “enforce the law against every HIV-infected person” who comes to their attention when a newly infected individual is looking for someone to blame for their infection.
The prosecution of both of these men seems especially unjust since the first man could not have been the source of the complainant’s infection and the second man was relying on the complainant to wear a condom. But since the law is only about non-disclosure and not about risk, or transmission itself, convictions are oh-so-easy, making all HIV-positive individuals extremely vulnerable to prosecution.