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In reversing the conviction, the Court recognised that sexual HIV exposure risks should not be based on outdated beliefs or theoretical risks and must be specific to the individual acts and situations that are before the Court.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allow his initial guilty plea – which the Court accepted was due to being poorly advised by his initial lawyer – to be withdrawn.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The ruling came two weeks after Iowa’s Governor repealed the draconian HIV-specific law under which Mr Rhoades was convicted, replacing it with an infectious disease law that, amongst other significant improvements,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

UNAIDS releases handbook to enhance the capacity of the judiciary to address HIV-related legal and human rights issues

Judging the epidemic has been prepared as a resource to help judges, magistrates, arbitrators and other judicial officers throughout the world adjudicate cases involving HIV-related issues. This handbook may also be used by judicial trainers and ministries of justice to deliver educational programmes to judges and magistrates on legal issues related to HIV and human rights. It may also be relevant to advocates, lawyers and other legal practitioners, and civil society organisations (including people living with HIV) that seek to gain specific understanding of HIV-related legal issues and the potential role of the courts in advancing human rights in the context of the epidemic. Based on international legal and human rights standards, the handbook contains examples of decided cases from different jurisdictions, good-practice advice and judicial rulings on HIV-related issues.

Download the report

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

UNAIDS launches first-ever Judicial Handbook on HIV, Human Rights and the Law: Interview with UNDP's Mandeep Dhaliwal

The meeting also looked at specific actions that can be taken by Judges, to create a more supportive environment for people with HIV and key populations that are at-risk. UNAIDS also launched the first-ever Judicial Handbook on HIV, Human Rights and the Law at the meeting.

UNDP releases collation of progressive jurisprudence on HIV, Human Rights and the Law

The Compendium of Judgments, HIV, Human Rights and the Law, is a collation of progressive jurisprudence on HIV-related matters that highlights how the law has been used to protect individual rights. The compendium presents a user-friendly compilation of judgments from different national and regional jurisdictions.

Malawi judge writes thoughtful editorial on difficulties of proving 'wilful' HIV transmission, questions criminalisation

by Dingiswayo Madise: One of the challenges that the subordinate courts face in criminal matters is the issue involving criminal law and HIV and Aids. Many times, courts are faced with multifaceted and thought provoking cases involving victims of sexual assault, namely rape, defilement and sodomy.

The other area where there is much debate is where there is no offence committed and the sexual intercourse was consensual. It has been argued that a partner who knowingly infects another with HIV must be prosecuted where there is evidence that the partner knew that he or she had HIV. However, it is difficult to prove that one knew that he or she had the disease unless it can be shown that there was prior testing. Mere sickness or loss of weight cannot constitute knowledge on the part of the sick partner unless and until they go for HIV testing. The million $ question is: Should we criminalise HIV transmission? Can we not find other ways of reducing the spread of the disease?

UK: Sentencing guidelines for grievous bodily harm discussed in Guardian article about changes to sex offender sentencing guidance

Changes are in the pipeline for the sentencing of sex offenders. But what principles govern how long a criminal is jailed for? To take one category of offence, assaults involving grievous bodily harm, there are nine steps that must be followed. The first two are the most important. Step one weighs up how serious the offence is by measuring the harm done and the culpability of the offender. Greater harm is indicated by “serious” injury to the victim, a sustained or repeated attack and the personal circumstances of the victim. But the definition of serious injury is again fundamentally contentious. Culpability is governed by another 15 factors, including premeditation, use of a weapon, or having taken on the leading role in a gang. The 19 factors, in total, put the offence into one of three categories of seriousness.

Step two sets out the range of any jail sentence. Depending on the category of seriousness, a sentence will range from 9-16 years, 5-9 years, or for the least harm and culpability 3-5. Steps three to nine look at mitigating factors, reduction for guilty pleas and a range of other technical issues. The 27 pages of assault guidelines on their own have the potential to baffle even a hardy layman. “I have the greatest sympathy with the public,” says Sir Louis Blom-Cooper, a QC and legal academic. “The system for sentencing is immensely complicated even for judges.”

Canada: Judge says disease risk from spitting is an ‘irrational, urban myth’

Read the entire ruling R. v. Ratt [2012] SKPC 154, S.J. No. 590

A Canadian judge in the province of Saskatchewan has ruled that spitting in the face of a police officer is a simple assault that does not result in a risk of serious diseases such as HIV, hepatitis C or herpes.

“When we in the justice system perpetuate this myth without question, without evidence of the risk, without any fact-based analysis, we are feeding into this irrational anxiety,” noted Judge Felicia Daunt during sentencing of a 36 year-old woman following her guilty plea for impaired driving and assaulting a police officer (by spitting into the right into the eye of a female arresting officer).

According to a CBC report

The Crown argued that there was a risk, although minimal, that the officer could have become infected with HIV, hepatitis C or herpes. She underwent considerable anxiety, visited a doctor and had to wait two weeks before she found out she was going to be OK.

The Crown pointed to previous cases where people who spat at police officers received jail sentences. The prosecutor pushed for the maximum sentence of six months for Ratt.

Instead, earlier this week La Ronge provincial court Judge Felicia Daunt sentenced her to time already served — five days — and six months probation.

“I want to be clear that I am in no way trivializing the well-being of police officers or minimizing the very real risks they face on a daily basis,” Daunt wrote in her nine-page decision. “They have an extremely stressful job.” However, it’s an “urban myth” that police get serious injuries after being spat at and the intense anxiety that officers and their families feel about saliva is not justified, she said.

Canada and the United States have far outpaced most other countries in attempting to prosecute HIV-positive people for spitting, notably for spitting at arresting officers. The most notorious case comes from the United States (the 2008 Willie Campbell case in Texas) but between 1993 and 2006, there were six arrests or prosecutions of people living with HIV for spitting in Canada, representing 10% of all criminal potential or perceived ‘HIV exposure’ cases during that period.

Laboratory studies have found that saliva may contain HIV, and transmission via saliva is therefore biologically plausible. However, there is absolutely no epidemiological evidence to suggest that spitting on someone could expose them to enough HIV for infection to result. Levels of HIV in saliva are not high enough to allow transmission, even if the saliva comes into contact with a mucous membrane such as that of the eye. Spitting into someone’s mouth would create the same risk as kissing – zero. The CDC recently updated its website to highlight HIV-related risks in the context of criminal prosecutions, and notes that spitting poses a ‘neglible’ risk of HIV exposure.

In this particular case, however, there was no evidence that the accused had HIV or any other communicable disease. Instead, the Crown wanted to use her as an example and have the judge sentence her to six months in prison to deter others from spitting on cops during their arrest.

Instead, Judge Daunt noted the following:

“Those who get arrested on a regular basis know the police are terrified of getting spit on. That’s why they do it. They use that fear against the officers. A detainee can threaten a police officer, he can try to hit him, and not bother that officer one bit. So if a detainee can put the fear of death into an officer simply by spitting on him or her, he is going to do it. In other words, these spitting incidents are increasing because of the fear. If we want to deter suspects from spitting on police officers, we need to educate these officers about the real risks involved, and not perpetuate their anxiety by repeating urban myth.”

Judge Duant’s reliance on science and not stigma is very much appreciated.  Let us hope that Canada’s Supreme Court is similarly enlightened when it delivers its judgments in the Mabior and DC appeals this Friday, October 5th.  The decision will be available as of 9:45 am 9.45 EST (15.45 CET) on the Supreme Court’s website at http://scc.lexum.org/en/index.html.

Czech Republic: 18 year-old pregnant woman gets 2 1/2 years for HIV non-disclosure

An 18 year-old pregnant woman from Eastern Bohemia in the Czech Republic, coinfected with both HIV and Hepatitis C, was sentenced to 2 1/2 years in prison last week for not disclosing that she was HIV-positive before having unprotected sex with her 19 year-old boyfriend. The judge, Miroslav Veselský, classified the ‘crime’ of HIV non-disclosure as ‘attempted grievous bodily harm’.

This is only the fourth-ever prosecution for HIV non-disclosure prior to unprotected sex in the Czech Republic of which we are aware – and the first-ever prosecution of a woman. A young pregnant woman at that.  A young pregnant woman who spent her entire life in foster homes and juvenile institutions according to the two news reports of the case here (English translation here) and here (English translation here).

She was diagnosed with HIV and hepatitis C at the age of 15 and a year later was treated for dependence on methamphetamine and heroin. After turning 18 she was moved to a social care home  (where, according to Czech law, people with HIV must disclose their status), and the social care staff monitored her private life.

When staff learned that she was going out with a person named in the news reports as John N., they told her to disclose her health status to him or face the consequences.

“She told me that she has hepatitis C. The HIV – she said nothing, probably wanted to be with me and she was afraid of losing me.”

It transpires that John was not a complainant in the case, but simply a witness. It was the care home staff who notified the police. In fact, John stated that although almost all of their sexual encounters were unprotected, he acquired neither HIV nor hepatitis C. Another partner, who went out with the young woman after her relationship with John ended also testified that he knew that the the young woman was HIV-positive and wore a condom.

The young woman was actually tried in absentia, at her own request, because she is eight months pregnant. Justice Veselský told the court he had never come across a case like this in 30 years on the bench and although the usual sentence for attempted grievous bodily harm is five to twelve years, he listened to appeals from both the defending and prosecuting counsel and decided to be “pragmatic” and “lenient” with the 2 1/2 year sentence.

The young woman has already served four months in custody, and can apply for parole in 15 months. This means, of course, that she will give birth in prison. In early February she will be taken to a detention hospital in Prague to prepare for childbirth.