Bringing Science to Justice: Beyond the Canadian Consensus Statement on HIV and its Transmission in the Context of Criminal Law

In 2012, the Supreme Court of Canada took a step in the wrong direction. The Court made a harmful decision that would have people living with HIV charged with aggravated sexual assault, jailed, and registered as sexual offenders – all this for not disclosing their status to a sexual partner, even if they used a condom or had an undetectable or low viral load. This is the case even if the positive person has no intent to harm and HIV is not transmitted.

In May 2014, some 80 scientific experts Canada-wide signed a groundbreaking consensus statement. They were concerned that scientific evidence around HIV was not correctly interpreted and understood by police, judges, prosecutors, and lawyers who work in the criminal justice system, contributing to the wide use of these harsh charges and sentences in cases of HIV non-disclosure.

Scientific evidence has a critical role to play during these criminal proceedings. Unfortunately Canada continues to see unfair prosecutions and unscientific rulings in cases of HIV non-disclosure, and criminal defense lawyers report great challenges in getting expert witnesses to testify in court. Provincial Attorneys General continue to resist calls for more restraint in pursuing prosecutions.

On April 30, the Canadian HIV/AIDS Legal Network co-hosted an ancillary event at the Annual Canadian Conference on HIV/AIDS Research (CAHR), along with the Canadian Experts on HIV and Transmission Team, and HIV & AIDS Legal Clinic Ontario (HALCO).

The event, ‘Bringing Science to Justice: Beyond the Canadian Consensus Statement on HIV and its Transmission in the Context of Criminal Law‘, provided an opportunity to examine the consensus statement in greater depth and discuss how to move forward – ultimately, to bring science to justice.

Below you will find my presentation setting the stage for the meeting, providing a global overview of the harms of overly broad HIV criminalisation, and how science has positively influenced HIV-related court rulings and criminal law on a global scale.

Although there has been no clear ‘win’ in Canadian courts so far following the Canadian consensus statement, it has real potential to positively influence developments in criminal law at home and abroad.

Two of the leaders who originated the consensus statements were Drs. Mark Tyndall and Mona Loutfy. In the statement, the authors cite their professional and ethical responsibility to assist those working in the criminal justice system so that these actors may better understand and interpret the current medical and scientific evidence. At this ancillary event, Dr. Tyndall recounted his experience testifying as a medical expert before the court.

Cécile Kazatchkine, Senior Policy Analyst at the Canadian HIV/AIDS Legal Network, noted that the consensus statement has been shared with many key players in the criminal justice system, medical experts, and the public.

Criminal defense lawyer Jonathan Shime, who has extensive experience working on cases of HIV non-disclosure, urgently called upon medical experts to testify before the courts.

The consensus statement is a very important tool for medical experts and lawyers to bring science to justice. As science evolves so, too, must the criminal law. Punishing people living with HIV who have an undetectable or low viral load, or use a condom, is not the answer.

The consensus statement can be found here.

Presentation: Bringing Science to Justice.

Greece: Repeal of Health Decree 39A must be followed by further initiatives to protect human rights and to reverse the HIV stigma left on Greek society and political life

Guest blog post by the production team of Ruins: Chronicle of an HIV Witch-Hunt

An official repeal of Health Decree 39A has been published on the Official Journal of the Hellenic Republic as of Friday, April 17. The decree led to the case chronicled in our documentary which involved the mandatory testing and prosecution of a group of HIV-positive women, most of them injecting drug users, in a 2012 police operation in central Athens.

The minister of health P. Kouroumplis has signed a repeal of the decree’s reinstatement by Adonis Georgiadis in July 2013 (a month after it was first repealed by former deputy minister Foteini Skopouli).

Health decree 39A was an attempt by our former governments to distract the Greek public -with the help of the media- from the disastrous effect of their inhumane austerity policies.

The decree has had many victims. Firstly, the women that were targeted three years ago, as well as those among them who are still facing trial in the Greek courts. The signing of the decree was also followed by the victimization of thousands of people including women, men, Greek citizens and migrants, victims of trafficking, injecting drug users and members of the LGBT community, who were rounded up and violated through mandatory blood tests during the original police operation by former ministers Loverdos and Chrysochoidis, as well as in later operations such as Xenios Zeus.

The decree launched a mass, organized campaign of misinformation that continues to this day and promotes irresponsible and unacceptable generalizations about the HIV virus and AIDS (the disease that is caused by the virus in the absence of treatment).

Its supporters promoted the view that mandatory exams, criminal prosecution and the scapegoating of vulnerable populations is a valid public health tactic in spite of a lack of evidence to support this claim and the ever-increasing international concern that such tactics of repression have the opposite of the desired effect on public health.

Decree 39A and the women’s arrests also put Greece on the shameful world map of countries that have criminalized HIV, and was widely condemned by UNAIDS among many international organizations and renowned scientists and experts.

The repeal of 39A must be followed by further initiatives to protect human rights and to reverse the stigma it has left on our society and political life. Our institutions must address with resolve any attempts from anyone in a position of power to repeat similar actions inspired by 39A, that could risk the life and well-being of vulnerable people.

We in the production team of the documentary Ruins: Chronicle of an HIV Witch-Hunt, wish to thank the members of all those organizations and initiatives, who fought for the repeal of the decree and who have made efforts to keep the public informed about the relevant issues for the past three years, as well as for their ongoing support to the victims.

HIV Justice Network’s response to the Law Commission’s Scoping Review of the law in England & Wales that is used to prosecute ‘reckless’ and ‘intentional’ HIV/STI transmission

Today was the deadline for responses to the scoping consultation of the reform the Offences Against The Person Act, undertaken by the Law Commission.

This is the law in England and Wales that is currently used to prosecute people living with HIV (and occasionally other sexually transmitted infections; one each so far for gonorrhoea, hepatitis B and genital herpes) for ‘reckless’ or ‘intentional’ transmission, as grievous bodily harm.

The review is extremely thorough for a scoping exercise – i.e. this isn’t the full review, but a review of whether a full review is necessary!

It even spends quite some time highlighting some of the many reasons why overly broad HIV criminalisation is problematic including:

  • Difficulties with the current interpretation of subjective recklessness.
  • Complexities of proving timing and direction of transmission.
  • Appreciating that the people most likely to be a public health threat – those untested and untreated – are not liable under the law.
  • Using the criminal law for a public health issue, is “counterproductive in public health terms and contributes to the marginalisation of minority groups”, doing more harm than good.

The paper then offers a ready-made solution, already prepared back in 1998: a draft bill that would make only intentional disease transmission a crime and reverse all the decisions in Dica and Konzani in 2003-5 that resulted in the current legal situation.

  1. In the draft Bill, clause 15 provides that:(2) Physical injury does not include anything caused by disease but (subject to that) it includes pain, unconsciousness and any other impairment of a person’s physical condition.(4) In its application to section 1 this section applies without the exceptions relating to things caused by disease.Accordingly, the effect of adopting the draft Bill as it stands is that:
    1. (1)  there would be criminal liability for the intentional transmission of disease amounting to serious injury, but
    2. (2)  there would not be criminal liability:
      1. (a)  for the reckless transmission of serious disease, or
      2. (b)  for the intentional or reckless transmission of any disease that is not serious.
      This would reverse the decision in Dica and approximately reinstate the law as it stood in 1998.

Nevertheless, it also suggests all kinds of possibilities, including creating a new law that would criminalise non-disclosure, or potential or perceived exposure, just to be balanced. Fortunately, it goes on to suggest that this isn’t necessarily the way forward, despite asking some rather pointed and misleading questions about such an approach in its consultation questions.

Below is full the response from the HIV Justice Network, noting that:

  • The scoping paper did an excellent job summarising the problems and policy issues relating to the overly broad use of the criminal law in relation to sexual disease transmission (see 6.36-6.58).
  • I do not see why, notwithstanding the concerns raised at 6.68 (“it would go further than required to meet [UNAIDS] recommendations”) the wording of the draft Bill could not be adopted as it stands, so as to exclude disease from the definition of injury except for the purposes of the offence of intentionally causing serious injury.
  • Given the detailed overview of the problems and policy issues relating to the overly broad use of the criminal law in relation to sexual disease transmission (6.36-6.58), the lack of complete consensus by the minority of “professionals in the relevant fields” does not suggest to me that there needs to be further examination of the “consequences for public health policy and the broader ethical question of whether public health considerations should be the main policy factor.” It is evident to me – and UNAIDS and most other informed, clear thinking experts on this issue – that if the criminal law in this area does not consider public health above and beyond any other consideration (i.e. deterrence, punishment, ethical norm creation) then it does more harm than good.
  • So far, England and Wales has led the world in the development of policy in this area (in the absence of legislation limiting the overly broad use of the criminal law) with the creation of prosecutorial and police guidance. It would be disastrous to the global standing of England and Wales as both a leader in pragmatic policy, and in supporting the public health and human rights of developing countries through investment in HIV and health systems via DFID, if the law relating to sexual transmission of disease were expanded to include, for example, prosecutions for non-disclosure or potential or perceived exposure.

HIV Justice Network Law Commission OAPA 1861 Scoping Consultation Response by HIV Justice Network

Read the Law Commission OAPA 1861 Scoping Review: Chapter 6, Disease Transmission

Canada: HIV “murderer” Aziga now also a “dangerous offender”, locked up for life

Johnson Aziga, 55, an African migrant living with HIV, is a now officially a “dangerous offender” according to Canadian criminal law.

Mr Aziga is already considered a “murderer” two times over. He was convicted in 2009 of two counts of first-degree murder, ten counts of aggravated sexual assault and one count of attempted aggravated sexual assault, because he had unprotected sex with eleven women without telling them he had HIV. Seven of the women subsequently tested HIV-positive, and two died of AIDS-related cancers within a couple of years of having had sex with Mr Aziga.

[A number of articles and blog posts on Mr Aziga’s trial – and the media’s reaction to it – can be found on my blog.]

Being a “dangerous offender” means he will likely remain in prison for the rest of his life – even in the unlikely event that his life sentence without the possibility of parole for 25 years for the murder convictions is overturned on appeal. [The whole “dangerous offender” process is considered by some legal experts to be discriminatory and “dangerous” because “putting the onus on criminals makes it too easy for the court system to declare people dangerous offenders.]

Johnson Aziga would have been at least 78 years old if he had been able to be considered for release after 25 years. And yet, somehow, the Canadian legal system considers that at this age, Mr Aziga’s libido would be so voracious, his appeal so alluring to Canada’s heterosexual female population, that he must be locked up for life.

Mr. Aziga’s sex drive “is head and shoulders above” the average man’s and “knowing his need for sex is not going to be satisfied” could deter him from disclosing his HIV status to potential partners, [Crown attorney Karen Shea argued]. “He didn’t abstain from sex knowing what he knew (about having HIV), he didn’t discuss his HIV status knowing what he knew and he didn’t wear a condom knowing what he knew,” she told the court.

I am the only person that sees this as absurd – as both racist and HIV-phobic?

The legal characterisation of men of African origin with HIV as ‘monstrously’ hypersexual is not new. Back in 1993, Canada tried to convict Charles Ssenyonga of similar ‘crimes’ (His ‘victims’, like Aziga’s, were all white women; his virus, like Aziga’s, a “rare African strain”.) Ssenyonga died before the trial concluded. The prosecution (and media’s) focus on his hypersexual Africanness was explored in a fabulous 2005 article by James Miller, ‘African Immigrant Damnation Syndrome: The Case of Charles Ssenyonga’ published as part of a special issue of the social science journal, Sexuality Research & Social Policy called ‘Reckless Vectors: The Infecting “Other” in HIV/AIDS Law.’

In the introduction by the journal’s editors Heather Worth, Cindy Patton, and Diane Goldstein, they highlight the issue of racism in HIV criminal cases.

…the fact that the accused is African is used to indicate a priori an excessive and lethal sexuality and to position Africa itself as a deviant and viral continent and as the source and cause of AIDS. This prejudice extends to successive generations of African immigrants, as can be seen in the case of Nushawn Williams, an African American man from upstate New York. The same focus on Williams’ Black, eroticized body is evident in the numerous media accounts of the case.

Interestingly, Nushawn Williams is currently going through exactly the same process as Mr Aziga, having already served the maximum sentence of 12 years for the ‘crimes’ he pleaded guilty to back in 1998. Back in May 2010, a New York State Supreme Court judge ruled that Mr Williams “poses a danger to society and as a result, must remain behind bars even though his sentence is complete.” He is now awaiting the outcome of his civil confinement hearing that has been delayed for almost a year.

Mr Aziga and Mr Williams are being punished twice over. The idea that society is protected from HIV by keeping them in prison indefinitely is erroneous and outrageous. In the past men used to “lock up their daughters” when a man of purported huge sexual prowess came sniffing around, as if their female offspring did not have a sexuality or a choice in whether or not to have sex with their suitor.

Now, society locks up “HIV monsters” because it thinks female members of society need protecting from them, as if they did not have a sexuality or a choice in whether or not to have sex with their suitor.

But the real problem is that focusing on Black or African HIV (in the guise of Aziga or Williams) creates a false sense of security because all sex comes with risks of HIV infection (and these risks are usually much higher from someone with HIV who is undiagnosed, and therefore unable to disclose).

Wouldn’t it be better – and more cost-effective – to spend some money on HIV prevention education for the general public, so that white heterosexual women, and others who think that they are not at risk for HIV because they haven’t been targeted with HIV prevention information (usually aimed at ‘key populations’ like gay men and Black or African communities) can learn how to protect themselves from HIV rather than foolishly relying on the criminal law to protect them after the fact?

UK: The return of the “HIV Monster”

The British tabloid press had a field day yesterday following the sentencing of Nkosinati Mabanda, 44, at Wolverhampton Crown Court for ‘reckless’ HIV transmission. He received a four year prison sentence; was also given an anti-social behaviour order (ASBO) ordering him not to have sex without first revealing his HIV status (unclear if this also covers his time in prison); and will be considered for deportation following his release.

Of note, the only successful prosecutions for ‘reckless’ HIV transmission in England & Wales since 2004 have taken place when the defendant pleaded guilty.  (See this table of all UK cases from NAT – an additional heterosexual case in Wood Green, London, was dismissed in March 2011 due to lack of evidence).

In fact, Mr Mabanda had tried to change his guilty plea (and his legal representation) when he realised how difficult it was to prove the charges he’d already pleaded guilty to. He was not only unsuccessful, but did himself no favours by having a further sexual relationship with another woman (who did not test HIV-positive) in the two years he was out on bail.  (The first report of his case, from December 2009, is here.)

Since Mr Mabanda’s country of birth is Zimbabwe (he apparently migrated to the UK in 2004), the two right-wing tabloids, The Sun and The Daily Mail pandered to their readers’ prejudices and characterised this human being who had make mistakes (as human beings do) as an ‘HIV Monster’.

The term “HIV Monster” and its variant, “HIV Avenger”, has been around since the late-1980s. The idea that a person with HIV is no longer human but a “monster” was established by the myth of “Patient Zero,” a key figure in Randy Shilts’ bestselling 1987 book about the AIDS epidemic, And the Band Played On. “Patient Zero” was characterised as a sociopathic individual who may have intentionally infected others following his AIDS diagnosis, behaviour for which, Shilts suggested, the coercive powers of the state were ineffective. This myth has since been replayed many times worldwide and is often the impetus for calls for new HIV-specific laws and/or tougher sentencing.

Certainly, readers’ comments suggest the tabloids did their job of dehumanising Mr Mabanda – many calling for his death, castration or, at the very least, immediate deportation to what they hope will be a certain and painful death in the absence of HIV treatment in his native Zimbabwe.  Anti-immigration (and anti-African) sentiment is also widely expressed.  The comment below is illustrative of all of the above, and yet also alludes to the difficulties of disclosure due to HIV stigma. (Of course, having children if you are HIV-positive is neither “off the cards” nor “selfish” – it is possible to conceive and give birth with minimal risk to a sexual partner or infant and many people with HIV can, and do, have children with the full support of their doctors, partners and families.)


The content of the stories – if not the tabloids’ headlines –  take their facts and their moral tone from a police press release, and the words of the complainant.

The press release states:

Superintendent Jan Thomas-West, from West Midlands Police, said: “The particularly disturbing element of this case is Mabanda’s blasé attitude towards his victim and his various other partners.

“Mabanda told officers that he had had sex with nine women in the UK and that seven of them had not know he was HIV positive. Unfortunately, these women were impossible to trace.

“He seems to have shown no regard for the health of others or the potential life sentence he may have passed on to anyone who had sex with him.

“His victim will remain on medication forever and her life expectancy has been reduced as a direct result of his actions.

“I am pleased that Mabanda has received a significant custodial sentence today.”

West Midlands police subsequently circulated a second email quoting the complainant, parts of which were used in the The Sun and Mail stories.

Further to this release, please find below a statement from his victim, who wishes to remain anonymous:

“I am pleased with the sentence given to Mabanda today and that the judge recognised the seriousness of what he has done.

“I feel a combination of anger and relief. Anger at what he has done to me and potentially other women and relief because he has been punished for his actions.

“I think he should have been given life because that’s the sentence he has given to me.

“What he did has had a devastating impact and will affect me every day for the rest of my life, but now I want to move on.

“If anyone else recognises him because of the media coverage and they have been infected, they should go to the police and I will be there for them.”

 The complainant also gave interviews to the local paper, The Express and Star and to BBC Radio 5.

She said: “He should have been given life because that’s the sentence he has given to me. He’s just scum. I hope he’s deported because I hate him.

“I’m on medication now for the rest of my life.”

And in the BBC interview she highlights that Mr Mabanda knew he was HIV-positive “before he came to this country.”
I have a great deal of compassion for the complainant, who also admits in the BBC interview that she knew nothing about HIV (including, obviously, how to protect herself) before she discovered from Mr Mabanda’s fiancée that she was at risk.  
But there appears to be no attempt to understand how Mr Mabanda acquired HIV himself; continued to have multiple concurrent relationships; and felt unable or unwilling to either use a condom or disclose to most of the women he encountered. (Interestingly, though, he had disclosed to two of the ten women.)  The only evidence of any kind of understanding of Mr Mabanda’s issues comes from Twitter.

Couldn’t agree more, Krystle.