US: Judge gives HIV-positive pregnant woman longer prison sentence ‘to protect unborn child’ (updated)

A judge in Maine has more than doubled the prison sentence of an HIV-positive woman in order to protect her unborn child, according to a report from The Bangor Daily News. The judge admits he based the decision entirely on the woman’s HIV status.

The 28 year-old woman, from Cameroon, had previously pleaded guilty for having fake documents. She was not legally entitled to be in the United States and was planning to seek asylum. The case has now been taken up by the Maine Civil Liberties Union.

Both prosecution and defence had asked U.S. District Judge John Woodcock to sentence the woman to 114 days, or time served (she has been in custody since January 21st). However, citing the welfare of the woman’s unborn child, the judge sentenced her to 238 days (to coincide with her due date of August 29th).

Woodcock told [the woman] at her sentencing on May 14 in U.S. District Court that he was not imposing the longer prison term to punish her further but to protect her unborn child. He said that the defendant was more likely to receive medical treatment and follow a drug regimen in federal prison than out on her own or in the custody of immigration officials. The judge also said that his decision was based entirely on her HIV status. If Tuleh were pregnant but not infected with the AIDS virus, he would have sentenced her to time served.

[…]

In sentencing Tuleh, Woodcock said that the law required he take into account a defendant’s medical condition in fashioning a sentence. Although a defendant’s medical condition most often is used to lower a sentence, the judge found that there was nothing in the federal sentencing guidelines to prevent him from imposing a sentence longer than the guidelines recommended because of Tuleh’s HIV status.

“My obligation is to protect the public from further crimes of the defendant,” he said at Tuleh’s sentencing, “and that public, it seems to me at this point, should likely include that child she’s carrying. I don’t think that the transfer of HIV to an unborn child is a crime technically under the law, but it is as direct and as likely as an ongoing assault.

“If I had — if I were to know conclusively that upon release from imprisonment a defendant was going to assault another person,” Woodcock said, “I would act in a fashion to prevent that, and similar to an assault, causing grievous injury to a wholly innocent person. And so I think I have the obligation to do what I can to protect that person, when that person is born, from permanent and ongoing harm.”

The Maine Civil Liberties Union told The Bangor Daily News.

“We are enormously sympathetic to the desire to ensure that Ms. Tuleh receives adequate health care, including prenatal care,” Zachary Heiden, legal director for the MCLU, said in an e-mail. “Federal immigration law has developed in truly arbitrary and punitive ways. Here, even a federal judge could not get assurances that Ms. Tuleh would not be deported before the end of her pregnancy. He could not get assurances she would not have her medical care arbitrarily cut off. That is wrong.

“Judges cannot lock a woman up simply because she is sick and pregnant,” he said. “Judges have enormous discretion in imposing sentences, and that is appropriate. But jailing someone is punishment — it is depriving them of liberty. That deprivation has to be justified, and illness or pregnancy is not justification for imprisonment.”

The sentence was objected to primarily by the prosecution, however.

Assistant U.S. Attorney Todd Lowell objected to Woodcock’s decision. Lowell said Tuleh’s sentence set a precedent that “could affect the many other sorts of cases that come before this court in which defendants have serious medical conditions. In the end, Bureau of Prisons custody is designed to incarcerate,” Lowell told Woodcock at the sentencing hearing. “Incarceration is mostly designed for the purpose of punishment, deterrence and community protection. The Bureau of Prisons is not well-designed to accomplish necessarily the end of providing medical care to a defendant and her unborn child.”

The US Attorney’s office has appealed the sentence to the 1st U.S. Circuit Court of Appeals in Boston, but arguments will not be heard until late July. The MCLU is also planning on submitting amicus curiae briefs on the issues of HIV, pregnancy, immigration law, and prisoner rights.

Update: June 18th The woman will now give birth in hospital rather than prison after Judge Woodcock heard new evidence that she will be looked after in the community, according to a report in The Bangor Daily News.

“I recognize that the sentence turned out to be controversial,” he said. “I can certainly understand how some have misinterpreted what the court intended to do in this case.”

Woodcock said that what he had wanted to do was “to step in between the prison system and the social [safety] net” to ensure that Tuleh remained healthy and that the child was born healthy.

“At the time of the sentencing, I had no clear understanding of what the community could do,” Woodcock said.

[…]

A three-judge panel in Boston has agreed to hear the appeal on an expedited schedule, but oral arguments are not expected to be held until late July and early August. In addition to appeals filed by the prosecution and the defense, a group of 15 individuals and organizations have filed in Bangor and Boston a “friend of the court” brief in support of Tuleh.

Woodcock said Monday that he found the brief “articulate and helpful” in making his decision about whether to release Tuleh on bail.

More details at the National Advocates for Pregnant Women site here

Click here to see the results of the paper’s poll asking whether a judge should be able to impose a longer sentence in order to protect an inmate’s unborn child?

New Zealand: HIV confidentiality laws may change due to ‘HIV predator’ case

In my last entry on the alleged NZ ‘HIV predator’ case – when I highlighed that GayNZ.com was pushing for the arrest and prosecution of an HIV-positive gay man in Auckland who allegedly meets men online, ‘persuades’ them to fall in love with him and then to have unprotected sex – I suggested this may turn out to be New Zealand’s version of the Michael Neal case. Turns out I was right, both in terms of the mainstream coverage and the potential political fallout.

The New Zealand government is now considering changing the 1956 Public Health Act to allow for health authorities to inform police if they believe an HIV-positive person is putting others at risk. According to the New Zealand Herald, the moves are being supported by New Zealand’s major HIV charity.

Health authorities were told the HIV-positive man was allegedly infecting people in Auckland and Wellington with the virus months ago but were not obliged to tell police, the Sunday News reported. Under the Public Health Act 1956 – which pre-dates HIV by many years – health professionals are not required to disclose the fact someone is HIV-positive or could be spreading the virus. The only exception is when a clinician knows a specific person is at risk, then the Medical Office of Health can be notified.

[…]

Health Minister Tony Ryall said he would meet with officials this week to discuss the possibility of a law change.

And New Zealand AIDS Foundation‘s spokesman Simon Harger-Forde, told the paper: “I think there needs to be more power for legislative agencies to prevent harm to others.” Interesting, then, that in 2005 they produced a poster for the Pan-Pacific HIV/ AIDS Conference which concluded: “Relying on the law to protect you from HIV is a risky strategy. Disclosure does not stop HIV transmission, condoms + lubricant do.”

Not coincidentally, New Zealand’s confidentiality laws were dissected last week in a GayNZ.com feature.

The implications of an alleged HIV+ predator infecting young gay men in our communities for a year or more are sinking in, and one of the first questions to emerge is: “Why didn’t someone do something sooner?”

[…]

Under the elderly Public Health Act 1956, which could not have predicted the emergence of HIV, health care professionals are not required to disclose an HIV positive person’s identity to those authorities with the responsibility and powers to aggressively ‘track and trace’ health threats and proactively head off those threats. Therefore privacy legislation rules.

However valuable or even vital it may be, short of a court order to provide the details an HIV positive person’s information must remain locked in his personal file, accessible only to the person who put it there. And a court order is unlikely to happen without a formal police investigation which cannot happen unless a victim makes a formal complaint to the police.

[…]

Essentially, the only person who can get the ball rolling to stop the pattern of infection is one of the infected victims. And there are any number of reasons why they might not feel able to take that step. They may not even be aware that they are part of ‘a situation.’ Perhaps some less formal process can come into play?

Update: June 4th. Interesting blog entry from Kevin Hague, former executive director of the New Zealand AIDS Foundation, who concludes

Reform of the Public Health legislation to give the medical Officer of Health a more finely graded set of responses will be very welcome if and when it finally occurs, but I can’t see any case for a change to privacy law.

[Back to original posting, below]

Indeed, much has transpired since my last blog entry two weeks ago. Notably, the man in question was arrested last Thursday, according to stuff.co.nz and although he was granted interim name suppression during Friday’s hearing, he was refused bail.

Judge Bouchier said the men who had been infected would never be cured and would suffer for the rest of their lives. She said she was concerned that if the accused was given bail, he might interfere with complainants and witnesses. “He has contacted one complainant several times and asked him not to contact police. The victims are fearful of him being granted bail. I don’t believe the court could make any bail conditions which would prevent the defendant from having access to the internet and continuing internet dating. He should be remanded in custody in the public interest.”

The man is charged under NZ’s Crimes Act 1961 for wounding with intent, or reckless disregard, for allegedly transmitting HIV to three men, aged 17, 24 and 26, and attempting to infect a fourth man, aged 31.

According to Judge Bouchier, the maximum penalty is seven years in prison for attempting to infect with HIV, and 14 years for transmitting HIV.

US: Excellent Michigan Messenger article on abuse of ineffective HIV disclosure laws

Here’s a truly excellent, and sobering, article from the Michigan Messenger – an independently-produced political news daily featuring original and investigative reporting – that spells out in an interview with an African-Amercian man convicted under the state’s HIV exposure law – just how these laws are open to abuse, both by individuals and the criminal justice system itself.

In brief, Michael S. Holder was accused of not disclosing his status before having sex by his (white) ex-girlfriend. Five members of the jury admitted during jury selection that they were prejudiced either against inter-racial relationships or against African-American men, but were allowed to remain on the jury. The complainant retracted her original testimony on the stand, and admitted that Mr Holder had, in fact, disclosed his HIV status before they had sex.

On Dec. 3, 2001, the jury of 11 white women and one white man — including the five jurors who noted their opposition to inter-racial relationships on their questionnaires — voted to convict Holder of violating the disclosure law. He was sentenced to 10-15 years in prison, three times the recommended sentence. That sentence was reduced in 2003 to 7 1/2 to 15 years because of an appeal that the state Attorney General’s office failed to respond to. But Holder’s pleas for justice in regard to incompetent counsel were denied by the Michigan Court of Appeals and the Michigan Supreme Court. A writ of Habeas Corpus filed in federal court was denied and is currently slated for a hearing in the U.S. Court of Appeals for the Sixth Circuit in June.

The article also includes a brief history both of how Michigan’s HIV exposure laws came to be enacted, and US HIV-specific laws in general.

In 1990, the Ryan White Care Act required states receiving federal funds for the assistance of those impacted by HIV to certify the state had laws to prosecute HIV transmission. By the time the bill was sent for reauthorization in 2000, this mandate was removed, because 32 states had passed laws specific to HIV, and all 50 had certified they had criminal laws to address HIV transmission.

HIV is the only virus with a felony attached to it in Michigan. Those persons with human papillomaviruses, which have been linked to cancers, herpes, Hepatitis B and C, and other viral or bacterial infections are not required under state law to disclose their infection to potential sexual partners.

[…]

State Sen. Samuel Buzz Thomas, a Detroit Democrat, toyed with the idea of introducing legislation to expand the disclosure law to include persons infected with Hepatitis B and/or C last session. But the legislation was never introduced, his chief of staff Dennis Denno said. Thomas declined multiple requests for an interview on this topic.

It also includes interviews with Lance Gable, associate professor of law at Wayne State University; Bebe Anderson, Lambda Legal’s HIV project director; Jay Kaplan, staff attorney for the LGBT project of the American Civil Liberties Union of Michigan; and, most strikingly, a Michigan Senator.

“By criminalizing sexual activity, it hasn’t been able to protect the public,” said State Sen. Hansen Clarke, a Detroit Democrat. “We’ve [the legislature] got to look at a different policy because the current one is not effective. It could be something counterproductive, but I have to research that more.”

Click here to read Michigan’s HIV disclosure law: Overly broad and open to abuse, by Todd A. Heywood.

US: Man at centre of 2007 XDR-TB alert sues CDC

I was alerted to this rather interesting piece of news by a regular reader from Canada, who points out the incredible differences between the way TB exposure and HIV exposure are treated. “Why was this guy not charged with some form of assault?” he wonders.

In 2007, the Centers for Disease Control and Prevention (CDC) used its isolation powers for the first time since 1963 after Andrew Speaker, a 31 year-old lawyer from Atlanta, took two transatlantic flights, as well as numerous shorter flights around Europe, despite being initially told that he was infected with multi drug-resistant tuberculosis (MDR-TB) and, once further test results were available, XDR-TB. He was told on his diagnosis with MDR-TB that it was “preferred” that he didn’t fly. Once he was diagnosed with XDR-TB he was told in no uncertain terms that he must not fly.

On Tuesday, according to an Associated Press article, Mr Speaker filed a lawsuit in federal court in Atlanta on Tuesday, which

claims the Centers for Disease Control and Prevention damaged Speaker’s reputation and made him the target of death threats. The lawsuit, which says he and his new bride split up because of the stress, seeks unspecified damages and court fees. It accuses the CDC of “unlawfully and unneccessarily” revealing Speaker’s private medical history and other sensitive information during an extensive media blitz in May 2007. “This is about setting the record straight,” Speaker said in a statement Wednesday. “Having my confidential medical history unnecessarily splashed across the world took a huge toll on me personally and professionally.”

Something is very wrong with this picture.

Germany: Media ban ignored, more details emerge in Nadja Benaissa case

Update: Nadja Benaissa may soon be out on bail, according to an English-language report in The Local that summarises a story in today’s Stern.

Nearly a week after being arrested, the 26-year-old’s lawyer Christian Schertz is talking with the state prosecutor in Darmstadt, to try to get her out of prison.

Ger Neuber, spokesman for the state prosecutor said, “We are trying to find a solution to this investigative custody situation with the defence.”

But Schertz criticised the information about her HIV status having been released by the state prosecutor. He also told Stern magazine that the argument for keeping her in custody – that she might otherwise reoffend – had been made irrelevant by the fact that everyone in the country must now know of her HIV status.

[…]

He would not suggest a date on which she might be released, but said it was unlikely to be Thursday.

Bild editor-in-chief, Kai Diekmann has today published a scathing editorial, ‘Enemies of press freedom’ criticising the Berlin judge that issued an injunction against them reporting further on Nadja Benaissa’s arrest for alleged criminal HIV exposure and transmission.

Consequently, Bild continues to run stories about the case. It claims that in June 2008, a music industry manager pressed charges against the singer. Before he did so, he had made several unsuccessful attempts to approach Nadja. The man then went to the police, telling them he was infected by Nadja and that she hadn’t disclosed before unprotected intercourse.

It then quotes Darmstadt public prosecutor Ger Neuber.

“The criminal charges against her were pressed at the end of June 2008. In cases like this, we usually try to approach the accused first. The police tried to do so by the end of August without any result. After that, the singer’s lawyer came forward. He asked to get access to our files in October and returned the files in November 2008 with a note saying he wanted to consult with his client. There was no further reply. That was when we started further investigations, which showed in the late stages of the proceedings, that two other men are supposedly to have had unprotected intercourse with her. That is why she is now under strong suspicion with the risk of recurrence.”

Whilst some other Berlin-based papers, such as the broadsheet Berliner Zeitung, only refer to “a pop star”, using neither her name nor her image, and talks about a previous case in Berlin from 2000, the tabloid BZ today ran an interview with an ex-boyfriend, Abdou Mbodji, who says he was with her between 1998 and 1999, that she had previously had a drugs problem, and that she was diagnosed in March 1999.

Nadja had an abscess under her arm. One day it hurt so much that I brought her to the hospital. There was also an AIDS test. Nadja burst into tears. I just took her in my arms and we both cried. I had an AIDS test the next morning, which was negative.

In the English-language Bild, which ran a different story today from its German counterpart, public prosecutor, Ger Neuber, is quoted as saying:

An investigation to see whether the virus traces match up with Nadja is now under way.

However, to focus on the idea that immunological and virological tests will determine whether Ms Benaissa actually infected the male complainant who is HIV-positive, is naive. Those of us with knowledge of this area know that this is extremely difficult to prove but that there is widespread judicial ignorance about this.

A second story in German-language Bild published today summarises the reaction of her fans – which range from total support, to disbelief, to condemnation. Examples include:

No matter what happens, your fans are there for you. Even if you have tested HIV-positive , it doesn’t change you as a human or a musician.

I have nothing against people who are HIV-positive …, but I think it’s irresponsible, like playing Russian roulette. This is intentional injury and must be punished.

Germany: Nadja Benaissa’s lawyers win injunction to prevent further media reports

Lawyers for No Angels singer, Nadja Benaissa, have sought and won an injunction against Bild, the Berlin-based tabloid that broke the news of her arrest for alleged HIV exposure and transmission, that forbids the paper to run any further stories about her.

Bild has been the primary source of the hundreds of news stories about the case that have so far been published worldwide, including many with inaccurate and stigmatising headlines such as this one from Australia: ‘Popstar ‘deliberately infected partners with HIV’

Earlier today Bild ran an interview (in English) with a man who claims he had unprotected sex with Ms Benaissa without her disclosing her HIV status. It is filed under ‘celebrity gossip’.

A press release issued yesterday (in German, unofficial English translation below) by Ms Benaissa’s lawyer, Christian Schertz, made it clear that her privacy had been grossly violated by the Darmstadt public prosecutor’s office.

The press release of the prosecution is not in accordance with the federal media laws. The media have learned about the arrest of our client through an indiscretion.

Furthermore, the balancing of conflicting interests should have led to the conclusion not to publish an official statement of the charges. Currently, it is only about an ongoing investigation, so that the principle of presumption of innocence must be observed not only by the state, but also by the media.

Against this background, we believe that reporting on this is unlawful, if and as long there are no charges. This is even more true, since the circumstances that are now subject of the accusation go back several years and refer to the privacy of our client. There is no evidence of any kind of current criminal behaviour of our client.

Moreover, to this day, there is no proof whatsoever that our client is responsible for the infection with HIV of another person.

Against this background, and on behalf of our client, we ask you to consider these circumstances. Furthermore we are expecting our client to be released from remand immediately, since there are no reasons for detention. Moreover we believe that remanding our client in custody is an overly proportionate action.

Today, the Berlin District Court issued an injunction against Axel Springer, publisher of Bild, ordering it not to report on the case or use her image, or face a €250,000 fine. It appears that at least some other media in Germany have followed suit – public broadcaster ARD pixellated Ms Benaissa’s face when they reported the injunction on this evening’s news, although RTL have just run a tabloid-style feature that included an interview with a ‘friend’ who said that Ms Bernaissa allegedly was aware of her HIV status even before she auditioned for TV talent show, Popstars, in 2000. Given that she gave birth to a daughter in 1999, it is possible that was she diagnosed, at 17, during routine prenatal screening.

In related news, Germany’s main HIV organisation, Deutsche AIDS Hilfe, yesterday issued a press release (in German, unofficial translation below) some of which has been widely quoted in today’s news stories in Germany.

Marianne Rademacher, spokeswoman of Deutsche AIDS-Hilfe states: “Nadja Benaissa should be released as quickly as possible. According to the information available to us so far her arrest is a disproportionate action of the Hesse judiciary. We urge the media to report objectively about the case and not to prejudge Ms Banaissa. The responsibility for allegedly unprotected sexual intercourse is being pushed towards Ms Benaissa alone, without asking about the co-responsibility of her sexual partners. But the German policy towards fighting HIV/AIDS is considered especially exemplary for acting on the assumption that everyone is responsible for themselves and for its solidarity and its fighting any kind of stigmatisation. The Hessen judiciary obviously want to make an example of her. But the judiciary must not be a protagonist in German HIV prevention.”

Since the 1990s, convictions in the context of HIV transmission have increased. This had implications on the prevention work in the field of HIV/AIDS. But high-profile prosecuting of people with HIV/AIDS can lead to the illusion of the state being in control of the problem. This might lead people to neglect means of precaution (safer sex). Criminal prosecutions will not work as a deterrent in this case. For only a person who knows that he or she is HIV positive can be prosecuted. Criminalising HIV transmission could possibly make people prefer not to get tested, out of the fear of repression. The DAH will continue to act on the assumption of shared responsibility of all parties in consensual sexual contacts. This has been and remains the basis of our work.

Another DAH spokesperson, Jörg Litinschuh, told The Guardian:

This case fits fantastically into the tabloid and media landscape. It centres on a famous woman, sexuality and possible guilt. It’s a form of modern witch-hunting and I hope it’s not an indication that the politics of dealing with HIV and AIDS is becoming more restrictive.”

DAH, and others, are also concerned about the way she was arrested, so publically, prior to performing at a concern in Frankfurt over the Easter weekend. The Darmstadt public prosecutor’s office claims that they had tried to arrest her at home but she was never there, and so picked a time and place that they knew they would find her. The same evening she was arrested, a Frankfurt judge issued a custody order, claiming that she might infect others if allowed to be freed on bail. She is currently being held in a one-person cell in a women’s prison near Frankfurt.

Listening online to an Irish radio chat show on the subject this afternoon, and reading stories and related articles and comments from all over the world, there’s little doubt that Ms Benaissa’s plight has brought the issue of criminalisation of HIV exposure and transmission, and debates around responsibility and disclosure, to centre stage.

Whether Ms Benaissa will benefit from this is unclear.

My concern is that the system may want to make an example out of her, as has been the case with many high profile prosecutions in other countries, despite the possibility of at least some public sympathy, given that she has a large fan base and, as a woman, cannot possibly have final say or control over the use of male condoms.

US: Nushawn Williams denied parole

Nushawn Williams, whose 1997 arrest in New York State unleashed a wave of media hysteria, and several new HIV-specific laws in the US, has been denied parole again.

He was sentenced to between four and twelve years in prison back in 1998, after pleading guilty to two counts of reckless endangerment and one count each of criminal sale of a controlled substance and statutory rape. He has been denied for parole every time he has been eligible and will now serve the full twelve years.

According to the Jamestown Post-Journal:

The parole board determined that an early release for Williams ”would be incompatible with the welfare of society and would so deprecate the serious nature of the crime as to undermine respect for the law,” according to the decision.

”Your barbaric and perverse actions committed upon your unsuspecting and defenseless victims … clearly demonstrates the extremely grave danger you pose to society,” the decision reads.

[….]

In 1997, Williams, 20 at the time, was the center of a media spectacle the likes of which Jamestown and Chautauqua County had never before seen.

Formerly a resident of Jamestown, Williams had been arrested by New York City police for selling crack to an undercover agent. In an unprecedented move Oct. 27, 1997, county public health officials went public with his HIV status since he was believed to have infected untold numbers with the disease.

At the time, authorities argued Williams knew full well he was HIV positive and could very well spread the virus to others when he had indiscriminate sex with dozens of local women, some of them below the legal age of consent. Williams maintains he was not aware of his HIV status. Some argue that even if he was aware, he did not take it seriously enough to curb his promiscuous behavior.

In the end, it was learned that Williams had infected 13 women, 11 of them in Chautauqua County, with HIV. As of October, the 10th anniversary of Williams’ arrest, all of his victims were reportedly healthy.

He is now scheduled to be released on April 13, 2010.

The case of Nushawn Williams was examined in an excellent book by Thomas Shevory entitled Notorious H.I.V.: The Media Spectacle of Nushawn Williams.

Qatar: Woman and three men on trial for criminal HIV transmission

A woman in Doha, the capital of Qatar, is on trial for either criminal HIV exposure or transmission, since it is unclear whether the three male complainants are also HIV-positive. Bizarelly, according to the only report I can find on the case, from The Peninsula, the three men are also on trial, although it is unclear exactly what they are accused of.

A criminal court here is hearing a case involving an HIV-infected woman who is accused of transmitting the killer virus to three men. Incidentally, the three victims are also accused in the case…

A witness, who works with Hamad Medical Corporation (HMC) as a senior consultant, confirmed in deposition to the court that the first accused—the woman—was treated at the hospital since she had HIV… According to him, the woman was asked to give an undertaking that since she was afflicted with the dreaded virus, she would not have intimate physical relations with anyone since doing that would mean transmitting the killer disease to others.

Another key witness in the case was from a law-enforcement agency who had interrogated the three male accused in the case who were victims of HIV. He said the trio had confessed to having had physical contact with the woman and feared that they might have come in contact with the disease. The case, according to Al Sharq, has been transferred to the court by the Public Prosecution recently.

Canada: Article exposes Canada’s Kafkaesque HIV laws

Criminal HIV exposure prosecutions are reaching Kafkaesque levels in Canada, as this report from Canada’s national gay newspaper, Xtra.ca, makes clear.

In the wake of the trial of Johnson Aziga – which continues after an Xmas and New Year break on Monday 12th January – Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Network is now concerned that Canada may begin to prosecute the 80+ individuals previously convicted of HIV exposure for murder following the deaths of their sexual partners years down the line.

The law in Canada is such an ass – and open to potential cases of blackmail and revenge – that another expert, Ryan Peck, the executive director of the HIV/AIDS Legal Clinic (Ontario) (HALCO), recommends that the HIV-positive partner asks their HIV-negative partner to sign a disclosure form before any sex.

 

The law cracks down on HIV

Murder charges are now on the table in Canada

Krishna Rau / Toronto / Friday, January 02, 2009

The growing criminalization of HIV could mean increasingly harsh treatment for those convicted of spreading the virus. Tim McCaskell, the cofounder of AIDS Action Now, says the current first-degree murder trial of Johnson Aziga — a Hamilton man charged in the deaths of two women after infecting them following consensual sex — could be an alarming precedent.

“When you develop a social zeitgeist that the solution to crime is jails and penalties and punishment then that’s how you treat an epidemic as well,” says McCaskell. “It seems to me that the fact that he’s been charged with murder is more about sensationalism and upping the ante than it is about even getting a conviction. “But if you do get a conviction on that we’re really in trouble.”

The case against Aziga is the first in Canada involving a murder charge, says Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Network. He says there have been a few previous attempted murder charges, but the circumstances were vastly different. “There was clearly assaultive behaviour, biting, spitting,” Elliott says. “It’s not been a case of consensual sex. It’s been cases where they say, ‘I hope you die,’ as they throw blood or something. This [consensual sex] is completely different unless you have a lunatic who’s deliberately trying to kill people by infecting them by having sex.”

Elliott says a conviction in the Aziga case could lead to murder charges years after someone was infected through consensual sex. “It’s possible, if the person to date has not been charged with murder, but has been convicted of aggravated sexual assault which has been the predominant charge, and then 10 years later the infected person dies.”

Elliott says he’s more worried about the possibility of charges being laid against people who infect a sexual partner without even knowing their status. He refers to a 2003 case from Newfoundland in which a couple had unprotected sex before the man tested positive. He did not disclose his status and they continued to have unprotected sex. The man was only convicted of attempted aggravated sexual assault because it couldn’t be proved that the woman was infected after his test. The case ended up in the Supreme Court of Canada.

“The Supreme Court said, ‘You might be reckless if you have reason to believe you might be infected and don’t disclose the fact,’” says Elliott. “It certainly opens the door to a case where prosecutors could argue someone was reckless if there are circumstances in which a person should have known — if they were called by a past contact or by Public Health.”

Elliott says a man in Switzerland was convicted of grievous bodily harm after he was told by a previous partner that she was HIV-positive. The man did not get tested and then infected another woman.

“You have to get into drawing lines,” says Elliott. “When should you have known? It starts to get absurd if you go down the line.”

But even if someone did disclose their positive status, they might not be believed if their infected partner denies disclosure took place.

“There is a concern that these he said/he said cases will result in convictions due to the pervasive stigma and discrimination facing people living with HIV/AIDS,” writes Ryan Peck, the executive director of the HIV/AIDS Legal Clinic (Ontario) (HALCO), in an email.

Elliott cites a case in Montreal involving an HIV-positive woman who allegedly did not disclose her status as an example of the legal discrimination faced by HIV-positive people.

“That case seems to have involved a physically abusive relationship in which he was charged with assaulting her,” he says. “The advocates claim that was used to lessen the sentence given to him.”

Peck states that the situation is so treacherous that HALCO is providing possible strategies for disclosure. He suggests HIV-positive people consider disclosing their status in front of friendly witnesses or a counsellor or support worker who’s taking notes. He also suggests double-checking.

“Have a friend ask the sex partner if they know about your status,” he writes. “If disclosure takes place online, make sure it is done clearly, i.e. not using code words. The sex partner should acknowledge the disclosure, and a copy should be saved and printed.”

Peck suggests that having a sex partner sign an acknowledgment would be legally ideal but unlikely.

“Get your sex partner to sign a document before sex that says that he knows you are HIV-positive and that he knows what it means,” Peck writes. “The document should include the date and the partner’s name and signature. This is a good way for you to protect yourself. But it is also the most unrealistic strategy.”

Kenya: Unease over new HIV transmission law

IRIN/PlusNews has published an interesting article analysing the potential impact of Kenya’s new criminal HIV transmission law, which was passed in 2006 but has yet to be impemented.

KENYA: Unease over new HIV transmission law

NAIROBI, 12 December 2008 (PlusNews) – In June 2006, a young woman in western Kenya died of HIV-related complications and left a list of about 100 people that she said she had infected with HIV. A new law, approved by the Kenyan president but yet to be implemented, is hoping to prevent wilful transmission.

The HIV and AIDS Prevention and Control Act 2006 has drawn mixed and very sharp reactions. Inviolata Mbwavi, an AIDS activist who went public about her status in 1994, warned that the legislation in its current form appeared to label HIV-infected people as dangerous human beings with whom people should not associate.

“When you criminalise HIV then we are going back to square [one] of trying to stigmatise the virus even more, yet we have not effectively dealt with the stigma associated with HIV. Why do we want to further burden those who are already burdened by coming up with HIV-specific legislation?”

The Kenyan government is divided on the matter. The National AIDS Control Council, a government body set up to coordinate HIV control activities, is strongly opposed to the section that puts the responsibility for not transmitting the virus on those already living with it.

“Why would one bother to go for a test when they already know it could be used against them in a court of law?” said Tom K’Opere, an advocate of the High Court, at a conference organised by the Kenya National Commission on Human Rights to discuss the merits and demerits of the legislation.

“It is ridiculous, because we all know that knowing one’s status is one of the most effective ways of containing the scourge, yet we are now trying to discourage this by introducing such a law.”

According to the National AIDS Control Council, most Kenyans do not know their status.

Supporters of the law, like Otiende Amollo, a lawyer and member of the task force that collected views from the public before the legislation was drafted, maintain it would go along way in protecting vulnerable groups like women and children, who are particularly vulnerable to sexual assault.

Anne Gathumbi, an officer of the Open Society Initiative for East Africa, which supports and promotes public participation in democratic governance and the rule of law, said: “We know that the majority of those who know their status are women. What we are doing by passing such a law is therefore to condemn people we are claiming to protect to jail.”

The new legislation has also brought into question the responsibility of HIV-negative people. “What we are proposing in the law only touches those already [HIV]-positive. We should also look at the responsibility of those who do not have the virus,” said Anne Marie, a civil society activist.

“Are we not forgetting that we should vouch for shared responsibility? Let us not create a law because we are desperate to show the world that we are doing something.”

Another clause causing concern is the one that gives medical practitioners the authority to disclose the status of patients to their next of kin, violating their right to confidentiality. It remains to be seen whether Kenya will go ahead and implement these contentious clauses.

Kennedy Anyona*, who has lived with the virus for the past four years, says the responsibility of revealing one’s status to anybody is a right that should not be delegated to any other party.

“I have a right to confidentiality and that cannot be trampled upon. The responsibility of revealing my status, which is the best thing to do however, rests with me,” he said.

“Taking that away means I am being denied my human right to privacy and confidentiality, which are even enshrined in international laws to which Kenya is a signatory.”