Brazil: Health ministry says no to criminalisation following two high-profile prosecutions

Brazil’s Ministry of Health is preparing a public statement in which it recommends that prosecutions for negligent or reckless HIV exposure or transmission cease. Rather, only intentional transmission where both intent and transmission are proven, in accordance with UNAIDS guidance, should ever be prosecuted. The statement follows two high-profile prosecutions in São Paulo.

I first heard of this yesterday when the legal correspondent of Veja Magazine, the largest circulation magazine in Brazil (and fourth largest in the world), contacted me for information about other countries’ approaches to criminalisation for an article she is writing about the issue.

She told me that the first prosecution actually took place in 2004, but that the case has become a national issue since the man’s retrial, which ended two weeks ago. The case involves a married man who was charged with attempted murder for not disclosing his HIV status to his mistress during their three year affair, and who subsequently tested HIV-positive. His wife of 25 years knew he was HIV-positive and they always used condoms, and she is not a complainant. In the first trial, the Grand Jury found him guilty of attempted murder and he was sentenced to eight years in prison. This was upheld on appeal, but a second appeal based on a legal technicality led to a second trial in which he was charged, and found guilty of, the lesser charge of assault and sentenced to two and half years – time he had already served.

A second case involves another heterosexual man who has also been charged with attempted murder for having unprotected sex without disclosure with three women, two of whom subsequently tested HIV-positive. This case is ongoing and awaiting a decision from the Supreme Court.

What is significant is that Brazil’s government appears to be on a collision course with the judiciary. Although my Veja correspondent was vague about the Ministry of Health’s statement (she had not yet been able to interview them), I found this report from Odia/Terra online published on Tuesday which includes a quote from the Ministry of Health’s Eduardo Barbosa

According to Eduardo Barbosa, Deputy Director of the Department of STD, AIDS and Hepatitis from the Ministry of Health, in order for HIV transmission to be considered a crime the court must, in addition to proving intent, consider the existence of “psychosocial factors”, the stage of treatment of disease and the responsibility of the partner to protect themselves.

A ministry statement goes against a global trend to criminalize those who transmit the disease, according to Barbosa. “Some countries end up adopting such measures as if it were possible to isolate and blame in order to control the epidemic.”

This fits well with Brazil’s history of focusing on a human rights approach to HIV. In fact, the government is about to pass a new (protective) law which will punish anyone who discriminates against someone with living with HIV with up to four years in prison.

Bill 6124/05 criminalises anyone who promotes any act of discrimination, exclusion or restriction of people living with HIV in schools and kindergartens; in the workplace; and in healthcare settings. It also criminalises third party disclosure of someone’s HIV-positive status in these settings.

O reporter.com reports that

Bill 6124/05 was approved unanimously today [17 November] by the Committee on Constitution and Justice (CCJ) of the House of Representatives. The approval of the project, which was approved by the rapporteur, Congressman Regis de Oliveira (PSC-SP), will benefit about 630 thousand infected in Brazil…

“Nearly a decade after we first attempted to pass this law, the House of Representatives is finally close to creating a law that punishes any act of distinction, exclusion or restriction to people who are HIV-positive,” said Regis de Oliveira. During the debate, the proposition, which is being handled in the Committee on Constitution and Justice (CCJ), had the support of most lawmakers…

“It is important that society should identify the various forms of discrimination in order to eliminate them, helping to respect, protect and fulfill human rights. Discrimination threatens the rights of these citizens live in dignity, so that often they become victims of irreversible psychological damage, ” he concludes.

The bill now goes to the vote on the House floor.

I should have more details on the cases and the government’s official response next week.

New Zealand: ‘HIV predator’ is named; seventh complainant adds further charges

The man dubbed the ‘HIV predator’ had his name and face splashed all over New Zealand’s media today in what has become the biggest criminal HIV transmission case in NZ history. There are now seven complainants (six men, one woman) of whom five are alleging that the man was source of their HIV infection.

As well as his name and several photos, today’s report on GayNZ.com includes many of the details left out of their earlier reporting, including his online dating profile nicknames and the name of the street he lived on in Auckland. They also highlight that HIV testing centres are anticipating a rise in HIV testing today and over the weekend as people recognise the man. But surely this is as much a ‘fishing expedition’ as a public health warning.

Today’s story on TVNZ.com includes a quote from Bruce Kilmister, chief executive of NZ’s PLHIV organisation, Body Positive

[Kilmister] said the alleged charges significantly changed a lot of people’s lives. “Everybody who has had an association with him in the past should come forward for a test. But it’s also a timely reminder that everybody has a responsibility to keep themselves safe and follow safe sex practice. HIV positive people have an added responsibility not to transmit the virus, and the best way they can do that is to have safe sex.”

To put the case into perspective, according to data from New Zealand’s Ministry of Health (AIDS New Zealand Issue 63 – March 2009 ) only 184 people were newly diagnosed with HIV in 2008 – of whom 91 were acquired via sex between men, but only 70% of these were acquired in New Zealand, most of whom lived in Auckland – and this was the highest number ever recorded. Since there are now five gay men (aged between 17 and 31) who claim the accused man infected them, this ‘cluster’ alone would represent around 8% of new diagnoses.

Adding to the panic is the 19 year-old female complainant (who has not tested positive). Between 1999-2008 there were only 52 women diagnosed with HIV that was heterosexually acquired in New Zealand. The TVNZ article continues

The fact a woman had allegedly been affected raised concerns the virus may have spread into the heterosexual community. “The reality is that most women think of the pill as the beginning and end of safe sex. It needs to be a message that goes right across the broad spectrum,” [said Kilmister.]

If this man is the source of five (or possibly more) infections, this certainly is a public health concern, and the criminal justice system involvement is, indeed, a result of the failure of public health. The call for new and better public health laws in New Zealand are understandable, and certainly would be better than the current system which required media and CJS intervention.

However, last year the NZ Ministry of Health published a study examining HIV prevalence in New Zealand, both diagnosed and undiagnosed (AIDS New Zealand Issue 62 – November 2008) which found a prevalence of 4.4% amongst men who have sex with men attending sexual health clinics, of whom only half were diagnosed. Undiagnosed people can’t disclose – and cannot be publically (or even privately) named and shamed as a way to warn others about specifically avoiding them. Undiagnosed people may also be having as much – or more – ‘promiscuous’ sex as the so-called ‘HIV predator’.

Earlier in the week, TVNZ ran an in-depth look at the case and interviewed Michael Stevens, the man who orginally brought the allegations to GayNZ.com and Simon Harger-Forde, director of HIV prevention at New Zealand AIDS Foundation. It makes for uncomfortable viewing by making patient confidentiality appear to be something bad, and conflating two issues (non-disclosure resulting in HIV exposure or transmisison being a criminally liable act and the lack of an effective public health response) without any examination of the issue of shared responsibility for sexual health. Only at the very end does Mr Harger-Forde say that laws don’t protect anyone, and that everyone should be using condoms.

Finally, an interesting blog posting from a feminist commentator, which highlights other concerns – that this case will end up leading to further stigmatisation of gay men and people living with HIV in New Zealand, and concludes:

Safe sex is crucial, of course, but it’s also crucial that the … case doesn’t become an exercise in victim-blaming, with homophobic overtones. And it’s also important that [his] behaviour doesn’t prompt a backlash against HIV positive people, who have the same needs for affection, companionship and intimacy as the rest of us.