Africa’s criminal HIV transmission laws are highly inefficient, says Justice Michael Kirby

Australia’s most eloquent and insightful High Court judge, Justice Michael Kirby, spoke at the International Criminal Law Reform conference in Dublin yesterday, arguing that the move to criminalise HIV transmission in sub-Saharan countries such as Benin, Guinea, Guinea-Bissau, Mali, Niger, Togo and Sierra Leone will do more harm than good.

He also also argued that countries which focused on human rights-based laws that encouraged the undiagnosed to test for HIV did better at containing the epidemic than those which “adopted punitive, moralistic, denialist strategies, including those relying on the criminal law as a sanction.”


Third World should help HIV sufferers, not punish them: judge

Victor Violante, Legal Affairs Reporter

The Canberra Times


Developing countries should introduce laws that encourage potentially HIV-positive people to seek diagnosis and treatment, High Court judge Justice Michael Kirby said last night.

Speaking at the International Criminal Law Reform conference in Dublin, Justice Kirby said governments that had focused on educating rather than punishing those with HIV or AIDS were most successful in containing their spread.

”Those countries that have adopted a human rights-respecting approach to the HIV/AIDS epidemic have been far more successful in containing the spread of HIV than those countries that have adopted punitive, moralistic, denialist strategies, including those relying on the criminal law as a sanction,” he said.

Justice Kirby has been heavily involved in the international fight against AIDS, having served as a member of the World Health Organisation’s Inaugural Global Commission on AIDS from 1988 to 1992. Since 2004 he has been a member of the UNAIDS global reference panel on HIV/AIDS and human rights.

While many developed countries, including Australia, had laws that criminalised the deliberate spread of HIV, such laws should not be used as part of the strategy to curb infection rates.

”Legal and punitive laws have been kept in reserve because their aggressive deployment has generally been seen as counterproductive.

”This is so because of the typical ineffectiveness of criminal law as a response to activities important to individual identity and pleasure [such as sex and drug use].”

Justice Kirby, who is openly homosexual, spoke about his indirect experience with HIV, having seen friends die from the virus.

”From 1985, I lost a number of close friends, several of them members of the legal profession. I witnessed the substantial helplessness of the medical profession in the early days of HIV.”

He urged the thousands of lawyers, judicial officers and lawmakers from all over the world at the conference to avoid enacting what he called ”HILs”, or highly inefficient laws.

Of concern were laws introduced in some African nations, including Benin, Guinea, Guinea-Bissau, Mali, Niger, Togo and Sierra Leone, that impinge on the human rights of those infected with HIV or AIDS.

One law criminalised the ”wilful transmission” of HIV, but defined the offence as the transmission of HIV ”through any means by a person with full knowledge of his or her HIV status to another person”.

Justice Kirby said, ”Potentially, [that law] imposes criminal liability, although a person may practise safer sex which reduces or eliminates actual risk of transmission to a sexual partner; takes steps to disinfect injecting or skin-piercing equipment; or involving mother-to-child transmission of HIV regardless of the actual risks involved in the particular case.”

He urged governments to introduce laws and programs that were proven strategies in the war against HIV and AIDS, even if they were unpopular with their cultures.

”Taking the effective measures is not always popular. Yet taking punitive measures, depending on their terms and enforcement, is, on current information, unlikely to succeed in the environment where there is no effective vaccine and no curative therapy which can be offered to persons living with HIV and AIDS.”

US: Spitting as a deadly weapon: analysis

I have just written a news feature for analysing the recent conviction of an HIV-positive man in Texas to 35 years in prison for spitting at a policeman.

The first few paragraphs are below, but to read the article in full, click this link.

Texas jury concludes saliva of HIV-positive man a ‘deadly weapon’, sentenced to 35 yrs jail

Edwin J. Bernard, Friday, May 16, 2008

A 42 year-old HIV-positive man from Texas who spat at a police officer during his 2006 arrest for being drunk and disorderly has been sentenced to 35 years in prison by a Dallas court and must serve at least half of his sentence before being eligible for parole because the jury found that his saliva was a deadly weapon.

The case, which was reported by more than 175 news outlets yesterday, has outraged UK HIV organisations, particularly since only three reports – from The New York Times, USA Today and the Mississippi Clarion-Ledger – actually mention that HIV cannot be transmitted via spitting.

‘It is shocking that in the same country which has some of the most advanced research into HIV and its treatments, there can be such ignorance within the legal system as to how HIV is transmitted,” said Deborah Jack, Executive Director of the National AIDS Trust. “This is not justice but a victory for fear, myth and prejudice. Such a verdict – contradicted by all the science – must constitute a breach of Mr Campbell’s right to a fair trial.”

Lisa Power, Head of Policy at Terrence Higgins Trust, added: “The saliva of someone with HIV is not a deadly weapon. Putting someone with HIV in a situation where they cannot access condoms, treatment is poor and they may have little choice about sexual activity is a far more dangerous thing to do, and US clinicians need to tell the Texas legal system so.”

UK: Excellent article in Economist on criminal HIV transmission

Here’s a first…a well-written, concise and balanced article on the repercussions of criminalising reckless HIV transmission in England & Wales, from this week’s edition of The Economist.

HIV transmission: A modern bugbear
Apr 10th 2008
From The Economist print edition

AT FIRST blush the bigwigs at the Health Protection Agency, which monitors diseases, could have told a rosier story. On March 28th they reported that sexual-health clinics diagnosed 8% fewer HIV infections last year than in 2006. But Britain’s epidemic is not fading, they insisted. New infections among gay men and straight people are close to all-time highs; falling infections among heterosexuals who caught the virus in Africa account for almost all of the decline (see chart).

There are more ominous trends than these. Britons’ understanding of the risks has gradually worsened over the past decade or so. In January a poll by Ipsos MORI found that more than two out of five Londoners do not know that sex between men carries a chance of transmitting HIV. Lately, says Yusef Azad of the National AIDS Trust, a charity, the proportion of gay men having unprotected sex who give blood for a syphilis test but refuse to do so for a HIV test has gone up.

Is this complacency or dread? Mr Azad worries that some gay men may shirk free HIV checks because they fear a positive result could incriminate them in future. Since 2001, 13 people in Britain have been convicted of reckless grievous bodily harm (reckless injury in Scotland) for spreading HIV to their partners. Because recklessness involves taking a known risk, eschewing knowledge of the danger probably averts a court case.

Doctors and campaigning groups such as the National AIDS Trust say that the legal system creates muddled disincentives for public health. One man without a biochemical diagnosis of his status has been convicted after he ignored advice from a clinician and his South African wife that he should get one. But because a court in Liverpool also found him guilty of bigamy and fraud, with all the charges bundled together, his case provides an iffy precedent, if one at all.

The World Health Organisation has branded British police tactics “objectionable” and bemoaned the courts’ feeble understanding of virology. Until 2006 prosecutors bedazzled defendants into pleading guilty by waving lab reports of the genetic similarities between the virus in their blood and in their accuser’s. Yet such data cannot rule out other possibilities, for example that the accuser really infected the accused or a third party infected both. Sarah Porter, one “AIDS assassin”, as the tabloid press often brands those found guilty, may have been wrongly convicted, reckons Matthew Weait, a law lecturer who has written a book on the criminalisation of HIV transmission.

Chaos might be expected given that the law employed in such cases was written before doctors fully grasped that germs caused contagious diseases. It is also why the Crown Prosecution Service recently provided formal guidance. A policy statement published on March 14th makes clear that genetic data will always form part but never the entirety of case evidence. Moot points remain, such as whether someone who does not tell a partner about having HIV and transmits the virus when a condom splits is reckless.

Using the law to punish reckless disease-transmission runs the danger of doing more harm than good. Tellingly, HIV is the only bug ever to have prompted a criminal conviction in England and Wales. And the sentences so far meted out have been more than twice as long as those for the violent whacking and clobbering involved in other grievous-bodily-harm crimes. Yet living with HIV in Britain is less dangerous than living with hepatitis C, another sexually transmitted virus.

Copyright © 2008 The Economist Newspaper and The Economist Group. All rights reserved.

Uganda: Responses to Museveni’s approach to criminalising HIV transmission

Following President Museveni’s call for the death penalty as the appropriate punishment for criminal HIV transmission last week, two articles have appeared in Ugandan newspapers criticising his approach.

An editorial in Kampala’s newspaper, The Monitor, by Augustin Ruzindana, the Forum for Democratic Change (FDC) party secretary for research and policy, is suitably scathing (first article below); an (anonymous) academic lawyer at Makerere University has written a more balanced article for Uganda’s New Vision, (second article below).

Museveni’s HIV Remarks May Be Disruptive
The Monitor (Kampala)
21 March 2008
Posted to the web 21 March 2008

By Augustin Ruzindana

This week, HIV/Aids was not my topic. But the insensitivity of President Museveni’s statement calling for a death sentence for people who spread the virus, cannot go unchallenged. He has implicitly called for the stigmatisation, discrimination and shunning of persons infected with HIV/Aids.

The proviso of “knowingly” is of no relevance. This is a virus which is spread in so many ways. I am sure he has relatives, subordinates and thousands of citizens infected with the virus and many of them have succumbed to death.

As a policy statement at a recognition ceremony, this is terrible but not unexpected of him. Museveni has done the same with regard to some political opponents whom he has called traitors, thus by implication calling for a death sentence against them since treason calls for a mandatory death sentence.

Terminal solutions are habitual to him. Society should instead be urged to be understanding and find ways to protect the people who have been unfortunate to get the virus. Meanwhile those helping to manage the problem should now go out to educate the public to deal with the likely adverse effects of Museveni’s pronouncement. Some people may now be discouraged from taking tests or those who know their status may be afraid of disclosing it since they may be shunned.

I hope no Bill will be rushed to Parliament to put into effect the import of the unfortunate statement. In the last article, I dealt with the context for the review of the representation of the special interest groups whose mode of representation predates the coming into force of the 1995 Constitution and the recently introduced multiparty dispensation. Special interest groups were part of the National Resistance Council (NRC) and the Local Councils (LCs).

They were then incorporated into the 1995 Constitution under which the same Movement political system continued to operate. They have been inappropriately incorporated into the multiparty system without modification.

The elimination of the two term presidential limits had the unintended effect of leading to the adoption of a multiparty system. This explains the contradictions in the practical operation of the new political system in place.

On the one hand, there is an attempt to maintain political monopoly on power (and the rampant corruption that goes with it) in a manner typical to one-party systems while on the other hand, there is implementation of some level of economic and public sector reforms. These contradictions need to be eliminated for a multiparty to be properly established and operate fairly and smoothly.

For a system to be considered democratic, it must combine three essential conditions: Meaningful competition for political power among individuals and organisations; inclusive participation in the selection of leaders and policies through free and fair elections; a level of civil and political liberties sufficient to ensure the integrity of political competition and participation.

Even though fairly adequate legal and institutional frameworks are in place, there is no meaningful competition for political power, there are no free and fair elections and the level of civil and political liberties is insufficient to ensure the integrity of the processes that take place. This was highlighted by the categorical judgements of the Supreme Court which declared that the 2001 and 2006 presidential elections were a fraud.

In the face of this crisis of legitimacy, the regime has failed to inspire a sense of shared identity among all the diverse peoples of the country by ensuring the participation of all groups in the affairs of the state as well as equity in the sharing of its resources. This is the impetus for the demands of self-determination, otherwise known as “federo” and the creation of so many minute identity-based districts.

Ethnic and cultural identities have been mobilised for political purposes but then the fact that some ethnic groups feel excluded, disempowered and vulnerable has galvanised a counter mobilisation for justice and equity.

Government is responding with intimidation and violence, but this course of action just exacerbates the problems of lack of legitimacy.

As the options for government to manoeuvre get fewer and fewer, it becomes increasingly difficult to continue pretending to be democratic with increasing harassment of the political opposition. Thus the crisis of legitimacy can only escalate, even as Gadaffi, sensing the problem facing his protégé, tries to shore up his declining fortunes.

The writer is the FDC party secretary for research and policy

Punishing those who spread HIV is tricky
Publication date: Sunday, 23rd March, 2008

THERE is a debate on the appropriateness of using criminal sanctions to prosecute HIV-positive people who deliberately or negligently infect others with the virus.

Proponents argue that such a policy would deter such conduct while the anti-criminalisation lobby argue that:

  • Where behaviour is spontaneous and driven by human passion, as is sexual behaviour, it is unlikely that punishment will have a meaningful effect on people’s behaviour.
  • History indicates that punitive policies are counterproductive in the promotion of public health issues.
  • Criminal prosecutions will deter those most at risk from getting tested.
  • Opponents base their stand on the human rights implications of criminalisation for people infected with HIV/AIDS. This raises a number of questions:

    Should we punish individuals who, knowing that they are HIV+, engage in behaviour that can transmit HIV without using precautions and without informing their partners about their HIV status?

    Is it possible to use existing provisions of the Penal Code to punish ‘offenders’, for example, provisions on causing grievous harm, attempted murder, or negligent act causing death? Or would there be a need to create a specific provision criminalising the relevant conduct?

    The UN HIV/AIDS and Human Rights Guidelines provide that criminal legislation should not include specific offences against the deliberate and intentional transmission of HIV, but rather should apply general criminal offences to these exceptional cases. The guidelines identify four elements that need to be established to justify criminal sanctions: Foreseeability, intent, causality and consent. What does this mean?

    Foreseeability: The prosecution must prove that at the time of sexual intercourse, the accused knew or had reason to believe that he/she was HIV-positive. The accused must also be aware that it is harmful and capable of being transmitted through sexual intercourse.

    What kind of mens rea will be adequate? Must it be intention, recklessness or even negligence? It is imperative that laws relating to criminal transmission are used judiciously.

    They should criminalise the wilful transmission of HIV and not the HIV-positive status of a person. The relevant state of mind must be clearly established so as not to punish the accused simply because of the act of transmission.

    Causality: If the law is to punish only instances in which transmission occurs, then for the offence of criminal transmission, the prosecution must establish that the complainant was infected by the accused. The prosecution must prove that the complainant was HIV-negative at the time she/he engaged in sexual activity with the accused. It must be proved that the complainant was infected by the accused and not by anybody else.

    However, the law may punish a person who willfully engages in conduct which exposes another to the risk of infection even where the complainant escapes infection. This can be a specific offence or such behaviour can be punished according to the principles of attempts to commit a crime.

    The law would thus focus on criminal offences that prohibit behaviour which either results in transmission of disease or puts people at risk of contracting disease.

    Consent: Would informed consent be a defence to a criminal charge? If A reveals his/her HIV status to B and B nevertheless consents to unprotected sexual activity with A, this would perhaps offer a defence to A in the event of B being infected by A. So what constitutes informed consent is not that B willingly had sex with A, but that B knew that A was HIV-positive and willingly agreed to have unprotected sex with him/her.

    The Supreme Court of Canada ruled, in a case against a man who had unprotected sex with women without disclosing his HIV status to them, that without disclosure of HIV status, there cannot be true consent. The consent cannot simply be to have sexual intercourse. Rather, it must be consent to have it with a partner who is HIV-positive.

    A further issue also needs to be considered: If an accused does not reveal his/her HIV status, but takes precautions such as the use of a condom to protect his/her partner, but nevertheless transmission occurs, what would his/her criminal responsibility be?

    The writer is Associate Professor of Law, Makerere University

    Senegal: IAS outraged at arrest of gay HIV prevention workers

    The International AIDS Society has issued a statement following the arrest of ten individuals some of whom are HIV education and prevention workers.

    The full statement is below.

    Statement on the Criminalization of Sexual Orientation in Senegal
    19 February 2008 (Geneva, Switzerland / Abuja, Nigeria)

    As the principal convener of the International AIDS Conference, and as an organizing partner of the International Conference on AIDS and STIs in Africa (ICASA), the International AIDS Society (IAS) is firmly committed to an evidence-based response to the HIV/AIDS epidemic, based on sound science. It is therefore with great concern that we note recent developments in Senegal that led to the arrest of 10 individuals based on their sexual orientation, some of whom are HIV education and prevention workers in Senegal.

    The IAS is the world’s leading association of HIV professionals, with more than 10,000 members working at all levels of the global response to HIV/AIDS. Our members represent scientists, clinicians, and public health and community leaders on the frontlines of the epidemic in 171 countries worldwide.

    The Society for AIDS in Africa (SAA) is an independent association of HIV professionals in Africa, and the custodian of ICASA, the biennial regional AIDS conference in Africa. The next ICASA is scheduled to be held in Dakar, Senegal, in December 2008. Specifically for this reason, and to echo recent statements made by human rights organizations, IAS and SAA express our deep concern with the recent arrests in Senegal.

    Senegal has long been viewed as a model, given its success in controlling HIV/AIDS, which has affected other parts of Africa so severely. The success of the Senegalese response to HIV/AIDS has been the country’s ability to involve all segments of society as part of the national efforts on HIV education, prevention, care and treatment. Senegal is a country with strong faith traditions. And through tolerance and faithful collaboration, public health leaders in Senegal have long been able to work with socially marginalized populations such as commercial sex workers, migrant workers, and men who have sex with men, to create model HIV prevention programs. Central to this success is that Senegalese HIV programs have not discriminated against individuals based on sexual orientation. This approach in Senegal is a model for much of the world, and has proven successful despite concerns of some political and ideological leaders.

    From the perspective of science and sound public health policy, the IAS believes that all countries around the world must work respectfully with all segments of their population to stem the tide of inequality and to support disease prevention. Criminalizing sexual orientation has never led to positive results – and has never shown to reduce the transmission of sexually transmitted infections, including HIV/AIDS. Evidence shows us that criminalizing and discriminating against any group of individuals only serves to fuel the HIV/AIDS epidemic by denying services and relevant prevention messages.

    “The arrest of these men, based purely on their sexual orientation, is completely unfounded, and represents a major setback for the Senegalese response to HIV, which is widely viewed as a model in Africa,” said IAS President Dr. Pedro Cahn.

    The Society for AIDS in Africa, the custodian of ICASA, considers Senegal as a model of best practices for AIDS work in the continent, but opposes any form of discrimination against individuals based on sexual orientation.

    IAS would like to continue supporting the upcoming ICASA Conference in Dakar, Senegal, in December 2008. IAS and SAA would be better assured of the appropriateness of their continued support if it were to be made clear that those arrested recently in Dakar, primarily based on their sexual orientation, will not be charged as criminals. It would be further reassuring to know that the individuals who have been arrested, and their peers, are still welcomed to work alongside Senegalese public health officials on all aspects of HIV/AIDS programming in their country.

    Canada: Ryan Handy, convicted of HIV exposure, in his own words

    In an extraordinary coup, Canada’s gay newspaper, Xtra, has an interview with Ryan Handy, the 25 year-old found guilty of criminal HIV exposure in November, and who will be sentenced on March 27th.

    Click here for a page refresh with all previous postings on this case, including Xtra’s involvement in it.

    An article by Xtra‘s editor, Matt Mills, that contextualises the interview is also reproduced below.

    Ryan Handy Interview with, Part 1

    Ryan Handy Interview with, Part 2

    Ryan Handy Interview with, Part 3

    The story of an HIV convict

    CRIMINALIZATION / Handy awaits sentencing. Is he the real victim?

    In 2002, like so many young gay men itching to spread their wings, 20-year old Ryan Handy moved to Toronto. He quickly made friends in the gay party scene, met a man, fell in love and began to experiment with party drugs.

    Two years later, he was firmly in the clutches of a crystal meth addiction. One night while they were both rolling on ecstasy, his boyfriend with whom had regular unprotected sex finally told him that he was HIV-positive and knew it since before the two met. Handy stayed with the man for year after he tested HIV-positive himself because he was in love with him.

    By November 2004, the relationship was over, Handy had kicked the meth addiction and left Toronto but he was still wrestling with his life-long demon: mental illness diagnosed as schizoaffective bipolar disorder, a condition that was exacerbated by the party drug addiction. He suffered then what he describes as a “mental break.”

    In February 2004, Handy met a man online. The two had unprotected sex. Handy says his mental illness had left him delusional and psychotic, that he believed he was a messiah, that he could cure HIV and that he had healed himself.

    Soon Handy realized he’d made a mistake. After he told the man he was HIV-positive, the man called police. Handy immediately confessed and was charged with aggravated sexual assault.

    He was convicted in November, faces up to 25 years in prison and was originally due to be sentenced on Jan 31. His sentencing has been delayed until Mar 27.

    As a so-called victim of sexual assault, the identity of Handy’s accuser is protected by a court-imposed publication ban. The man has refused to talk with Xtra on the record.

    Handy, and other gay men facing similar charges, are branded as sex criminals and pilloried in the mainstream press. Their accusers, who freely chose to have unprotected sex, hide behind a tradition of publication bans that are intended to protect rape victims from further humiliation.

    Xtra has declined to publish the identities of these accused men without their permission and cooperation but Handy agreed to describe his experience in a Jan 7 interview with Xtra.



    Canada: Editorial in gay paper impacts upon ‘victim’ in gay HIV exposure case

    An editorial that argues that ‘victims’ in criminal HIV exposure and transmission cases are primarily responsible for their own sexual health, appears to have had an impact on the 55 year-old ‘victim’ of Ryan Handy, 25.

    The editorial appeared in Canada’s widely-read gay and lesbian newspaper, Xtra, and is reproduced below.

    There follows a report from the London Free Press about the impact the editorial had during sentencing of Mr Handy (whose case was previously reported on this blog last year), which has now been delayed until January 31st.

    (Thanks must go to an anonymous reader of this blog for alerting me to this development).

    2008 will be the year of criminalization
    EDITORIAL Matt Mills / Xtra / Thursday, December 20, 2007

    The ongoing criminalization of HIV and queer sex gained ominous momentum in 2007 and will likely come to a head in 2008.

    In November a London, Ontario man was convicted of aggravated sexual assault for having unprotected sex with a man without telling him that he is HIV-positive. The convicted man says he has struggled with mental illness for much of his life and was suffering from an emotional crisis when he met his accuser.

    “We hooked up online right after my breakdown,” the convicted man writes in an email to Xtra. “He said he wanted to love me like a daddy. After meeting I told him that I was a messiah, autistic, psychic and had the mind of a child. He picked me up, drove me into the country and jumped me in his car… I thought I was in love and thought that I was performing loving acts… There was no talk of HIV, protection or any sort of responsible conversation. The truth is that at the time of my arrest, at the age of 22, I was a vulnerable and completely damaged, mentally ill young man who sincerely and desperately wanted to be loved. [My accuser], a man of 51 at the time, knew that something was seriously wrong with me. Instead of addressing these issues and helping me with my mental health he took advantage of me sexually and emotionally.”

    The convicted man faces up to 25 years in prison while his accuser’s identity is protected by a publication ban. It is a tragic comment on our society that someone who is queer, HIV-positive and living functionally with the mental illness that afflicts so many young queer people should so inevitably end up behind bars chiefly because of the complaints of another queer man who freely and foolishly chose not to roll a rubber onto his own cock.

    That the so-called victims in these cases — this London case is only one of several examples that will unfold in 2008 — are pre-absolved of any responsibility for their own sexual health is patently absurd. Regardless of what they suspected or were told by their partners, unprotected sex was their choice. They were not cold-cocked and raped. No one held guns to the their heads. They weren’t blackmailed or threatened. They took calculated risks and must therefore bear much of the responsibility for any consequences. It is not a complex equation.

    In each of these disclosure cases the law prevents Xtra from publicizing the identities of the so-called victims, ostensibly to protect them from public humiliation. The accused, whose humiliation is complete and rooted in the horrendous and irrational stigma against queer sex and HIV, are denied the comfort of such protections. Police and the mainstream media have, in advance of any charge or trial, actively publicized their identities, health histories and other sensational gossip, effectively branding them as sex criminals.

    Lawyers for the accused naturally instruct their clients not to talk on the record until criminal proceedings are concluded. Sadly that only exacerbates the double standard, leaving Xtra to pussyfoot around these stories, carefully avoiding any detail that might violate a publication ban and expose the paper to contempt allegations. Meanwhile, the mainstream media and the justice system pillory these men in the court of public opinion before locking them up.

    To those queer men who have filed or are considering filing non-disclosure complaints with police: You are complicit in the criminalization of queer sex and HIV.

    To the accused men in these cases: I encourage you to speak openly and on the record with us when it’s safe for you to do so. Some of you will choose not to speak out, preferring to put your troubles behind you so you can get on with your lives. The exceptionally courageous few who do go on the record can help prevent these horrors from befalling others.

    Magazine article silences victim
    An HIV-positive man will be sentenced Jan. 31 after having unprotected sex with another man.
    By Jane Sims, Sun Media.

    An editorial in a gay magazine has silenced the victim of an aggravated sexual assault by an HIV-positive partner.

    Yesterday, during sentencing arguments for Ryan Handy, 25, Superior Court Justice William Jenkins was told he would not be hearing any victim impact statement.

    Assistant Crown attorney Peter Rollings said the victim, a 55-year-old man who cannot be identified by court order, has decided not to have his say filed with the court because of what he read in Xtra, a national gay publication.

    The editorial appeared in December and in it, the writer, associate publisher and managing editor Matt Mills, chastises the victim, who was 51 at the time of the incident, for not protecting his own sexual health when he engaged in unprotected sex.

    “No one held guns to their heads. They weren’t blackmailed or threatened. They took calculated risks and must therefore bear much of the responsibility for any consequences,” Mills wrote.

    The editorial quoted an e-mail from Handy to the magazine — without naming him — who wrote he was “a vulnerable and completely damaged, mentally ill young man who sincerely and desperately wanted to be loved.”

    Rollings said the editorial made the victim “extremely distraught” and he “didn’t want anything more to do with the case.”

    He added the editorial “advocates victims of this kind of activity to get on with life and not involve the police.”

    The pony-tailed Handy sat ram-rod straight at the defence table during the hearing. Through his lawyer, Craig McLean, he said he had never seen the editorial.

    McLean said it was not created by his client and “should have no impact on sentence.”

    Handy was convicted in November after a trial at which he testified he suffered from a mental illness and believed during a major mental breakdown that he had sweated out the HIV virus.

    Before the encounter with the victim, Handy believed he was the messiah and had written TV talk show host Oprah Winfrey saying Jesus was writing her through him.

    He and the victim met in a gay Internet chat room in February 2005. That led to the unprotected sexual encounters, then the victim telling him he was HIV negative.

    Handy said that it wasn’t until after the second encounter, while he was walking home, that he realized he wasn’t the messiah and he had the virus that leads to AIDS.

    He e-mailed the victim, who called police.

    The victim has been routinely tested for the virus since, but has not developed it.

    McLean suggested a two-year conditional sentence and asked Jenkins to take into account Handy’s mental illness and remorse.

    Handy’s illness is under control through medication and medical care, McLean said, and his risk to reoffend is low.

    At the time of the assaults, he said, Handy was “suffering a major mental illness.”

    Handy has no criminal record and his friends and family called “this type of offence out of character,” McLean said.

    Rollings asked Jenkins to consider a three-year prison sentence to send a message to the community. He asked if Jenkins decides against prison, to consider jail plus probation. Jenkins will make his decision Jan. 31.

    US: Excellent interview/podcast on criminal law and HIV exposure/transmission

    This was published on The Body in October 2007, but I only came across this excellent interview today.

    It is with Catherine Hanssens, executive director of the (US) Center for HIV Law and Policy, the first nationwide legal resource and strategy center for people with HIV and their advocates, and provides an excellent (and wonderfully cynical) overview of the state of play regarding criminal prosecutions for HIV exposure and transmission in the United States.

    Read the full interview, ‘Sex, privacy and the law when you’re HIV-positive’, at, here.

    Listen to the audio podcast here.

    Editorial: The Transmission of HIV and the Criminal Law

    Editorial by Matthew Groves in Criminal Law Journal (Australia)
    (2007) 31 Crim LJ 137

    There has recently been considerable publicity about the criminal law and the transmission of human immunodeficiency virus (HIV). In South Australia, the two issues came together in an appeal concerning so-called “AIDS-denialists”. In Victoria, the possible use of the criminal law in a case involving criminal conduct and the transmission of HIV generated widespread publicity about the alleged failure of administrative arrangements to manage the behaviour of people who are HIV positive and are suspected of engaging in inappropriate behaviour. The common theme in each instance was the continued difficulty that the law has in grappling with HIV-related issues. Another common point arising from each controversy is that legal responses to HIV, at least in the criminal arena, remain vexed about issues of knowledge and consent. Even the most recent of cases shows that these age-old issues are not capable of easy resolution of exact legal principle.

    Criminal cases about the transmission of HIV almost always involve sexual conduct. In most of these cases, a key dispute of fact is usually whether the alleged victims knew the accused was HIV positive. Many also raise the question of whether the accused knew if he (as it usually is a male) was HIV positive. The spectre of the Clarence1 case has long hung over such cases. That notorious case involved a husband who knew that he was suffering from gonorrhoea, but nonetheless had sex with his unsuspecting wife and passed the disease to her. Clarence was charged with inflicting grievous bodily harm and assault occasioning actual bodily harm.2 His appeal against conviction succeeded in part because the consent of Mrs Clarence to have sex with her husband was held not to be vitiated by her husband’s failure to disclose his illness. The case became more controversial over time by reason of its reliance on the artificial proposition that a married woman was, by virtue of her status as a wife, deemed to have consented to have sex with her husband. But considerable difficulty also flowed from
    the suggestion of Stephen J that fraud would not vitiate consent unless it went to either the nature of the act or the identity of the other person. The main problem with that approach was that it greatly narrowed the circumstances in which fraud would stymie consent.

    The High Court essentially adopted a similar view Papadimitropoulos v The Queen3 when it held that an accused who had taken a woman through a sham marriage was not guilty of rape when the two subsequently had sex (on what the woman mistakenly thought was their wedding night) because the woman knew of, and consented to, both the nature of the act and the identity of the accused. The court explained that “once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape”.4
    The reasoning adopted by Stephen J in Clarence was not decisively accepted in England until
    over a century later,5 but the decision had been steadily narrowed in the meantime.

    Papadimitropoulos was similarly chipped away by the introduction of many lesser sexual offences under which similar fraud could have been prosecuted.6 The reasoning in these decisions has assumed renewed importance with the rise of HIV-related prosecutions because most of these cases involve allegations of fraud that are not unlike those in Clarence and Papadimitropoulos. The experience of other jurisdictions suggests that further difficulties arise from the circumstances of many HIV-related cases.

    The leading New Zealand case of R v Mwai7 clearly invoked the spectre of Clarence. The defendant who was HIV positive had unprotected sex with five women without disclosing his HIV status. Two of the women became HIV positive. On appeal it was argued that the defendant could not control the virus and, therefore, had not failed to discharge any legal duty to which he might be subject. On appeal, attention focused on the likelihood that one of the defendant’s partners would contract HIV.

    More particularly, it was argued that the many biological factors that could influence whether any particular sexual encounter might lead to the transmission of HIV were such that the required causal connection between the sexual act and HIV infection could not be established to the standard required in criminal cases. This argument was essentially accepted in a string of Victorian cases,8 but was flatly rejected by the Court of Appeal of New Zealand.9

    Surprisingly little attention was given to the failure of the defendant to disclose his HIV status but the Court of Appeal did accept that disclosure could have made an important difference. The issue arose in the context of the extent of the defendant’s possible duty, as a person who had a dangerous thing under his control or charge,10 and the nature of the duty to take precautions against and to use reasonable care to avoid resulting dangers. The court accepted that:

    It is certainly arguable that there would be no duty if the partner consented to run the risk. Seen in thisway, the duty to use a condom would arise only if there were a failure to disclose.11

    Although the Court of Appeal accepted that this point was made irrelevant by the defendant’s failure to disclose his HIV status, it was clearly prepared to entertain the possibility that an informed partner might be able to consent to unprotected sex with a HIV positive person. The logically related proposition that a duty to use condoms might only fall upon a HIV positive person if he or she disclosed his HIV status assumes that the person knows of his or her own HIV status. A key problem with that approach is that proof on the part of a defendant of his or her HIV status might be difficult.

    Another problem is that, if a duty to engage in protected sex might only arise if there is knowledge and disclosure of HIV status, no such duty arises in other instances. That possibility does not sit well with the great emphasis that health authorities have tried to place on the need to engage in safe sex practices in all instances.

    In the leading Canadian case of R v Cuerrier,12 the accused, who was HIV positive, was charged with assault after he had unprotected sex with two women without disclosing his HIV status to either of them. The case turned on s 265(3)(c) of the Canadian Criminal Code, which provides that consent to the use of force is not obtained if the victim submits or does not resist by reason of fraud. All members of the Supreme Court held that Cuerrier’s failure to disclose his HIV status could constitute fraud within the meaning of this provision and could, therefore, vitiate consent.13 The case did not provide an entirely satisfactory precedent because the various judges issued three different theories on the requirements necessary to prove fraud in this sense.

    Cory, Major, Bastarache and Binnie JJ held that a complainant’s consent to sexual activity could be vitiated by fraud if an accused failed to disclose his or her HIV status dishonestly, and this dishonesty had the effect of exposing the complainant to a significant risk of bodily harm. This latter requirement was clearly met by the risk of engaging in unprotected sex, while the proper use of condoms could reduce harm sufficiently so that there was no “significant risk of bodily harm”.

    According to this view, unprotected sex could give rise to criminal liability, but protected sex
    probably would not. The remaining judges added a requirement that the prosecution establish that an accused either knew, or ought to have known, that his or her fraud actually induced the complainant’s consent to have unprotected sex. McLachlin and Gonthier JJ essentially argued that Clarence should be cast aside, so that deception or dishonesty about one’s HIV status or another sexually transmitted infection could constitute fraud, which would vitiate any apparent consent to sex. L’Heureux-Dubé J cast a wider net, holding that fraud occurred when the dishonest act induced the other person to consent to the conduct, irrespective of the danger or risk of the act. On this view, any form of fraud would effectively vitiate consent.

    R v Dica14 was another case involving a HIV positive man who had unprotected sex with several women without informing them of his HIV status. He was charged with the same offence used in Clarence and was convicted after the trial judge ruled that it was open to the jury to find the defendant guilty, partly on the basis that the knowledge or ignorance of the women of his health status was irrelevant because they did not have the capacity to consent to the serious harm of HIV infection.

    After this ruling, the defendant chose not to give evidence. On appeal, the defendant argued that, had the trial ruling not been made, he would have testified that the women knew of his condition but consented to have unprotected sex with him.

    The Court of Appeal overruled Clarence, holding that a victim’s consent to sex was not
    necessarily consent to the possible consequential risk of contracting HIV, but it did concede that consent could provide a defence to the charge of inflicting grievous bodily harm. The issue of consent was, therefore, wrongly withdrawn from the jury and Dica’s conviction was overturned. This approach suggests that a person who is aware that he or she is HIV positive and recklessly transmits HIV to another person may be guilty of an offence, but the issue will depend largely on the facts of each case.

    The Court of Appeal accepted that consent could not extend to conduct which amounted to a
    deliberate intention to transmit HIV,15 though it is clear that proof of intentional conduct would also depend greatly on the facts of each case.16

    The Court of Appeal also engaged in a curious attempt to explain the possible consequence of its acceptance of the role of consent. It reasoned that the criminalisation of risk-taking was fraught with difficulty and that “interference of this kind with personal autonomy, and its level and extent, may only be made by Parliament”.17 The Court of Appeal also observed:

    The problems of criminalising the consensual taking of risks like these include the sheer
    impracticability of enforcement and the haphazard nature of its impact. The process would undermine the general understanding of the community that sexual relationships are pre-eminently private and essentially personal to the individuals involved in them. And if adults were to be liable to prosecution for the consequences of taking known risks with their health, it would seem odd that this should be confined to risks taken in the context of sexual intercourse, while they are nevertheless permitted to take the risks inherent in so many other aspects of everyday life.18

    While the reasoning of the Court of Appeal provoked strong opinions on the extent to which
    people can and should be able to give consent to the risk of HIV infection,19 there is a clear consensus that this issue does not lend itself to a simple solution. Most of the cases to date have involved an accused who knew of his or her HIV status and nonetheless engaged in unprotected sex. All of these cases assumed that a HIV person knew the risks associated with unprotected sex but the Supreme Court of South Australia was recently faced with a novel situation in which that key assumption was challenged.

    In R v Parenzee,20 the defendant appealed three convictions of conduct endangering life. The
    defendant was HIV positive and had unprotected sex with three women. The prosecution focused on the defendant’s knowledge of his condition and led evidence that he knew of his HIV status and had been advised of the risks associated with unprotected sex. That evidence provided a strong foundation for a prosecution argument that the defendant knew his actions were likely to endanger the lives of his partners and that he was recklessly indifferent to this danger. The defendant’s appeal sought to completely undercut the basis of the prosecution by essentially denying the existence and effect of HIV. It was argued that existence of HIV had not been clearly proven, that the tests used to diagnose HIV infection were unreliable, and that there was no clear evidence that HIV killed CD4 cells (these are key cells associated with a healthy immune system). It was also argued that, even if HIV existed, there was no clear proof that it was sexually transmitted. An alternative to this latter argument was that, even if did HIV exist, the risk of transmission by sexual activity was extremely low. Although
    these arguments were ostensibly raised as potentially relevant to sentencing, the applicant also sought an extension of time for permission to appeal. That permission was refused and the detailed consideration undertaken by Sulan J would no doubt greatly influence any future attempt to deny the existence of HIV or its connection to acquired immune deficiency syndrome (AIDS).

    After a careful review of the evidence provided by expert witnesses called by the prosecution and defence, Sulan J rejected the “AIDS denialism” theory offered by the defence because the two witnesses who sought to give evidence in support of the theory were not qualified to give evidence in the fields of their claimed expertise. He also held that, even if the witnesses were regarded as suitably qualified to be experts, the basic assumptions that they sought to challenge were supported by such an overwhelming body of scientific evidence that no jury would fail to conclude that the HIV virus exists, that it is the cause of AIDS and that HIV was sexually transmissible.21

    The conclusions of Sulan J fill in an important gap in the wider puzzle of HIV and criminal
    liability. Relatively little attention has been paid to the issue of the knowledge of a HIV positive person about the likelihood of transmission or infection. It has usually been assumed that an accused must surely have known the key points found by Sulan J but, in the absence of clear findings to this effect, it would be possible for an accused person to deny the existence of either HIV or AIDS, or the possibility of the sexual transmission of HIV. This possibility would have pre-empted the arguments about knowledge or consent because it simply would have denied the existence of danger about HIV or AIDS. Parenzee essentially forced prosecutors to go “back to basics” and seek judicial confirmation of some fundamental points about HIV. If this ruling is adopted in other jurisdictions, and there seems little reason to doubt the very careful reasoning of Sulan J, it is now virtually impossible for an accused to deny the fundamental parameters of the medical evidence about HIV and AIDS. It is to be
    hoped that these propositions will not be re-argued. While a few more “monkey trials” might provide a novel spectacle and grist for the academic mill, they would simply muddy an already obscure area.

    Despite the detailed decision delivered by Sulan J in Parenzee, it was not entirely clear to whom the issues decided were relevant, ie did they affect the state of mind of the defendant or his partners? The points decided about the existence and potential danger of HIV and AIDS are clearly relevant to the offences of both endangerment and the actual infliction of harm. They are also relevant to the mental element of both defendants in HIV transmission cases and the partners of any such people who might be argued to have consented to the risk of unprotected sex. For the latter group, it seems increasingly difficult to maintain the possibility foreshadowed in Dica, namely that people may essentially provide informed consent to even the most serious possible harm because the common law has always shied away from the over regulation of personal sexual behaviour. One might suggest that the modern evolution of the laws of sexual offences, especially the reform of rape laws, represents a long journey away from that timidity.

    Matthew Groves is a senior lecturer in law at Monash University, Melbourne.

    1 R v Clarence (1889) LR 22 QBD 23.
    2 Respectively under ss 20 and 47 of the Offences Against the Person Act 1861 (UK) (24 & 25 Vict c 100).
    3 Papadimitropoulos v The Queen (1957) 98 CLR 249.
    4 Papadimitropoulos v The Queen (1957) 98 CLR 249 at 261.
    5 R v Linekar [1995] QB 250.
    6 See, eg Crimes Act 1900 (NSW), s 61R(2)(a)(ii); Crimes Act 1958 (Vic), s 57; Criminal Code (WA), s 192.
    7 R v Mwai [1995] 3 NZLR 149.
    8 See the cases noted in B; D (1997) 21 CrimLJ 40; Mutemeri v Cheesman [1998] 4 VR 484; (1998) 100 A Crim R 397.
    9 R v Mwai [1995] 3 NZLR 149 at 155-156.
    10 Under s 156 of the Crimes Act 1961 (NZ).
    11 R v Mwai [1995] 3 NZLR 149 at 156.
    12 R v Cuerrier [1998] 2 SCR 371.
    13 One assumption of the case was that this provision extended to sex because of the force involved, or rather that sex would normally constitute an assault in the absence of consent.
    14 R v Dica [2004] QB 1257.
    15 R v Dica [2004] QB 1257 at 1273. It is also worth noting that the Home Office had previously recommended that criminal liability should only attach to the intentional transmission of HIV: United Kingdom Home Office, Violence: Reforming the Offences Against the Person Act 1861 (1998).
    16 The same applies to an offence under s 19A of the Crimes Act 1958 (Vic) which creates an offence of intentionally infecting another person with a serious disease.
    17 R v Dica [2004] QB 1257 at 1271.
    18 R v Dica [2004] QB 1257 at 1271.
    19 See, eg Ryan S, “Reckless Transmission of HIV: Knowledge and Culpability” [2006] Criminal Law Review 981; Weait M,
    “Criminal Law and the Sexual Transmission of HIV: R v Dica” (2005) 68 Modern Law Review 121.
    20 R v Parenzee [2007] SASC 143.
    21 Sulan J also rejected related arguments that the tests for the detection of HIV were not scientifically reliable or credible.

    UNAIDS: Is HIV transmission a crime?

    Is HIV transmission a crime?

    UNAIDS – November 6, 2007

    Several countries have recently introduced laws to criminalise HIV transmission, or exposing another person to the virus. A number of jurisdictions have used general laws against serious bodily harm in cases where someone is accused of knowingly transmitting HIV or willingly exposing others to HIV transmission.

    Subject of controversy, these measures are sparking debate and concern among policymakers, legal and public health professionals, international organizations and civil society, on whether criminal law is applicable in such cases and if such application is accomplishing or damaging public health goals such as universal access to HIV prevention, treatment, care and support.

    Addressing these issues, UNAIDS brought together a range of stakeholders in Geneva for a three-day international consultation (31 October – 2 November) to discuss the apparent trend of criminalization of HIV in the context of national responses to AIDS.

    The purpose of the consultation, co-hosted by the UNAIDS Secretariat and UNDP, was to foster dialogue and provide an opportunity to reach an understanding of what constitutes appropriate application of criminal law to HIV transmission, if at all, given public health and human rights imperatives. Participants in the meeting included parliamentarians, members of the judiciary, criminal law experts, civil society representatives and people living with HIV, alongside representatives of WHO, ILO and the Office of the UN High Commissioner for Human Rights.

    Consultation participants expressed concern about the apparent rise in the number of cases in which people living with HIV have been criminally charged for transmitting HIV, or engaging in acts that risk transmitting HIV. In some cases, criminal charges have been laid for conduct that is “perceived” as risking transmission, but where no real risk exists, and sometimes with very harsh penalties imposed. Participants also expressed concern that there are jurisdictions moving to enact or amend legislation specifically to criminalize transmission and exposure. While noting that many legislators may be acting out of good intentions, consultation participants stated clearly that such laws are not an effective way of dealing with the transmission of HIV.

    “Like in the early years of the epidemic when I declared that we have now ‘HIL – Highly Inefficient Laws’, when there were the proposals for testing everyone in society, we now have a new wave of HIL. And it’s a wave that’s coming particularly in Africa, but also in other parts of the world,” stated Justice Michael Kirby, judge in the High Court of Australia, in the concluding session of the consultation.

    While little is known about the impacts of criminalizing HIV transmission, many are concerned that it may have a negative impact on the uptake of HIV testing and access to HIV prevention, treatment and care services. Sensational media reports can exacerbate stigma and discrimination, and jeopardize HIV prevention strategies currently in place. “Applying criminal law to HIV transmission has a heighten role in stigmatizing HIV, it is ineffective and public health strategies are better used to advance HIV prevention,” said Justice Edwin Cameron, Supreme Court of Appeal, South Africa. Furthermore, there is also concern that criminal proceedings may compromise basic civil rights such as the right to privacy, especially among the most vulnerable populations.

    Recommendations from the meeting will inform the finalization of UNAIDS’ policy position and other guidance documents on the criminalization of HIV transmission. “A clear message from the meeting was that criminal law is a very blunt tool to deal with HIV,” said Seema Paul, UNAIDS Chief of Policy Coordination. “The real goal of policy makers is preventing new infections but, in fact, criminalizing HIV transmission – excepting in a very small sub-set of cases dealing with retributive justice – will create disincentives for learning about one’s HIV status and accessing health and other services,” she added.