US: Lambda Legal’s Fair Courts Project provides training for judges, court staff and attorneys nationwide on LGBT cultural competency and bias related to gender, sexuality and HIV

Through Lambda Legal’s Fair Courts Project, we provide training for judges, court staff and attorneys nationwide on LGBT cultural competency and bias related to gender and sexuality. These trainings are part of our work to increase access to justice; and we have evidence that they are making a difference in the lives of those working in the courts and those interfacing with the courts as defendants, plaintiffs, jurors and witnesses.

Here are 3 reasons we are training judges, court staff and attorneys nationwide:

1.       Cultural competency and anti-bias education affirms the dignity of LGBT court users and court users living with HIV. Most judges, attorneys and court staff want to treat every court user with respect and dignity, and all court officers have an ethical duty to treat everyone in the courtroom fairly and respectfully, but many lack the knowledge to do so. Others may treat court users with disrespect or discrimination because of deeply held, but often unconscious biases. Still others may feel justified in their explicit bias towards LGBT people or people living with HIV. Our trainings create a more fair, respectful and just court experience for litigants, jurors and witnesses by educating judges, attorneys and court staff on how to address individuals with correct names and pronouns, how to question, examine and interrupt some of their biases about gender and sexuality, and how to relate others’ identities and experiences which may be very different from their own to their common shared humanity.

2.      Cultural competency and anti-bias education improves the lives and work environments of judges, court staff and attorneys. When bias is reduced in the courthouse, working conditions are improved for judges, court staff and attorneys who are LGBT, intersex, or living with HIV. We also address intersecting forms of discrimination that affect people of color, indigenous people and people with disabilities. Our trainings can also impact participants’ lives on a personal level. After a recent training for criminal court judges and staff, an older participant told us that she had always felt as if she was an “alien” and that there was no one else in the world like her until the day of the training when she learned the word “intersex” and realized that word described her and others like her. She went on to say that this one training had changed her life and ended decades of shame, confusion and secrecy. Many other participants have said that our trainings helped them to understand and respectfully relate to LGBT family, friends and co-workers.

3.      Cultural competency and anti-bias education strengthens the judicial system. Lambda Legal’s 2015 survey of the experiences of LGBT people and people living with HIV in court, Protected and Served?, found that only 27% of transgender people and 33% of LGBT people of color who responded said they “trust the courts.” One likely reason for mistrust of the judicial system is the implicit and explicit bias of judges, attorneys and court staff that negatively impacts the experience of court users in myriad ways. Bias and lack of cultural competency (“cultural competency” is a term meaning reasonable familiarity with the experiences, language and norms of a cultural group) can lead to improper assumptions and stereotypes, disrespectful and discriminatory conduct. Our training programs educate court personnel about LGBT people and people living with HIV in order to reduce harmful bias, thereby increasing access to justice in the courts and improving public confidence because of more respectful, humane and fair treatment.

The Fair Courts Project is excited to organize trainings of trainers in cities around the U.S. in 2016 in order to replicate our judicial trainings in many more jurisdictions.

For more information on Lambda Legal’s Fair Courts Project please click here. To learn about your rights in court visit our new Know Your Rights in Court hub here. If you have experienced discrimination as a court user please contact our Help Desk at 866-542-8336.

Zimbabwe: HIV-specific criminal law on trial; ZLHR launches campaign highlighting impact of overly broad HIV criminalisation on women

Tomorrow, Zimbabwe’s HIV-specific criminal statute, Section 79 of the Zimbabwe Criminal Law (Codification and Reform) Act 23 of 2004 will be on trial itself, facing its first-ever challenge in the Constitutional Court.

The Court will hear arguments on behalf of two applicants – Pitty Mpofu and Samukelisiwe Mlilo – both of whom were unfairly convicted of “deliberate transmission of HIV” in 2012, and who are now represented by Zimbabwe Lawyers for Human Rights (ZHLR).

“The provision is too wide, arbitrary and therefore violative of the protection of the law guarantee. It is submitted that the legislature has created an offence which is as scary as the evil that it seeks to redress.” Applicants head of arguments (1.1)

Law on trial

Although the ‘crime’ in Section 79 is called “deliberate transmission of HIV”, a wide range of variables are possible that involve neither being deliberate nor actually transmitting HIV.

It is a crime for anyone who realises “that there is a real risk or possibility” that he or she might have HIV to do “anything” that the person knows will involve “a real risk or possibility of infecting another person with HIV.”

This, argues the applicants, is overly broad and unconstitutionally vague.

(Scroll to the bottom of the page, or click the link, to read the entire Applicants heads of arguments.)

Since 1996, International Guidelines on HIV and Human Rights have recommended that:

”Criminal and/or public health should not include specific offences against the deliberate and intentional transmission of HIV but rather should apply general criminal offences to these exceptional cases. Such application should ensure that the elements of foreseeability, intent, causality and consent are clearly and legally established to support a guilty verdict and/or harsher penalties.”

It is eminently clear that Section 79 does not ensure that “elements of foreseeability, intent [or] causality” are adequately provided for, although there is a defence of informed consent via disclosure. (It is not clear, however, exactly what needs to be disclosed, given that it is possible to be prosecuted for anything that might be a risk even if you haven’t been tested).

Although the Zimbabwe law predates other African laws based on the flawed N’Djamena model law, funded and disseminated with US international aid money, it contains many of the same problems. (Zimbabwe passed the first version of Section 79 in 2001 and updated it in 2004 to include people who suspected they were HIV-positive, but were not yet diagnosed.)

‘UNAIDS recommendations for alternative language to some problematic articles in the N’Djamena legislation on HIV (2004)’, specifies the kind of language that could be used, should Zimbabwe still deem to find an HIV-specific criminal statute necessary.

Notably, it recommends defining ‘deliberate transmission of HIV’ as “transmission of HIV that occurs through an act done with the deliberate purpose of transmitting HIV”.

It further recommends that no criminal liability should be imposed upon:

  • an act that poses no significant risk of HIV infection.**
  • a person living with HIV who was unaware of his or her HIV infection at the time of the alleged offence.
  • a person living with HIV who lacked understanding of how HIV is transmitted at the time of the alleged offence.
  • a person living with HIV who practised safer sex, including using a condom.**
  • a person living with HIV who disclosed his or her HIV-positive status to the sexual partner or other person before any act posing a significant risk of transmission.
  • a situation in which the sexual partner or other person was in some other way aware of the person’s HIV-positive status.
  • a person living with HIV who did not disclose his or her HIV status because of a well-founded fear of serious harm by the other person.
  • the possibility of transmission of HIV from a woman to her child before or during the birth of the child, or through breastfeeding of an infant or child.

**The issues of significant risk and safer sex (along with the difficulties of proving timing and direction of transmission) are further expounded upon in UNAIDS expanded and updated 2013 guidance.

However, Zimbabwe could also decide to do away with Section 79 altogether, and implement a new law based on a model law developed for the Southern African Development Community (SADC;, which comprises Angola, Botswana, Democratic Republic of the Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

This model law, which was unanimously adopted by the SADC Parliamentary Forum in 2008, integrates the protection of human rights as a key element of an effective response to HIV and has no specific provisions allowing for the criminalisation of potential or actual HIV exposure or transmission.

Alone But Together

Zimbabwe Lawyers for Human Rights are using the Constitutional Court hearing as a springboard for a campaign against overly broad HIV criminalisation, highlighting the case of Samukelisiwe Mlilo who features in a powerful 15 minute documentary produced by ZLHR, ‘Alone But Together – Women and Criminalisation of HIV Transmission: The story of Samukelisiwe Mlilo’.

Today, they will launch the documentary in Harare under the banner; ‘HIV on Trial – a threat to women’s health’.

Ms Mlilo was found guilty of ‘deliberately’ infecting her husband with HIV and faces up to 20 years in jail despite there being no proof that she had infected her husband. She claims she had disclosed her status to him following her diagnosis during pregnancy, and that her husband only made the complaint in revenge for her own complaint of gender-based violence following the breakdown of their marriage.

“At this point we do not know who infected who,” ZLHR’s Tinashe Mundawarara told Voice of America News in August 2012. “This is an example of the violation of women’s rights. Women are likely to know of their status first. Mlilo might have been infected by her husband, no one knows, and got charged and convicted.”

The other applicant, Pitty Mpofu, was also found guilty of ‘deliberate’ transmission of HIV a month after Ms Mlilo.

It was alleged that he infected his wife sometime between October 2009 and June 2011 , although he wasn’t diagnosed until “sometime in 2010.”  No proof regarding timing nor direction of transmission was provided during the trial.

Highest number of reported criminal prosecutions in Africa

The first known successful prosecution in Zimbabwe took place in 2008, although it is believed that more than 20 prosecutions had previously been attempted.

In this case, a 26-year-old woman who had mutually consensual sex with a male partner pleaded guilty to non-disclosure prior to unprotected sex. She was given a five-year suspended sentence, primarily because the partner – who had tried to withdraw the charges – did not test HIV-positive.

A further five men and three women have since been prosecuted, along with a 2010 case where a man was fined for falsely accusing his girlfriend, who subsequently tested HIV-negative, of infecting him with HIV.

The most recent court case, from November 2014, involved a man who was found guilty “based on a single witness” and sentenced to 15 years in prison.

Mpofu/Mlilo vs State, Constitutional Court of Zimbabwe, Harare (Case SC96/12 and 340/12 by HIV Justice Network

Germany: Female sex worker with HIV found guilty again of perceived ‘HIV exposure’ locked up for at least nine years under ‘preventive detention’ law [Updated]

The District Court of Oldenburg has sent a 30-year-old female sex worker to prison for at least nine years under Germany’s ‘preventive detention’ law, because she has shown a pattern of not disclosing to clients that she was living with HIV before they chose to have condomless sex with her.

The judge sentenced the woman from the north German port town and naval base of Wilhelmshaven to four years after finding her guilty of two counts of attempted aggravated assault (for perceived HIV exposure), with at least five years further ‘preventive detention’.

The woman had previously been found guilty of of attempted aggravated assault (for perceived HIV exposure) and sentenced to two and a half years in prison by the District Court in Wilhelmshaven in early 2010. This was increased to three and a half years by the Oldenburg District Court in late 2010.

According to the prosecution, this latest case involved three different male clients between August and November 2013.

This trial took place in private without any members of the media or public able to attend, apparently to protect the privacy of both the accused and her clients.

A spokesperson for the Oldenburg Regional Court told that ‘preventive detention’ can be imposed for offenses “directed against life and limb. Also, for repeat offenders, the courts may order a preventive detention. In addition, preventive detention serves to protect the public from dangerous offenders.”

The Court believed they were justified under all three criteria.

The woman has been in custody since March 2014. After serving four years in prison for the ‘attempted aggravated assault’ charges (for perceived HIV exposure), she will remain in custody for a minimum of five more years. She will then be examined by an expert who will decide whether or not she can be released.

Source: Ungeschützer Sex trotz HIV: Frau wird sicherungsverwahrt 15 October 2014 and NWZ online Justiz soll Prostituierte aus Verkehr ziehen 17 September 2014.

Update 17 October 2014

Deutsche AIDS Hilfe has reacted to the ruling with a strongly worded press release, confirming that this is the first German HIV-related case to involve preventive detention, and stating that anyone who has condomless sex – especially with a sex worker – needs to be aware of the risk of acquiring HIV since “HIV cannot be locked up”.

Germany’s top HIV legal expert, Jacob Hösl, is now supporting the woman, and hopes to take her case to the Supreme Court.

The press release (in German) can be read here. An approximate English translation is below.

Deutsche AIDS Hilfe: HIV cannot be locked away!

The Oldenburg District Court has imposed a prison sentence and preventive detention against HIV-positive woman – a fatal signal for HIV prevention.

The District Court of Oldenburg has sentenced a 30-year-old HIV-positive woman from Wilhelmshaven to four years in prison and five years of preventive detention because the sex worker had unprotected sex with multiple clients. No HIV transmission is alleged.

Manuel Izdebski, from the Board of Deutsche AIDS-Hilfe (DAH) notes:

“This ruling sends a completely wrong signal and harms HIV prevention. That the criminal law only places the responsibility for HIV prevention on people with HIV remains a scandal. Imprisonment and preventive detention create a dangerous false sense of security. Everyone needs to know that with unprotected sex there is a risk of HIV infection received, and must protect themselves. HIV cannot be locked away!”

To the knowledge of Deutsche AIDS-Hilfe, this is the nation’s first case of this kind, in which preventive detention was ordered. The female accused had already been convicted several times for similar “offenses”. To our knowledge no actual HIV transmission occurred  in any of the cases.

In the current case, the court informed us on request that the woman had interrupted her HIV treatment during the relevant time and so HIV transmission was therefore possible.

In an earlier judgment, the Oldenburg District Court noted that the woman had a “personality disorder” and suffered from “multi-year alcohol abuse”. And before the sexual encounters she is said to have consumed alcohol to a considerable extent.

“That makes it all the clearer that you have to protect youself against HIV and not be allowed to rely on your partner,” says DAH Board member Manuel Izdebski. “Maybe they are just not in a position to assume this responsibility.”

The criminalisation of (potential) HIV transmission is considered by Deutsche AIDS-Hilfe to be counterproductive in every way. Criminal liability is also made ​​on false premises. Manuel Izdebski notes:

“The victim-offender paradigm of criminal law is totally inappropriate for consensual sex without a condom, because it ‘takes two to tango’. The condition [that might support a prosecution] that the person with HIV wants to harm their partner has not been met here. The reasons for the abandonment of protection are much more complex. For example, it may be unspeakably difficult to address their own HIV infection, because it is associated with a great deal stigma and the fear of rejection”.

US: Iowa Supreme Court rejects ‘theoretical’ HIV risk, reverses ‘HIV exposure’ conviction

Last Friday, June 13, the Iowa Supreme Court set aside the ‘HIV exposure’ conviction of Nick Rhoades, who was initially sentenced to 25 years in prison, with required registration as a sex offender, after having a one-time sexual encounter with another man comprising anal sex with a condom and oral sex without whilst his viral load was undetectable.

In reversing the conviction, the Court recognised that sexual HIV exposure risks should not be based on outdated beliefs or theoretical risks and must be specific to the individual acts and situations that are before the Court.

Read the entire written judgement from the Iowa Court of Appeal

The Court’s ruling sends the case back to Black Hawk County District Court, where prosecutors could have another chance to claim Mr Rhoades actions leading up to his arrest violated the law. However, it is difficult to imagine that prosecutors would be able to establish that there is a factual basis to sustain a conviction in light of the Iowa Supreme Court’s decision, and much more likely that a District Court judge will allow his initial guilty plea – which the Court accepted was due to being poorly advised by his initial lawyer – to be withdrawn.

[Update October 1st: Assistant Black Hawk County Attorney Linda Fangman has filed a motion to dismiss the case against Mr Rhoades, meaning his six year ordeal is finally over]

The ruling came two weeks after Iowa’s Governor repealed the draconian HIV-specific law under which Mr Rhoades was convicted, replacing it with an infectious disease law that, amongst other significant improvements, provides a defence of taking “practical means to prevent transmission”, defined as “substantial good faith compliance with a treatment regimen prescribed by the person’s health care provider” and use of “a prophylactic device”.

[See this just published news story in ProPublica and Buzzfeed for more on Mr Rhoades’s case, the new Iowa law, and what else is happening in terms of US HIV criminalisation reform.]

HIV risks must be shown to be more than theoretical

The Iowa Court of Appeal’s decision was celebrated in press releases from Lambda Legal and the Center for HIV Law and Policy and in an editorial by the Des Moines Register. As well as personal victory for Nick (who last week had his GPS monitoring device removed by Senator Matt McCoy, during a moving ceremony at the HIV is not a crime conference in Grinnell, Iowa, following the new law’s retrospective removal of all people convicted of ‘HIV exposure’ in Iowa from the sex offender registry) it may also lead to judges and prosecutors revisiting outdated assumptions about HIV risk in future HIV-related prosecutions in other US states and jurisdictions.

“The importance of the Iowa Supreme Court’s decision cannot be overstated,” said Christopher Clark, Counsel for Lambda Legal. “We look forward to making these arguments again and to taking this Court’s clear guidance on the interpretation and application of these types of laws to the many jurisdictions in which HIV criminalization remains a pressing issue.”

In 2010, Mr Rhoades filed a petition in the District Court for post-conviction relief arguing that his attorney did not inform him of the specifics of the law, allowing him to plead guilty to charges that were not supported by the actual events and facts. After his petition was denied Rhoades appealed to the state Supreme Court.

Lambda Legal joined forces with Rhoades’ appellate attorneys, Joseph C. Glazebrook and Dan L. Johnston with Glazebrook & Moe, LLP based in Des Moines, Iowa, and The Center for HIV Law and Policy took the lead with the HIV Law Project in drafting a friend-of-the-court brief on the science of HIV treatment and transmission. The brief supporting Rhoades’ appeal was filed on behalf of The Center for HIV Law and Policy, the National Alliance of State and Territorial AIDS Directors (NASTAD), and the HIV Law Project.

In its ruling, the Iowa Supreme Court held that the criminal law required that a defendant “intentionally expose” another person to HIV. The court noted that the fact that HIV primarily is transmitted through sexual intercourse and contact with blood, semen or vaginal fluid is not a legally acceptable substitute for the facts necessary to say that a particular individual acted with the intent to expose someone to HIV in a manner that actually posed a real risk of HIV transmission.

Watch Lambda Legal’s Christopher Clark make his oral arguments before the Court of Appeal

Justice Wiggins, writing for the majority opinion, highlighted the specifics of the HIV risks involved in this case in three different places:

Based on the state of medicine both now and at the time of the plea in 2009, we are unable to take judicial notice that an infected individual can transmit HIV, regardless of an infected individual’s viral load, when that individual engages in protected anal or unprotected oral sex with an uninfected person. (page 3)

Today we are unable to take judicial notice that an infected individual can transmit HIV when an infected person engages in protected anal sex with another person or unprotected oral sex, regardless of the infected person’s viral load. (page 17)

At the time of the plea, Rhoades’s viral count was nondetectable, and there is a question of whether it was medically true a person with a nondetectable viral load could transmit HIV through contact with the person’s blood, semen or vaginal fluid or whether transmission was merely theoretical. The judicial notice we took in previous cases is subject to reasonable dispute here; thus, it is improper for us to similarly take judicial notice in this case. With the advancements in medicine regarding HIV between 2003 and 2008, we are unable to take judicial notice of the fact that HIV may be transmitted through contact with an infected individual’s blood, semen or vaginal fluid, and that sexual intercourse is one of the most common methods of passing the virus to fill in the gaps to find a factual basis for Rhoades’s guilty plea. Thus, there was not a sufficient factual basis for the district court to accept the plea. Therefore, trial counsel was ineffective for allowing the district court to accept the plea without a factual basis. (page 18)

In addition, the Court found that prosecutors must establish something more than that HIV transmission is theoretically plausible. The court rejected prior courts’ treatment of “possible” as meaning any likelihood of occurrence, no matter how remote. “Could” or “possible” in this context should mean, as the Iowa Supreme Court said, “the reality of a thing occurring, rather than a theoretical chance.” It also said that prosecutions must rely on expert testimony about actual transmission likelihood in these cases, and defendants don’t have to show that transmission would never occur in order to successfully defend against charges of HIV exposure.

First, we recognize this statute requires expert medical testimony on the likelihood of transmission of HIV. Experts are not required to testify in absolutes when it comes to causation….Second, and more importantly, we would not want to deprive a person of his or her liberty on the basis the defendant’s actions caused something that can only theoretically occur. (page 8 )

Of note, bearing in mind that only 25 percent of the more than 1 million individuals in the US who are living with HIV are achieving viral suppression, the amicus (friend of the court) brief was careful not rely too much on treatment’s impact on viral load, and rather emphasised the already low per act risk of transmission via various forms of sexual contact, regardless of whether the person was on treatment.

Rhoades v. State of Iowa, Amicus Brief, Supreme Court of Iowa

Canada: Nova Scotia court acquits young man with undetectable viral load of aggravated sexual assault for HIV non-disclosure despite no condom use

by Cecile Kazatchkine, Senior Policy Analyst, Canadian HIV/AIDS Legal Network

On November 8 2013, the Provincial Court of Nova Scotia in Canada released a very encouraging decision in a case of HIV non-disclosure. A young man with an undetectable viral load who had not disclosed his HIV positive status to his sexual partner before engaging in unprotected sex was acquitted of aggravated sexual assault.

The couple had engaged in vaginal sex on three occasions. Twice, they used a condom. On the third occasion, however, it was found that they had unprotected vaginal sex without ejaculation. At no time, did the young man disclose his HIV status. In fact, the judge found that he had actively concealed that he was HIV positive to his sexual partner who had inquired about rumours that he had AIDS.

In 2012, the Supreme Court of Canada ruled in R. v. Mabior and R. v. D.C., that a person living with HIV has a legal duty to disclose his or her HIV positive status to a sexual partner where there is a “realistic possibility of HIV transmission.” The Supreme Court was clear that where a condom is used and the HIV positive partner has a low viral load, there is no “realistic possibility of HIV transmission” and thus, no duty to disclose under the criminal law. These decisions were understood to mean that a person living with HIV must disclose his or her HIV positive status before having vaginal sex unless he or she uses a condom and has a low viral load.

None the less, the Provincial Court of Nova Scotia acquitted the young man, despite the factual finding that he had engaged in unprotected sex. The Court described two different routes to its conclusion.

The first route relates to the analysis of the consent given by the complainant. In Canada, one element that the prosecution must prove in a non-disclosure prosecution is that the complainant would not have consented to sex if he or she had known about his or her partner HIV positive status. At trial, the complainant testified that had she known that the accused was HIV positive she would not have had unprotected sex with him. But she also said that had she known that his risk of transmitting HIV was virtually non-existent, she would have consented.

As described by Justice Campbell, that the risk of transmission was infinitesimally small was the “true state of affairs” based on the evidence before the Court. Indeed, the unchallenged medical expert called by the defence testified that he did not believe that there was any risk of transmission in this case. He further concluded that “in an act of sexual intercourse someone with an undetectable viral load such as [the accused] had a one in one million chance of transmitting the virus. That might be as high as one in 500 000 (…)” and described the risk as “very close to zero.”

According to the Court, the complainant’s statement that had she known the extremely low degree of risk she would have consented to unprotected sex with the accused is part of the context that needs to be taken into account when determining whether the consent was vitiated or not. As summarised by Justice Campbell:

[t]o ignore [the complainant]’s acknowledgement that with full knowledge of the facts she would have had unprotected sex with [the accused] would amount to a strange privileging of half-truth, deception and misconception over truth. The truth is that she would have had unprotected sex with him had she known the facts. My conclusion is that her consent was not vitiated by the deception.

The second route relates to the realistic possibility of transmission. The Court found that that element had not been met either. This conclusion is at odds with the predominant interpretation of Mabior and D.C. — that unprotected sex, even with an undetectable viral load, would necessarily be considered as representing a “realistic possibility of transmission.”

In a recent decision, the Ontario Court of Appeal had ruled that there was no need for the Crown to bring medical evidence of “a realistic possibility of transmission” in each case. The Court of Appeal ruled that proving unprotected sex would be sufficient to establish “a realistic possibility of transmission” and that evidence of the accused’s exact viral load at the time and the associated degree of risk of HIV transmission would be irrelevant in such circumstances. (There was no medical evidence on the risks of transmission before the Ontario Court of Appeal or evidence of the accused’s viral load.)

The Provincial Court of Nova Scotia, however, did not accept that the Supreme Court of Canada or the Ontario Court of Appeal decisions had definitely closed the doors to different findings with respect to whether “a realistic possibility of HIV transmission” existed based on the medical evidence before the judge in a particular case.  Concerned about the potential for discrimination against people living with HIV in the absence of any risk, the Provincial Court of Nova Scotia stated that the Supreme Court decisions “can and should be interpreted in a way that in not incompatible with an approach that respects both the scientific evidence in each case and the fact finding role of trial courts.”  According to the Court, “[t]he Supreme Court did not intend (…) to impose evidentiary findings on trial courts that are incompatible with the evidence actually before those courts.”

In the case at bar, the medical evidence called by the defence was clear: the risk of transmission was approaching zero. The Court was careful to specify the risk determination was a finding of fact (versus a finding of law), specific to the case, and ruled that the legal conclusion arising from that fact was that, even in the absence of a condom, the legal test of a “realistic possibility of transmission” was not met.

This decision is an encouraging development in the law on HIV non-disclosure in Canada. While trial court decisions have limited precedential authority in the Canadian legal system, this decision remains important as it demonstrates that Mabior and D.C — which have been strongly criticised for being at odds with the science and previous case law — need not prevent science from prevailing over prejudice. Medical evidence can and should play a critical role in cases of HIV non-disclosure, exposure and transmission, something both defence lawyers and medical experts in HIV will need to be very mindful of.

Mainstream media news reports can be found here and here.  The full judgement is below.

R. v. J.T.C. 2013 NSPC 105 (November 8 2013)

Canada: Woman found not guilty of aggravated sexual assault for HIV non-disclosure before oral sex

A court in Barrie, Ontario has found a woman, ‘JM’ not guilty of aggravated sexual assault for not disclosing her HIV status before her male partner performed oral sex on her.

The Barrie Advance reports that

Justice Gregory Mulligan… ruled [‘JM’] was not guilty of the same charge when a man performed oral sex on her in a public park, stating the chances of a man contracting the disease in that manner were so “miniscule” she wasn’t required to inform him.

“This is considered a low risk. There are no documented cases of HIV being transmitted in this way,” Mulligan said. “It is so low that it does not give rise to a risk of bodily harm.”

In his ruling, Mulligan relied on evidence from Dr. Irving Salit of the Toronto HIV Clinic who said the chances of a man contracting the disease by performing oral sex on a woman with a low viral load were the same “as having a piano fall on you while walking down the street”.

Dr. Salit also testified that it was nearly as unlikely for a man to get the disease if he had unprotected intercourse with a woman in [‘JM’]’s symptom-free condition. As well, clinical trials show using a condom to protect against HIV is of little benefit when a person has a low viral load.

It was the oral sex incident that led to [‘JM’] being arrested and having police put out a public notice looking for other men who may have had unprotected sex with her.

A group of HIV organizations, including the Canadian HIV/AIDS Legal Network and the International Community of Women with HIV/AIDS, issued a press release (available in full below) welcoming the verdict.

“She should never have had to fight the oral sex charge,” said Jessica Whitbread, Global Chair of the International Community of Women with HIV/AIDS. “We deplore the Crown’s insistence on prosecuting this charge despite what the science tells us about the risk of transmission in cases of oral sex.”

“Today’s decision sends an important message to Crown prosecutors who have tried to expand the scope of the criminal law on HIV non-disclosure: criminal prosecutions for oral sex are not warranted,” said Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network.

However, ‘JM’ was nevertheless convicted of one count of aggravated sexual assault for not disclosing her HIV status before having unprotected vaginal sex, although at the time her viral load was undetectable (meaning the risk of transmission was close to zero).

As the press release chillingly reminds us, “she now faces potential jail time on charges similar to those faced by violent rapists.” Her sentencing is next week.

According to the Barrie Advance

Defence lawyer Angela McLeod expects “a battle” during the hearing because she has been told the Crown’s office is seeking a “multiple-year” penitentiary term, which could mean up to five years. “That’s outrageous,” McLeod said outside the court. “The men who going out trolling for prostitutes and not wearing condoms should be the ones going to jail.”

McLeod said she was somewhat perplexed by a finding of guilt because Justice Mulligan dismissed the oral sex charge based on scientific evidence but gave little weight to the same science for the intercourse charge. “I don’t understand it because he relied on the science for one charge but not the other,” McLeod said.

‘JM’ is only one of a handful of people in Canada who have been charged for HIV non-disclosure more than once. According to this 2012 article in The Toronto Star, in 2005, she was convicted of failing to disclose her HIV status to two soldiers from CFB Borden before they engaged in unprotected intercourse. She was sentenced to one year of house arrest. In 2007, she was charged again with aggravated sexual assault, accused of having unprotected sex with a man in Barrie, Ontario and not disclosing, although the charge was ultimately withdrawn by the Crown.

The case highlights the urgent need for prosecutorial guidelines in Canada. More than 1,000 supporters of the Ontario Working Group on Criminal Law and HIV Exposure (CLHE) have already called on the Ministry of the Attorney General of Ontario to consult with the HIV community as well as experts in HIV medicine and science when they put together their long-awaited prosecutorial guidelines later this year.

“We continue to press the Ministry to fulfill its promise and develop prosecutorial guidelines in accordance with science, international recommendations and the expertise of people living with HIV and their allies to put an end to unjust and harmful prosecutions against people living with HIV,” concludes Elliott.

Woman found not guilty on oral sex count, court sends important message to prosecutors

Canada: HIV law unjust, says lawyer

Barrie Advance A Toronto lawyer believes a new law for HIV patients isn’t fair for Canadians, and leads to more questions than answers. Ryan Peck, executive director of the HIV and AIDS Legal Clinic Ontario (HALCO), was in Barrie recently to discuss the law.

US: New toolkit for lawyers defending HIV-related prosecutions now available

A new toolkit from the Center for HIV Law and Policy / Positive Justice Project, released earlier this month, provides a wealth of information for lawyers representing people living with HIV who are facing criminal prosecution based on HIV status.

The toolkit includes charts, articles, guidances, case law, legal analysis, scientific data and empirical citations, as well as quick-reference resources and links to longer reference materials.

The toolkit includes the following resources :

  • HIV Criminalization Fact Sheet
  • Guidance for a Legal Advocate Representing an HIV-Positive Client in a Criminal Exposure Case
  • Guidance for People Living with HIV Who Are Threatened with, or Are Facing, Criminal Prosecution for HIV Nondisclosure or Exposure
  • Case Law Index
  • Legal Drafting Resources (featuring sample amicus briefs)
  • Secondary Resources
  • Sample Medical Expert Affidavit on HIV Transmission
  • Chart: Comparative Sentencing on HIV Criminalization in the United States
  • Chart: HIV, STIs and Relative Risks in the United States
  • Chart: HIV and Chronic Disease in the United States

Although created primarily as a resource for lawyers, other advocates, as well as people living with HIV in the United States, are likely to find the toolkit useful.

Download ‘Ending and Defending Against HIV Criminalization: A Manual For Advocates Volume 2: A Legal Toolkit: Resources for Attorneys Handling HIV-Related Prosecutions’ from the Center for HIV Law and Policy here.


Lawyers petition government for protection to mark Human Rights Day | SW Radio Africa

The Zimbabwe Lawyers for Human Rights (ZLHR) marched from Harare Gardens through the streets of the capital on Thursday, to commemorate International Human Rights Day, which falls on December 10th. The lawyers delivered petitions to the Supreme Court, the High Court, Parliament, the Ministry of Justice and Legal Affairs and the Attorney General’s Office, asking for protection for legal practitioners while they do their work.  Makoni said the lawyers expect the level of intimidation and harassment of lawyers to increase as the country heads towards elections, because that is when violence levels go up and lawyers are called upon to represent victims and perpetrators.

Lawyers critique Supreme Court ruling

Some criminal lawyers are worried that the Supreme Court has imposed on people prosecuted for not disclosing their HIV-positive status to sex partners a “significant evidentiary burden” to show that they used a condom and that their viral loads were low when they had sex. A pair of decisions handed down on Oct.