Taiwan: High court reverse sentence and acquit man accused of HIV exposure thanks to expert medical evidence on HIV risks

Appeal won

HIV Positive man accused of dangerous sexual behaviour in second instance has his sentence reversed and is acquited

June 9, 2020
Source: Central News Agency reporter
Automatic Google translation. For original in Chinese, please scroll down.

Central News Agency reporter Liu Shiyi, Taipei, 9th) The case of a man with surnamed Feng who was charged with AIDS was accused of dangerous sex. The first trial was in May of 1 year. After an appeal, the second trial today was determined according to the latest foreign medical literature and Taiwan outpatient information. The actual risk of HIV infection by oral sex is zero.”

The whole case is due to the fact that the man named Feng knew that he was suffering from acquired immunodeficiency syndrome (commonly known as AIDS) due to infection with human immunodeficiency virus (HIV). He concealed it and stayed at the residence from May 22 to 24, 106 On several occasions, he had oral sex with a man named Wu, and Feng Nan also had sex with him.

The prosecution pointed out that after the AIDS screening of Wu Nan, he was negative and did not suffer from acquired immunodeficiency syndrome. The prosecutor concealed and carried out dangerous sex with others to cause infection in accordance with human immunodeficiency virus infection prevention and protection of the rights and interests of infected persons. And attempted to sue Feng Nan.

Feng Nian was sentenced to imprisonment for 1 year and May in the first instance. After appeal, the second instance was tried by the Taiwan High Court.

The second trial news materials pointed out that in the sexual intercourse part, except for Wu Nan’s testimony, there is no other positive evidence to reinforce, and it is not possible to use a single statement to determine that Feng Nan has sexual intercourse with Wu Nan; Whether it is “dangerous sexual behavior” within the meaning of the human immunodeficiency virus infection prevention and protection of the rights and interests of infected persons, with “medical evaluation of dangerous sexual behaviors that may cause human immunodeficiency virus infection” as the requirement, the current scientific development is rapid, “dangerous sexual behavior” The scope of the study should advance with the times as the medical research progresses.

The second trial pointed out that the United Nations AIDS Programme published materials in May 102 and HIV scholars who held the World AIDS Conference in the Netherlands on July 25, 107 published “Dangerous Sex” and should not be stigmatized by HIV. And fear, and apply criminal offenses to cases without risk of HIV transmission.

The second trial pointed out that the two data were willing to recognize that “the virus is not infectious if it is not detected”, “the actual risk of HIV infection by oral sex without ejaculation is 0”, and Feng Nan’s outpatient records at the Taiwan hospital and the doctor’s testimony after taking the drug The amount of virus per week will obviously decrease, and the amount of virus may not be detected for one month after taking it. Therefore, it is believed that the amount of virus during the oral sex between Feng Nan and Wu Nan in May 106 has dropped to the undetectable situation, which is not the case. may.

The second trial stated that Feng Nan’s behavior did not have the risk of causing human immunodeficiency virus infection in medical evaluation and was not a dangerous behavior. Therefore, the original verdict was revoked and the verdict was acquitted, and the entire case can still be appealed. (Editor: Zhang Mingkun) 1090609


當法律開始肯認科學實證,能裁量個別性行為的傳染風險,我們對於愛滋的恐懼與恐慌才可能漸漸成為歷史,愛滋防治才能發揮真正的效用。

107年世界愛滋大會文件:《專家共識聲明:刑法脈絡下的愛滋相關科學》(Expert consensus statement on the science of HIV in the context of criminal law)

新聞來源:中央社

(中央社記者劉世怡台北9日電)患有愛滋病的馮姓男子被控危險性行為案,一審判1年5月,經上訴,二審今天依國外最新醫學文獻以及台灣門診資料等認定,「無射精的口交實際傳染HIV病毒風險為0 」改判無罪。

全案緣於,馮姓男子明知其因感染人類免疫缺乏病毒(HIV)而罹有後天免疫缺乏症候群(俗稱愛滋病),竟予以隱瞞並於民國106年5月22日至24日,在住處,數次與吳姓男子互為口交,馮男並另對吳男性交。

檢方起訴指出,吳男事後經愛滋病篩檢,呈陰性而未罹患後天免疫缺乏症候群,檢方依人類免疫缺乏病毒傳染防治及感染者權益保障條例,隱瞞而與他人進行危險性行為致傳染於人而未遂罪嫌起訴馮男。

一審判馮男1年5月徒刑,經上訴,二審由台灣高等法院審理。

二審新聞資料指出,性交部分,僅吳男證述外,並無其他積極證據可補強,不得以單一指述,即認定馮男有對吳男為性交;本件應審究於二男互為口交,是否屬人類免疫缺乏病毒傳染防治及感染者權益保障條例所指的「危險性行為」,以「醫學上評估可能造成人類免疫缺乏病毒感染的危險性行為」為要件,現行科學發展一日千里,「危險性行為」的範圍,應隨著醫學研究的進程與時俱進。

二審指出,聯合國愛滋病規劃署於102年5月間出版資料以及107年7月25日在荷蘭舉行世界愛滋大會的愛滋病毒學者發表資料,「危險性行為」認定,不應受愛滋病毒汙名化及恐懼影響,而將刑事犯罪適用在沒有HIV傳播風險的案件。

二審指出,2份資料肯認「測不到病毒即不具傳染力」,「無射精的口交實際傳染HIV的風險為0」,且馮男在台灣醫院的門診紀錄以及醫師證述服用藥物後兩週病毒量就會明顯下降,服用一個月病毒量就可能測不到等情,因此認定馮男於106年5月間與吳男口交期的病毒量因而下降到測不到的情形,尚非無可能。

二審表示,馮男行為,在醫學評估上,不具有造成人類免疫缺乏病毒感染的風險,不屬危險性行為,因此撤銷原判決,改判無罪,全案還可上訴。(編輯:張銘坤)1090609

相關愛滋人權議題: 親密關係/性權