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.

UK: Report shows police mishandling of investigations into alleged criminal HIV transmission

Below are the opening paragraphs of a news story I wrote for aidsmap about a new THT report about how the police in England are handling investigations into criminal HIV transmission.

The full report, Policing Transmission, can be downloaded from THT.

 

A new report by the Terrence Higgins Trust (THT) launched [on January 27th] at the House of Commons has revealed a systematic mishandling of complaints for alleged criminal HIV transmission in England & Wales. The report, Policing Transmission was welcomed by the Association of Chief Police Officers (ACPO), which acknowledged that “too many times we have got it wrong”.

There have been “scores, if not hundreds” of arrests since the first conviction for reckless HIV transmission in England and Wales, that of Mohammed Dica in October 2003, noted THT’s Sir Nick Partridge speaking at the launch of the report in the House of Commons, hosted by Lord Norman Fowler, Vice Chair of the All Party Parliamentary Group on AIDS.

Sir Nick said that whilst most police investigations had been dropped due to a lack of evidence, during the course of these ‘failed’ investigations – which had lasted up to a year – “lives had been turned upside-down and some came close to being destroyed”.

During the period 2005-6, there was an average of one arrest every two weeks. Concerned at this number of arrests and aware of the cost, in terms of “public resources and private misery”, THT approached ACPO and the Metropolitan Police Service (MPS) in order to examine the role of the police in criminal HIV transmission investigations.

Read more here.

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.”

Uganda: Bill to force spouses to reveal HIV status

Uganda’s proposed HIV and AIDS Prevention and Control Bill is analysed in this report from the Daily Monitor.

President Museveni has previously said that he supports the death penalty for criminal HIV transmission.

 

Bill to force spouses to reveal HIV status

by Sheila Naturinda

Monitor Online

Dec 12, 2008 – 2:54:15 AM

Kampala

Ugandans who test positive for HIV, the virus that causes Aids, will have their results shared with their spouses and sexual partners with or without their consent, under a new law proposed by the government.

The draft HIV and Aids Prevention and Control Bill 2008 unveiled before a committee of Parliament this week, seeks to criminalise the willful and intentional transmission of HIV to an uninfected person. It also seeks to guarantee access to treatment for those already infected and to protect people living with HIV against discrimination.

The Bill still, undergoing consultations, seeks to get a formal legislation to back up and supplement the fight against the epidemic in the country. HIV/Aids activists have, however, attacked provisions of the draft that seek to peel away the veil of confidentiality that voluntary testing for HIV currently provides.

For instance, the Bill recommends that medical personnel who carry out an HIV test “may notify the sexual partner(s) of the person tested where he or she reasonably believes that the HIV positive person poses a risk of HIV transmission to the partner and the person has been given reasonable opportunity to inform their partner(s) of their HIV positive status and has failed to do so”.

Ms Stella Kentutsi of the National Forum of People Living with HIV/Aids Networks in Uganda told Daily Monitor that the provisions compelling disclosure are insensitive to the people living with HIV. “This criminalisation will automatically affect disclosure which has been encouraged and it will therefore increase the level of silent transmission among the population,” she said.

Mr Robert Ochai, the executive director of The Aids Support Organisation, said the Bill has many contentious clauses including that of disclosure which ought to be deleted or amended.

Dr Chris Baryomunsi, the vice chairperson of the parliamentary committee on HIV/Aids, defended the draft Bill and its provisions and said similar laws criminalising willful transmission of HIV had been passed in South Africa, Kenya, the Philippines and China. He added, however, that the Bill could be amended to address concerns raised by various groups.

The Bill urges individuals, who are aware of their HIV-positive status to inform their sexual partners and observe instructions on prevention and treatment. Although the Bill provides for voluntary counselling and testing for HIV, it prescribes compulsory HIV tests for people convicted of drug abuse or possession of medical instruments associated with drug abuse, people charged with sexual offences such as rape and defilement, as well as sex workers convicted on prostitution charges.

The Bill also prescribes “routine” HIV testing for victims of sexual offences and pregnant women as well as their partners. It also provides for individuals to be subjected to HIV tests under a court order, with or without their consent.

First effort

The Bill is the first formal effort by the government to criminalise behaviour that could lead to HIV and Aids. It comes at a time of growing anxiety among public health specialists over the stagnation of the country’s HIV prevalence rate at around 6.5 per cent and evidence of rising year-on-year infections.

The move towards forceful disclosure appears informed by research findings which show more infections occurring among married couples, as well as a high incidence of discordance where one partner is not infected.

Supporters of the Bill argue that compelled disclosure will help uninfected partners take steps to prevent infection.

Despite the controversial clauses on disclosure, the Bill contains several provisions designed to protect the rights of people living with HIV and Aids.

Apart from providing for pre and post-test counselling, the Bill says every pregnant woman who tests positive for HIV is entitled to safe and appropriate anti-retroviral treatment, which helps postpone the onset of Aids, and medication to prevent the transmission of the virus to her baby. It also provides for HIV testing for babies born to HIV-positive mothers and guarantees treatment, care and support for those found to be infected.

In other provisions, the Bill forbids employers from subjecting employees to compulsory HIV tests. It also notes that “no person shall be compelled to undergo an HIV test or disclose his status for the purposes of gaining access to any credit or loan services, medical, accident or life insurance or extension of continuation of such services”.

The Bill states, “A person shall not be denied access to any employment which he/she is qualified or transferred and denied promotion on such grounds like he has the virus or he is perceived to carry the virus.” It prescribes a five-year jail term to employers who violate this provision.

The Bill also seeks to eliminate discrimination among school children that have been affected in their schools because some have been denied education on grounds that they are HIV positive. “An education institution shall not deny admission or expel, discipline segregate and deny participation in any event that a person is perceived to be of HIV positive status,” it states. The Bill also seeks to have all persons whether infected or not have a right to vie for public offices.

In work places, the Bill seeks to force all employers to make sure all mechanisms are in place to reduce contraction of the disease by their employees.

In places like hospitals, according to Dr Baryomunsi, all employers will be mandated to ensure that necessities like adequate gloves and immediate medications are available in cases where someone accidentally pricks himself. “This helps in cases where such a person is likely to unknowingly transmit the virus to a patient,” he said.

The Bill states: “Every institution comprising of 20 or more persons will provide HIV/Aids related treatment and the compensation to persons working in such an institution who will be occupationally exposed to the virus,” the Bill reads in part.

Highlights of the Bill

  • Willful and intentional transmission of HIV is criminal.
  • A doctor can notify a partner of an HIV-positive preson their status if the doctor believes the infected person poses a risk of transmission
  • Individuals aware of their HIV-positive status should inform sexual partners and observe instructions on preven tion and treatment.
  • Compulsory HIV tests for people convicted of drug abuse or possession of medical instruments associated with drug abuse, people charged with sexual offences such as rape, defilement, as well as sex workers convicted of prostitution.
  • Routine HIV testing for victims of sexual offences and pregnant women as well as their partners.
  • Every preganant woman who tests HIV-positive is entitled to safe and appropriate anti-retroviral treatment.
  • HIV testing for babies born to HIV-positive mothers and treatment, care for those found infected.
  • Loan/credit/insurance providers should not subject clients to HIV test as a precondition for offering the credit or service.

Africa: PlusNews publishes in-depth analysis of criminalisation throughout the continent

PlusNews, the global online HIV and AIDS news service of the United Nations Integrated Regional Information Networks (IRIN), has published an excellent in-depth analysis of criminalisation in Africa.

A collection of short articles focusing on various aspects of criminalisation in different parts of the continent can be downloaded as a pdf here, or read online here.

They include:

I reproduce here an article providing an overview of the situation alongside a criminalisation map of Africa which they say will be updated once they receive more accurate information from readers in Africa.

 

AFRICA: Will criminalising HIV transmission work?

IRIN/PlusNews

Monday 08 December 2008

Countries in sub-Saharan Africa are looking at a new way of preventing HIV infections: criminal charges. But experts argue that applying criminal law to HIV transmission will achieve neither criminal justice nor curb the spread of the virus; rather, it will increase discrimination against people living with HIV, and undermine public health and human rights.

UNAIDS has urged governments to limit criminalisation to cases “where a person knows his or her HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit HIV”. The reality is that intentional and malevolent acts of HIV transmission are rare, so in most instances criminal prosecutions are not appropriately applied.

In Switzerland, a man was sent to jail earlier in 2008 for infecting his girlfriend with HIV, even though he was unaware of his HIV status, and a Texas court recently sentenced a man living with HIV to 35 years in prison for spitting on a police officer, although the chances of the officer being exposed to the virus were negligible.

Laws making HIV transmission an offence are not new to the developed world, but the trend has been growing in African countries, where higher prevalence levels make such laws all the more attractive to policymakers.

“Africa has burst into this whole frenetic spasm of criminalising HIV,” said South African Justice Edwin Cameron, who is also HIV positive, at the International AIDS Conference in Mexico earlier this year.

In Uganda, proposed HIV legislation is not limited to intentional transmission, but also forces HIV-positive people to reveal their status to their sexual partners, and allows medical personnel to reveal someone’s status to their partner.

Most legislative development has taken place in West Africa, where 12 countries recently passed HIV laws. In 2004 participants from 18 countries met at a regional workshop in N’djamena, Chad, to adopt a model law on HIV/AIDS for West and Central Africa.

The law they came up with was far from “model”, according to Richard Pearshouse, director of research and policy at the Canadian HIV/AIDS Legal Network, who maintains that the model law’s broad definition of “wilful transmission” could be used to prosecute HIV-positive women for transmitting the virus to their babies during pregnancy.

People living with HIV have expressed concerns that the growing trend to criminalise HIV infection places legal responsibility for HIV prevention solely on those already living with the virus, and dilutes the message of shared responsibility.

UNAIDS has warned that using criminal law in cases other than intentional transmission could create distrust in relationships with healthcare workers, as people may fear the information will be used against them in a criminal case. Such laws could also “discourage HIV testing, since ignorance of one’s status might be perceived as the best defence in a criminal law suit.”

Some policymakers have called for HIV legislation as a means to protect women from HIV infection, but the irony is that sometimes these laws may result in women being disproportionately prosecuted. Many women find it difficult to negotiate safer sex or to disclose their status to their partner.

What are the alternatives? UNAIDS recommends that instead of applying criminal law to HIV transmission, governments should expand programmes proven to have reduced HIV infection. At the moment, there is no information indicating that using criminal law will work.

Zimbabwe: Blame, responsibility, impact of criminalisation on women analysed

Excellent opinion piece in the Zimbabwean newspaper, The Herald, which discusses blame and responsibility and the impact of criminalisation of HIV transmission on women.

 

Blame Game Won’t Change a Thing

The Herald (Harare)

Beatrice Tonhodzayi

4 October 2008She is young and very striking. That type of girl that would give most of my male colleagues’ ideas; if she ever looked their way. She is very pretty, what my male colleagues term the “typical African queen.”

However when you look deeply into her eyes, you can tell she is sad.

But what would make such a pretty and young lady sad?

Mutsa (not her real name) is living with HIV. It is not that knowledge however that is responsible for the sadness that surrounds her very being.

It is anger and a sense of betrayal.

Anger and betrayal, that she feels towards her former lover, a medical doctor, who she says infected her with HIV.

When Mutsa got in touch with me about her story, I felt very betrayed on her behalf.

There she was, going out with a medical doctor, someone who has all the knowledge about HIV transmission. This was the first man she had ever been with and he had the nerve to infect her with HIV, I felt.

But then, I began to wonder!

Did he even know that he was HIV positive?

Yes, he may have slept with other women before or besides Mutsa but this does not mean he knew his status and therefore willingly infected his girlfriend.

And why did Mutsa have unprotected sex with him when she did not know his status?

I am a woman; I champion the women’s cause as much as I can because I sincerely believe that life has not been very kind to woman-kind.

However, I am a journalist and must look at both sides of the coin. I must be objective.

There are many women who are living angry lives unnecessarily. They are filled with so much bitterness at the fact that their husbands and partners have infected them with HIV.

This anger in some cases, is so intense that it eats up one’s very passion for life.

They wish these men could just be thrown into jail for committing such heinous crimes.

Is this necessarily fair to the men in question and the women themselves?

A cursory glance shows that most women who are living with HIV blame a man for their status and this is understandable.

It is a fact that most men sleep with several women at the same time. How many women can safely say they have never been played?

Definitely not me!

But if we know we are or have been played, should we not begin to look out for ourselves?

Another interesting truth is that even women, who have had other sexual encounters before marriage, are quick to point a finger to the man when they test positive.

This is despite the fact that some of them would not have tested before entering this relationship.

Ever think for a moment that you could actually have been positive before, sisters?

If the truth be told, there are some men who have also been infected by women. But how many times do you hear people sympathising with a man?

Is this because men do admit to having been around and done that, unlike their female counterparts?

Multiple concurrent partnerships, especially the “small house” syndrome, are very popular in southern Africa and this is a documented fact.

Such partnerships have been identified as a key driver of HIV in the region.

Because men keep the majority of small houses, whenever transmission occurs, a finger is pointed at them and quite rightly so, mostly.

But what does just blaming them achieve if women do not stand up and begin to look out for themselves.

For argument’s sake, let us say the man is responsible, does this mean by pointing a finger, the virus would disappear?

If we could even go on to punish someone for infecting someone, would we solve anything?

Some would argue that it is high time we criminalised HIV transmission but will this prevent the spread of HIV?

Would it make people more sexually responsible?

Justice Edwin Cameron of South Africa’s Supreme Court of Appeal at the just ended XVII International AIDS Conference in Mexico said criminalisation of HIV transmission makes for bad policy direction around the epidemic.

He said laws and prosecutions don’t prevent the spread of HIV but may actually continue to distract us from reaching our goals of ending deaths, stigma, discrimination and suffering.

He also said something else that I like.

“The prevention of HIV is not just a technical challenge for public health. It is a challenge to all humanity to create a world in which behaving is truly feasible, is safe for both sexual partners, and genuinely rewarding.

“When condoms are available, when women have the power to use them, when those with HIV or at risk of it can get testing and treatment, when they are not afraid of stigma, ostracism and discrimination, they are far more likely to be able to act consistently for their own safety and that of others.”

The responsibility lies with all of us surely?

At the International AIDS Conference Regional Feedback Meeting held at the Harare International Conference Centre, Southern Africa HIV and AIDS Information Dissemination Service (SAfAIDS) Executive Director, Mrs Lois Chingandu also echoed the same comments.

She said the challenge with sexual matters were that they were mostly a “heat of the moment” thing and therefore clearly ascertaining that someone has an intention of infecting someone would be difficult.

“One could look for a condom in the dark and fail to find it. Both parties would go ahead to have consensual sex. Could we blame someone here?” she asked.

Today my message is simple. I am just appealing to Mutsa and others like her who are failing to move on because of the anger and sense of betrayal they feel that someone infected them to let go of it and live their lives.

She once felt like taking him to court but then, she says, she realised there was really no point for her status would not change.

I am also inviting my readers out there to contribute their thoughts and comments to this issue of blame and criminalising HIV transmission. My e-mail address is beatrice@safaids.org.zw

Please note:

Each of us has the responsibility and right to protect ourselves from HIV infection and re-infection

Failing to manage one’s anger is one way of increasing stress levels

You can still enjoy a full and productive life, even if you are HIV positive

Beatrice Tonhodzayi is a Programme Officer-Media with SAfAIDS

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.”

Canada: Another Ontario man accused of HIV exposure

A 24 year-old migrant has been arrested in a suburb of Toronto accused of aggravated sexual assault because he did not disclose his HIV status to a 21 year-old woman with whom he had consensual sex earlier in the year.

Although bloggers suggest the man is from Ethiopia, this is not clear in the Canadian reports, of which the one from CityNews is typical, which appear to be based on a police press release ‘fishing’ for more complainants.

Man Accused Of Knowingly Spreading HIV To Woman
Tuesday June 24, 2008
CityNews.ca Staff

A 24-year-old Brampton man is charged in a terrible case of aggravated sexual assault. But it’s what police say Yonatan Gezahegne Mekonnen didn’t tell his alleged 21-year-old victim that has cops worried.

Police contend the couple engaged in consensual sex back in January and February of this year, and that the accused was well aware that he was HIV positive at the time of the encounters – but never told the woman.

They accuse him of exposing her to the disease despite knowing he could easily pass it on to her – and by extension anyone else she may have been seeing. He was arrested on Thursday on two counts of aggravated sexual assault and made a court appearance last Friday.

But now cops are worried that other young women may have fallen under his spell and been exposed to the dangerous virus. They’re looking to speak to anyone who has had contact with Mekonnen in more than a casual way.

If you think you may have crossed his path, call the Peel Police Special Victims Unit at xxx-xxx-xxx or anonymously to Crime Stoppers at xxx-xxx-xxx.