US: New York man faked HIV test, charged with reckless endangerment
Canada: Toronto man gets a year in jail for HIV exposure after Crown appeals lenient sentence
An HIV-positive Toronto man found guilty in May of HIV exposure, has had his one year suspended sentence increased to one year in prison, following an appeal by the Crown at the Ontario Court of Appeal.
Apparently, “the sentence imposed by a Superior Court judge last May was outside the range of sentences for other HIV-positive offenders who’ve knowingly had unprotected sex and it failed to take into account the breach of trust.”
This is one of those cases in which incarceration is the only way to express society’s outrage, said Justice Eleanore Cronk, who wrote the decision.
“The respondent’s non-disclosure of his HIV-positive status meant that (his girlfriend) was essentially duped, for a prolonged period, into having sexual relations with (X), she said.
Interestingly, the original case failed to make the papers first time around. Article from The Toronto Star, below.
[Update]US: Michigan woman sentenced to time served and 5 years probation for HIV exposure charges in Kalamazoo
[Update]France: Woman receives five year suspended sentence for HIV transmission to ex-husband
On Wednesday, a 39 year-old HIV-positive woman from Orleans in north-central France was found guilty of the French crime of “administration de substance nuisible par conjoint ou concubin ayant entraîné une infirmité permanente” (administering a harmful substance to one’s spouse or common law husband/wife with the consequence of lifelong impairment) for not disclosing her HIV status to her ex-husband, who subsequently was also diagnosed HIV-positive.
The three day trial is notable for several reasons. Although the first criminal HIV transmission conviction took place in France in 1996, and there have been around 15 convictions since, this is the first to have been tried in the Assize Court (Cour d’assises) which is only for people accused of committing the most serious of crimes, such as murder and rape.
CG faced up to 15 years in prison, and the prosecution requested between six and eight, but the judge was surprisingly lenient, due to her lack of good health, and she was given a five year suspended sentence.
The case has received much press coverage in France, but has not yet been picked up any English language papers. I was alerted to the case by a reader in France.
I include below stories from the AFP, Le Monde and Le Figaro, along with very rough (so don’t quote me), and partial English translations.
A previous hearing had raised doubts about proving the timing and direction of infection but this appears to have been ignored by the latest trial. It would be interesting to know what ‘proof’ the prosecution provided, other than her diagnosis in 1991 and his in 1997, that she had transmitted HIV to him. Without robust evidence, there may be grounds for appeal, but perhaps, given that the sentence is suspended, and Ms G poor health, there is little point in extending a battle that has raged in the courts for six years. It’s all so terribly sad.
UK: Man jailed for two years for sexual hepatitis B transmission – world first?
In what appears to the first ever criminal case of sexual hepatitis B virus transmission, a man in Gloucester has been sentenced to two years in prison under Section 20 of the Offences Against the Person Act 1861 – the same law used to prosecute ‘reckless’ sexual HIV transmission. The man, originally from Turkey, pleaded guilty; it seems he had a lawyer who had no idea about the limitations of phylogenetic analysis.
The case sets a worrying precedent for other sexually transmitted infections. It is also a concern because hepatitis B is 50–100 times more infectious than HIV and can be transmitted in ways that do not involve sex, such as sharing items such as razors or toothbrushes with an infected person. Furthermore, the public health message on hepatitis B prevention is to get vaccinated, rather than rely on partner disclosure and condom use.
It seems very likely that Gloucester police, the local Crown Prosecution Service (CPS) and the man’s laywer were not aware of the recent CPS policy statement and legal guidance for prosecutors for cases involving the intentional or reckless sexual transmission of serious infection which states that:
- Prosecutions are unlikely to take place as a result of one-off sexual encounters (the reports suggest that the alleged transmission took place as a results of a single sexual encouter). “It will be highly unlikely that the prosecution will be able to demonstrate the required degree of recklessness in factual circumstances other than a sustained course of conduct during which the defendant ignores current scientific advice regarding the need for and the use of safeguards,” it says in the legal guidance for prosecutors.
- Scientific evidence must be used to show that the defendant infected the complainant, but this evidence alone cannot conclusively prove the responsibility of the defendant for the complainant’s infection. “The prosecutor will need to be satisfied that the complainant did not receive the infection from a third party or that the complainant did not infect the defendant,” it says in the legal guidance for prosecutors. “This means that the prosecutor will need to know about any possibility which is compatible with the scientific evidence that the complainant was infected by a third party. This means enquiries will have to be made about the relevant sexual behaviour and relevant sexual history of the complainant.
This is why a defendant should always plead not guilty (and why the CPS should not accept a guilty plea) based only on phylogenetic evidence.
In a statement, the police said: “The case is the first in Gloucestershire to use techniques in DNA analysis to provide evidence that the defendant infected the victim and that the illness did not come from any other source.”
Although hepatitis B infection does not carry the same stigma as HIV, and is rarely life-threatening (fewer than one-in-ten adult acute infections, as in this case, ever become chronically infected with the virus, and even then, only about 15%–25% of people with chronic hepatitis B develop serious liver conditions, such as cirrhosis (scarring of the liver) or liver cancer) this didn’t stop the UK national tabloids, The Mirror and The Sun, from creating sensational headlines (well they would, wouldn’t they?). The Sun carried a photo of the man, and, stooping even lower, The Mirror even printed the name of the complainant. (In contrast I’m impressed by the Dutch, who do not ever print the names of the accused in such criminal cases.)
I’m disheartened that this case ever reached court given reassurances from the CPS that cases like these would be hard to prove, and not be in the public interest to prosecute. I’m also not sure that it is necessarily the case that people diagnosed with STIs are “rarely” ‘reckless’ in this manner, as suggested by both the police and The Sun Woman Editor. I’m more certain that the man’s ethnicity and ‘foreignness’ played a major part in his prosecution, as it did the first three cases of ‘reckless’ HIV transmission in England & Wales.
If there any lessons to be learned, it is that anyone accused of such a ‘crime’ needs to get connected to lawyer who understands the issues.
Netherlands: Three men on trial for deliberately injecting HIV into 12 men sentenced nine years, five years, and a year-and-a-half respectively
Three men are on trial in the Dutch city of Groningen accused of deliberately injecting 12 men with HIV during private sex parties.
The case has been covered with remarkable restraint by the Dutch media, and I include three reports below – the first of which includes extremely interesting insights into the workings of the Dutch criminal justice system.
I had been waiting to post this story after the initial reports because the trial was expected to last a week. However, other than a report on sentencing requests a few days after the initial two stories nothing else has been published. I had previously covered their arrest, in 2007, on aidsmap.com.
One imagines that since the case will rest on complex phylogenetic analyses, as well as debates over the relative seriousness of the alleged crimes, that the case has been adjourned.
Update: The 3 men were sentenced in November, see summary below.
Uzbekistan: Prosecutor office starts legal proceedings against local doctors for HIV transmission due to negligence
Germany: Man on trial for unprotected sex with 16 year-olds
US: Florida woman guilty of mother-to-child HIV transmission
In what appears to be the first successful case of a criminal prosecution for mother-to-child transmission of HIV in the US (a Canadian woman was prosecuted under similar circumtances in 2006), a Florida woman has been sentenced to two years’ probation after she pleaded guilty to felony child neglect.
She had faced up to 15 years in prison, but “prosecutors agreed to the deal because sending her to prison would significantly hinder her ability to care for him financially in the future.”