Canada: Criminalising HIV may only fuel the epidemic

An excellent article published today in the online edition of Canada’s gay newspaper, Xtra, examines the impact of criminal prosecutions for HIV exposure (and transmission) in the country with currently the most prosecutions per capita in the world (that we know about, at least).

I must admit I may be somewhat biased about the article, since the writer, Shawn Syms, interviewed me for it; however, it does also include an interview with Richard Elliott of the Canadian HIV/AIDS Legal Network.

 

Criminalizing HIV may only fuel the epidemic

Laws create disincentive for testing

Shawn Syms / Xtra.ca / Thursday, July 17, 2008

Want to know a great way to increase the spread of HIV? Criminalize it.

In Canada, a person with HIV can be put in jail if they have unprotected sex with someone who didn’t ask about their HIV status. This means that HIV-negative people have the power to seek prosecution of HIV-positive people over sexual choices they made together, even if no HIV transmission occurs at all.

On first glance, this may sound fair. After all, isn’t the person with HIV being dishonest, hiding information that any HIV-negative person deserves to know so they can avoid hopping in the sack with them in the first place? If you judge by media coverage, or common public sentiment, or even the views of many gay men, you might agree. But things aren’t that simple.

The Supreme Court decided a decade ago that a person with HIV can be prosecuted if they engaged in sex that involved a “significant risk of serious bodily harm” — but the question of which activities meet that criteria and which don’t hasn’t been definitely settled.

If there are unanswered legal questions, the lack of community agreement is just as apparent. I think there’s a shared ethical consensus that it’s malicious to lie about HIV status to convince someone to have unprotected sex. Beyond that though, opinions are all over the map.

Some negative gay men assert their own responsibility to play safe and don’t discriminate based on known or perceived HIV status — while others express righteous indignation that anyone would engage in even the safest of activities without informing others if they have HIV.

Some men with HIV feel that if they disclose, any behaviour that both parties agree to is acceptable. Others think playing extra safe should be enough. And significant numbers of people with HIV actually support criminalization. Can we all come closer together as a community on these questions? And does criminal prosecution under the law offer us any assistance in that goal?

“These laws harm public health — and they don’t help anyone,” argues Edwin Bernard, a writer and researcher who studies HIV criminalization laws around the world. “The subtle but very real impact of these legal cases is that people with HIV don’t have the same sexual and reproductive rights as others.”

If you read the judgments in court cases of so-called “reckless” HIV-transmission risk — more and more of which are prosecuting gay men — they seem to send the message that people with HIV are completely responsible for protecting the sexual health of others, and that HIV-negative people don’t have any personal responsibility for the choices they make.

That’s not exactly the case, says Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, which has advocated for the legal rights of people with HIV since 1992. He points out the kinds of charges levelled in these cases — such as “criminal negligence causing bodily harm” — are specific to criminal law, which is only concerned with the innocence or guilt of the accused person. In fact, the responsibility of the other partner when it comes to safer sex isn’t even really considered.

So why could criminalizing the HIV-transmission risk actually increase the threat of HIV? Because it encourages the people at very greatest risk of passing HIV on — those who don’t even know they have it — to avoid testing, diagnosis and treatment.

“This creates yet another disincentive for people to get tested,” says Elliott, since knowing your HIV status makes you a target for criminalization — whether or not you consistently practice safer sex. That’s because there is very little to protect someone from an HIV-negative person lying about them — and it’s left to the judge to decide who is telling the truth.

Often the name of the person with HIV is dragged through the media in terms that are sensational at best, and inaccurate at worst — as was seen in the recent case of gay man Ryan Handy. The London Free Press headline blared “HIV positive man spread virus, jailed 8 months,” even though he didn’t do that at all. Consistently, the name of the accuser is withheld — potentially creating a safe space for malicious liars to attack responsible people with HIV with relative impunity.

“What’s happening in Canada is a witch hunt against HIV-positive people,” says Bernard. He points to the Quebec case earlier this month where a woman with HIV pressed charges against her boyfriend for domestic assault. The boyfriend countered that the woman had exposed him to HIV, even though the woman said she disclosed her HIV status early in the relationship and claimed the sex had been protected all along.

“This is a revenge case,” says Bernard. “Any time anybody has a grudge against an HIV-positive person, it is now possible to make a complaint and it will always end up being a ‘he-said/she-said’ or ‘he-said/he-said’ case in court.”

I’d like to expect that all judges and prosecutors are free of bias and well-informed about the real risks of HIV transmission — but that may be a foolish hope. Two months ago an American man with HIV was sentenced to 35 years in prison for spitting on someone. Late last year, an Ontario judge insisted that a witness with HIV and hepatitis C wear a protective mask in the courtroom despite zero risk to anyone in the room. And prosecutors have provided judges and juries with inaccurate information about the ability to medically determine which person infected which in HIV-transmission cases.

“So many of these cases are one person’s word against another — and juries are predisposed against HIV-positive people,” adds Bernard. “Condom use and disclosure must be proven. But unless people start using mobile phones to video the moment of disclosure and the condom being put on… it gets ridiculous.”

There is a common perception that people diagnosed with HIV represent a serious risk to others. But the far more grave threat lies elsewhere — with people who believe themselves to be HIV-negative and who, with little risk of legal prosecution, go around having unprotected sex with anyone they want, perhaps with little discussion of sexual risk and responsibility.

Placing a legal burden on people who know they are HIV-positive goes after the wrong people the wrong way. These women and men have taken the responsibility to get tested and are most likely to be on treatment, which itself significantly reduces their likelihood of infecting others. And when we punish them and throw them in jail, we put them in a situation where they have less access to medication, safer-sex supplies or clean needles — creating a dire epidemic of HIV and hep C in our prison system among people who will eventually be released in far worse shape.

Meanwhile, Bernard points out, studies in Canada and the US have concluded that people who don’t know their status — who may believe themselves to be negative — are the ones responsible for the majority of new HIV infections. “Nearly all new HIV infections can be attributed to HIV-positive persons unaware of their HIV status,” he wrote in an analysis of multiple research studies for the online resource Aidsmap.

This is because these people are more likely to practice unprotected sex and because the amount of HIV in someone’s system is dramatically elevated at the point of initial infection — making it easier to pass the virus on. (The ruling in one Canadian case has suggested these people may be legally liable as well, but this has not been definitively confirmed by the courts.)

All this means that practicing safer sex — rather than mandating that all people with HIV always disclose their status — is the best bet for everyone who wants to remain HIV negative. Disclosing HIV status doesn’t protect positive men and women from legal action, and it opens them up to discrimination, stigma and danger.

That can include the threat of physical violence. “Do I risk getting beaten up by disclosing? Or do I risk getting criminally prosecuted if I just stay quiet?” says Elliott of the situation faced by some people with HIV. “This is a really good example of how the criminal law is of very little use in a really complicated human interaction.”

“Disclosure is not the answer,” says Bernard. He points to the case of David Summers, who, according to a report in the Halifax (UK) Evening Courier, violently beat and brain-damaged a man who disclosed his HIV status after sex, “leaving his victim unconscious in his blood-spattered flat.” The report did not indicate that the sex was unprotected.

Bernard has reviewed legal cases of criminal HIV transmission from around the world. In his view, Canada’s record is one of the worst. Per capita, he says, “Canada is criminalizing more people with HIV than anywhere in the world.” The punishments in the US are the most severe, and the laws in Switzerland are most “draconian” — there, unlike in Canada, using a condom doesn’t protect someone from prosecution.

Bernard and Elliott both point to the response to criminalization in England and Wales as hopeful. The UK Crown Prosecution Service developed a guidance document to advise prosecutors on HIV criminalization cases, incorporating input from AIDS service organizations. But Elliott cautions that the comparatively decentralized nature of the Canadian system makes a similar response here unlikely.

Is there any way out of this mess? “The fewer of these laws there are, the better off we will be, in terms of the health of the public at large,” argues Bernard, suggesting that criminalization be replaced with a renewed focus on safer sex for everyone and testing, diagnosis and treatment for people who do acquire the virus. “HIV is everybody’s concern and sexual health is everybody’s responsibility.”

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

16/07/2008

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 aidsmap.com 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.”

Australia: New booklet clarifies that disclosure – even with condoms – is mandatory in NSW

A new booklet, ‘Disclosing your HIV status’, produced by the New South Wales HIV/AIDS Legal Centre (HALC) highlights that both public health and criminal laws mandate that diagnosed HIV-positive people in NSW must disclose their HIV status prior to any kind of sexual contact, even when condoms are used.

Under the NSW Public Health Act 1991, if you are HIV positive you are legally required to disclose your HIV status to a person before you have sex with them. Sex in this context refers to any form of vaginal or anal intercourse or oral sex.

It is no defence that the other person should have asked you about your HIV status or that they should have worn a condom or practised other safe sex procedures. You are still legally required to disclose your HIV status.

It is no defence if you wear a condom or practice other safe sex procedures without telling them of your HIV status. It is no defence either, if the social situation makes it difficult for you to disclose, for example if you have anonymous sex.

Because of the nature of this type of offence, there may be problems of proof as to whether you disclosed or not. Often it can be one person’s word against another.

The penalty for non-disclosure under the Public Health Act is a
maximum fine of $5,500.

There are also more serious offences relevant to non-disclosure of HIV status. Under the NSW Crimes Act 1900 it is a crime to deliberately, recklessly or negligently transmit or attempt to transmit HIV. This carries a sentence of up to 25 years imprisonment. Or, the crime of grievous bodily harm may be applied which carries up to 7 years imprisonment.

These criminal offences are based on the principle that an HIV positive person has the responsibility not to infect or put another person at risk of infection. This is a complex area of law. For more information about criminal charges relating to HIV infection of others, contact the HIV/AIDS Legal Centre (HALC).

Under civil law a person may also be sued for damages by an infected person, for deliberately, negligently or recklessly infecting them.

Wearing a condom or using another safe sex procedure would be a strong defence against the criminal charges or civil claim. Although it’s the law, the HIV/AIDS Legal Centre (HALC) doesn’t believe you should be penalised for non-disclosure if, when you had sexual intercourse, you practised safe sex. For more information on this issue, contact HALC.

The story alerting me to the existence of the booklet, from Sydney’s gay newspaper, The Sydney Star Observer, is below.

I have also obtained a pdf copy of the booklet from HALC, and have made it available for download for seven days (until May 20th 2008) from here.

After that date, you should contact HALC directly for a copy.

HIV LAW: CONDOMS ARE NOT ENOUGH
by Harley Dennett
Sydney Star Observer – Issue 917 – Published 8/05/2008

Anonymous sex and condoms are no defence for failing to disclose one’s HIV status to a person before having sex, a new booklet launched this week by High Court Justice Michael Kirby advises.

But almost anyone else – like an employer, health insurer, sporting team – doesn’t need to know, according to the new publication by the HIV/AIDS Legal Centre, aimed at clarifying contradictory public health and disclosure laws in NSW. Several men were charged under similar laws in other states last year.

One set of public health laws, with a maximum penalty of $5,500, allows no defence for not disclosing before anal or oral sex contact occurs, even if the situation makes this difficult. But reckless non-disclosure under the Crimes Act can carry a 25-year sentence, but under that Act safe sex could be used as a defence.

“There are some circumstances that the law requires you to reveal it, like before sex and in certain professions or sports like boxing, but by and large you don’t have to reveal your status,” Kirby said at the launch on Tuesday.

“That’s a good thing because there are no really efficient privacy laws in Australia to protect everybody. Even in our relatively enlightened country the fact people know you are HIV-positive can sometimes be a bad thing for a person to live with.”

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)
OPINION
21 March 2008
Posted to the web 21 March 2008

By Augustin Ruzindana
Kampala

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.

    Intent:     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 Xtra.ca, Part 1

    Ryan Handy Interview with Xtra.ca, Part 2

    Ryan Handy Interview with Xtra.ca, Part 3

    The story of an HIV convict

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

    Matt Mills / Xtra.ca / Thursday, January 31, 2008

    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.

    Matt Mills is Xtra’s associate publisher and managing editor.

    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.