[Update]Taiwan: Supreme Court upholds acquittal of man accused of HIV exposure thanks to expert medical evidence on HIV risks

A former elementary school teacher was accused of concealing that he had AIDS and had oral sex with a man surnamed Wu without a condom several times.

He was diagnosed with HIV in 2003 and was subsequently treated for the disease. The prosecution alleged that he knew he had HIV but had oral sex and intercourse with Wu several times between 22 and 24 May 2017 at his residence, and Wu was later screened negative at the hospital.

The prosecutor found that the teacher had violated the Human Immunodeficiency Virus Infection Prevention and Protection of the Rights of Infected Persons Act, knowing that he was infected but concealing his dangerous sexual activity with another person, resulting in an attempted infection of a person.

The first trial found that the teacher had not transmitted the disease and had not forced his partner to do so, so his methods were not too bad.

The teacher denied the offence and testified that he did not have sexual intercourse with Ng because the two parties were not in agreement on the day of the sex act, so there was no erection or ejaculation, only oral sex.

The trial held that apart from Ng’s testimony, there was no other evidence to support that the two had sexual intercourse and that the focus of the trial should be on whether “oral sex” was a dangerous sexual act under the Ordinance.

The first trial pointed out that according to the information published by UNAIDS, the literature reports published by HIV scholars, and the evidence from NTU Hospital that the male teacher was taking anti-AIDS medication, the frequency of taking medication, and the status of taking medication, the male teacher and Wu did not ejaculate during oral sex with each other, and according to the literature reports, the actual risk of HIV infection from ejaculation-free oral sex is zero, which means that according to the current medical research, there is no risk of HIV infection from ejaculation-free oral sex. This means that according to the current medical research, there is no risk of HIV infection from ejaculatory oral sex.

The first instance ruled that the concept of “undetectable=untransmittable” (U=U) in the literature report was not a dangerous sexual act and convicted the male teacher of having oral sex with Ng. The Supreme Court found no error in the decision and dismissed the appeal.

國小師遭控隱瞞愛滋病無套口愛 法院最終判他無罪確定
2022-07-28 11:36 聯合報／ 記者
林孟潔
／台北即時報導

一名前國小老師被控隱瞞罹患愛滋病，多次與吳姓男子無套口交，吳事後篩檢為陰性，檢方認為他違反人類免疫缺乏病毒傳染防治及感染者權益保障條例而起訴，他一度被判1年5月徒刑，但最高法院判他無罪確定。

男老師2003年被驗出罹患愛滋病，之後接受治療；檢方起訴指出，他明知自己感染愛滋病，卻在2017年5月22日至24日與吳在住處數度口交、性交，吳事後到醫院篩檢呈陰性。

男老師和吳性行為期間，也提供安非他命給吳施用，吳到警局自首，移送檢方偵辦才揭發上情，檢方認為男老師違反人類免疫缺乏病毒傳染防治及感染者權益保障條例，明知自己為感染者卻隱瞞與他人危險性行為，致傳染於人未遂罪嫌，依法起訴。

一審認為男老師危險性行為，但未傳染疾病，也沒有強迫對方，手段不算太惡劣，吳也同意法院從輕量刑，判1年5月徒刑；二審指出，認定「危險性行為」不應受愛滋病毒汙名化及恐懼的影響，口交未射精沒有傳染風險，改判無罪，被最高法院撤銷發回更審。

男老師否認犯行，供稱他沒有和吳性交，因為當天要發生性行為時，雙方不合意，所以沒有勃起、射精，只有口交而已，「我不認為這有構成危險性行為。」

更一審認為除吳的證述外，沒有其他證據可佐兩人有性交，因此應審究重點應是「口交」是否屬條例中所指的危險性行為。

更一審指出，根據聯合國愛滋病規劃署出版的資料、愛滋病毒學者發表的文獻報告、台大醫院鑑定男老師服用抗愛滋藥物、取藥頻率、服藥狀況等證據，男老師和吳互相口交未射精，依照文獻報告，無射精口交實際傳染HIV風險為0，即代表依目前醫學研究結果，無射精口交即無感染HIV的風險。

更一審認定文獻報告中「測不到病毒即不具傳染力」（U=U，即undetectable=untransmittable）的觀念，認定男老師和吳口交不屬於危險性行為，再判無男老師罪。檢察官上訴，最高法院認為判決沒有違誤，駁回上訴，全案確定。

(Central News Agency, Liu Shiyi, Taipei, Taiwan, 9 September) The first trial of a man with AIDS, surnamed Feng, who was charged with dangerous sexual behavior, sentenced him to one year and five months, but after an appeal, the second trial today found that “the actual risk of HIV transmission from oral sex without ejaculation is 0”, based on the latest medical literature and outpatient data in Taiwan.

The case was based on the fact that the man, surnamed Feng, knew that he had acquired immunodeficiency syndrome (AIDS) due to HIV infection, but he concealed it and had oral sex with the man, surnamed Wu, several times at his residence between May 22 and 24, 2017.

The prosecutor charged Mr. Wu with the crime of attempting to infect a person by concealing a dangerous sexual act with another person under the Human Immunodeficiency Virus Infection Prevention and Protection of the Rights of Infected Persons Act.

He was sentenced to one year and five months in prison in the first trial, but after an appeal, the second trial was heard by the Taiwan High Court.

The second trial’s press release pointed out that the sexual intercourse part was not supported by any positive evidence other than Wu’s testimony, and that a single statement should not be used to conclude that Feng had sexual intercourse with Wu. “The scope of “risky behaviour” should keep pace with the advancement of medical research, given the rapid development of science.

The second trial pointed out that the information published by the United Nations AIDS Program in May 2010 and the HIV scholars who held the World AIDS Conference in the Netherlands on July 25, 2017 identified that “risky behaviour” should not be influenced by HIV stigma and fear, and that the criminal offence should be applied to cases where there is no risk of HIV transmission.

The second trial pointed out that the two sources affirmed that “a non-detectable virus is not infectious” and that “the risk of HIV transmission from oral sex without ejaculation is zero”, and that Fung Nam’s outpatient records at a Taiwanese hospital and the doctor’s testimony that the virus level drops significantly after two weeks of taking the medication, and that the virus level may not be detected after one month of taking the medication, etc. Therefore, it was concluded that Fung Nam’s virus level dropped to a non-detectable level during oral sex with Wu Nam in May 2010.  It was therefore not impossible to conclude that the viral load of Mr Fung during his oral sex with Mr Ng in May 2017 had dropped to the extent that it could not be detected.

The second trial said that Feng’s actions did not pose a risk of causing human immunodeficiency virus infection in terms of medical evaluation and were not dangerous. . (Editor: Zhang Mingkun) 1090609