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

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.

Congo: First ever criminal prosecution nets 15 years for husband under poisoning law

The Criminal Chamber of the Court of Appeal of Pointe-Noire in Congo (also known as the Republic of Congo, or Congo-Brazzaville – not to be confused with its larger neighbour, Democratic Republic of Congo) has sentenced an HIV-positive man to 15 years in prison after finding him criminally liable for his infecting his wife. 

The sentence – which also included a payment of $100 million CFA francs (approximately US$210,000) –  as well as the prosecution itself has caused a great deal of controversy since sentencing was handed down on February 24th.

According to a March 2nd report by Inter Press Service Africa (in French here, and Google translated into English here) the case was controversial for several reasons.

First, the judge used his discretion to try Congo’s first ever criminal HIV transmission case by utliting the law on poisoning.

“The poisoning in our legislation is not limited. This is an administration or inoculation of substance in the body that cause damage or death,” Raymond Nzondo, lawyer for the victim told IPS.

This law was likely inherited from when Congo was part of France’s empire. However, French case law has now established that sexual fluids are not poisons, so the anti-poisoning law no longer applies.

Adding to controversy is the fact that an HIV-specific law, adopted by parliament in December 2010 but currently waiting to be enacted, now lists the circumstances in which criminal law cannot be applied to HIV transmission, with criminal liability limited to “intentional and deliberate” HIV transmission. The wording was changed following a workshop convened by civil society in 2009 in accordance with UNAIDS’ recommendations.

“This is illegal, this offense does not even exist in our legislation. I condemn this verdict,” Irenaeus Malonga, counsel for the accused, told IPS. He added that he had “already appealed to the Court of cassation [Congo’s court of appeal].”

Local organisations of people living with HIV / AIDS have also condemned the verdict. “We do not recognise this sentence as it is illegal. We will organise actions to ensure the man’s release,” warned Thierry Maba, HIV-positive, president of the Association of Young Positives Congo, a nongovernmental organisation (NGO) based in Brazzaville, the Congolese capital.

“The state was supposed to protect us, but now exposes us now by trial. And (with) 15 years imprisonment for a patient, he will die in prison,” says Simon, 35, an HIV-positive man from Pointe-Noire.

The IPS article includes scant details of the actual case, but it does quote the man’s lawyer claiming that both husband and wife had other sexual liaisions during their ten year marriage which certainly would create reasonable doubt that her husband was only the source of the woman’s infection.

“Who knows exactly who brought the disease home? Is something imagined. Before they married, both spouses had their life, the only screening test is not enough to convict someone,” railed Maba.

To Malonga, counsel for the condemned, the expert analysis can not say with certainty that contaminated the first spouse. “The doubt is there! The woman slept around, the man also has slept around, and they were married then,” he said.

Adding to the doubt that husband was the source of his wife’s infection is the fact that he had been on tretament since 2000 – this fact was used to prove that he knew his HIV-positive status, but there was no argument made by his defence about reduced infectiousness on treatment.

According Nzondo, counsel for the victim, her husband was under treatment since 2000, but had said nothing to his wife. He therefore did not use a condom during sex. The woman then began to develop the disease in 2005.  “The man knew he was sick and was taking medication by hiding his wife. The fact was intentional and criminal,” said Nzondo. 

South Korea: Court refuses arrest warrant for teenage sex worker alleged to have exposed 20 men without disclosure

A 19 year-old female sex worker from the southern port of Busan was picked up by South Korean police last week after her father alleged she had unprotected sex with up to 20 male clients since testing HIV-positive in February.

However, according to an AFP report in The Straits Times

the court in Busan rejected a request from police to issue an arrest warrant for the woman, saying she should instead be sent to hospital for treatment.

A second report, from notes that the young woman

reportedly said she suggested using contraceptives but her male partners refused to do so.

Of note, South Korea has no HIV-specific criminal laws.

In 2009 a 26-year-old HIV-positive man became the first person prosecuted under the country’s public health laws for having unprotected sex without first disclosing his HIV status. The man reportedly had sex with at least ten women. He received an 18-month prison sentence. The case occasioned calls for tougher laws for such conduct.

Ireland: Police HIV risk “as likely as being struck by asteroid”; compensation slashed

The risk faced by Irish police of occupational exposure to HIV and other blood-borne infections is “as likely as being struck by an asteroid,” according to expert testimony during a test compensation case conducted by Ms Justice Mary Irvine in July 2009 following a high level of compensation claims involving fear of transmission of such diseases coming before the Irish courts.

Since then, reports today’s Irish Independent, compensation payouts have been reduced from “upwards of €50,000” to between €5000 and €7000.

Full story below.

Garda payouts for injury fears slashed due to ‘tiny’ HIV risk
By Ray Managh
Tuesday July 13 2010

COMPENSATION for gardai claiming they suffered anxiety after minor scrapes with potential drug addicts has been slashed after the risk of illness was deemed to be “as likely as being struck by an asteroid”.

After a test case was taken before the High Court, damages for stress were yesterday cut to well below what can be awarded by the District Court.

But while this will save the State in compensation costs, the final bill will more than quadruple after legal costs are included.


Some judges, have, in the past, awarded gardai in similar cases upwards of €50,000 at a time when no significant attempt had been made to test for HIV contamination.

Ms Justice Mary Irvine conducted a test case during which she heard from medical experts that the risk of a garda contracting diseases from drug addicts was as likely as being struck by an asteroid.

Since delivering her judgment, Ms Justice Irvine has significantly reduced that element of compensation relating strictly to anxiety about contracting an anti-social disease.

Yesterday, she reminded authorities of the need to allay garda fears through continued education about the remote risk of infection. She said in incidents of injury it was important to carry out tests on assailants.

Gda Cormac McAvock, of Oranhill, Oranmore, Galway, was awarded €7,000 for anxiety and physical injury he suffered while making an arrest when he was stationed in Mullingar.

He did not know what had caused a finger wound but had been advised to have blood tests. He did not have counselling and had not asked that his assailant be tested for HIV.

Gda Gerard Ryan, of The Grove, Louisa Valley, Leixlip, Co Kildare, was awarded €5,000 for stress suffered after he was injured during an arrest.

Ms Justice Irvine said he had believed he had been bitten by his assailant who was not a known drug user and he had been advised of the very minute risk of infection.

US: Media, police, judge conspire in ‘hate crime’ against gay HIV-positive man in biting case

I am so mad I could spit and bite! I’ve seen a lot of bad reporting and bad legal decisions during my time blogging, but never before have I seen the media conspire with the criminal justice system in such a calculated, prejudiced, stigmatising, and ultimately harmful way.

A gay man from a small city in Michigan who has been harrassed and beaten up by neighbours for years, has been charged with “assault with intent to maim, assault with intent to commit great bodily harm and possession or use of a harmful device” after the latest assault resulted in biting his neighbour the lip whilst he was defending himself.

The story first appeared on October 30th in the Detroit News.

Although police allege [the accused] was the lone attacker — biting neighbor Winfred Fernandis Jr., 28, on the lip following the Oct. 18 confrontation — [the acccused] says he’s long been the target of bigotry on his street, and Fernandis, along with several of Fernandis’ family members, took turns beating him.

“I have no memory of biting him,” said [the accused], who is due in 41-B District Court for a preliminary hearing Monday. He divulged his HIV status after questioning from the media. “This person has been threatening me for years. The hatred needs to stop.”

“He divulged his HIV status after questioning from the media.”

How did that happen? Well, Fox News did some ‘investigating’ and discovered he was HIV-positive. They asked him to confirm it on camera – he did. They then told the bitten neighbour on camera. That’s when it got ugly.

Here’s the Fox News report.

Since HIV is involved, Clinton Township District Court Judge Linda Davis said during a preliminary hearing on November 2nd that just knowing he was HIV-positive and biting the neighbour is enough to sustain these very serious charges, reports a second story in the Detroit News.

“He knew he was HIV-positive, and he bit the guy,” Davis said. “That on its own shows intent.”

No it doesn’t, Judge Davis, because saliva from a bite does not expose someone to HIV. Now she is implicated, along with the police and the complainant (and his wife), in a hate crime.

“I am still maintaining my client is the victim of a hate crime,” [the man’s attorney, James L. Galen Jr.] said. “He will be exonerated. This is the very first battle in what I think is going to be a long war.”

A pretrial and arraignment will take place on November 16th.

US: Georgia judge branded ‘too lenient’ after 18 month sentence for cop biter

An Atlanta judge who sentenced an HIV-positive man to 18 months in prison after pleading guilty to aggravated assault and battery for biting a policeman has been branded too lenient.

The assistant district attorney had recommended a “more appropriate” 15 years because during the bite the man told the cop, “I have AIDS…you are going to die”.

In a long analytical article that appeared in last week’s Atlanta Sunday Paper, not once is there any mention of the lack of possiblity that HIV could have been transmitted during the bite. Instead, the article takes it for granted that the biter’s words were a literal and real threat – as real as a shooting or stabbing.

Tom Clegg, a former DeKalb County assistant district attorney who [previously] prosecuted [the HIV-positive man], who is deaf, [said of Fulton County Superior Court Judge Marvin] Arrington’s sentence… “I think it is very lenient, especially in light of [the] comment, ‘You are going to die.’ Whether he succeeded in infecting him or not, 18 months in jail is a gift.” Clegg says the assistant district attorney’s recommendation of 15 years with six to serve was more appropriate. “What if he had shot the cop? What if he had stabbed the cop? Frankly, I think most police officers would rather be shot than to have to suffer having a terminal illness,” he says. “The sentence is extraordinarily lenient.”

As is typical of these cases, the article also focuses on the pain, worry and anti-HIV drug side-effects that Officer Andrew Fincher suffered following the bite.

During the past year, Fincher, who tests negative for the disease, has endured a harsh HIV drug regimen, which Grady Hospital’s Dr. Jeffrey Salomone says was administered as a precaution. While Fincher suffered through drug side effects including nausea, diarrhea and extreme fatigue, always worried that the next test would show he had HIV, he willed himself to look forward to the day when the offender, [man’s name], 42, would be sentenced to a long stay in jail.

However, Judge Arrington, despite another article in the same paper claiming he is far too liberal to serve as a judge, did not reduce the sentencing due to his understanding of the reality of the miniscule risks of HIV transmission in this case. Neither was it because he appreciated the fact that in moments of stress and fear, people with HIV sometimes feel they have to use the stigma of HIV as a weapon to defend themselves, even whilst knowing that HIV itself is no more effective than a water pistol when used as an actual weapon.

Rather, in an email to the paper, the judge defends the 18 month sentence by claiming that no credible evidence was presented about the HIV-related aspect of the case.

“The State reported that when the defendant bit the officer, the defendant screamed something to the effect that he had full-blown AIDS and the officer was going to die (the transcript is not yet prepared so this is a mere approximation). Defense counsel cast doubt on that statement because there is no mention of any such statement in the police report or any of the discovery packet. A statement of that magnitude, defense argued, would have surely been included,” says Arrington via e-mail.

So, Judge Arrington ignored that fact that the man had HIV and sentenced him as he would have an HIV-negative cop-biter.

That, I believe, is ultimately fair; and that kind of equal treatment (regardless of the reasons for it) is what I ask of courts and judges everywhere.

Update: October 4th. Judge Arrington has written a two page letter responding to the paper’s criticism, which has been rebuked by the editor.

Ireland, UK, US: Spitting and biting cases highlight police ignorance

Whether its Fort Mill, South Carolina; Jacksonville, Florida; Rutland, Vermont; or Wimbledon in the UK, the police and media have been over-estimating the risk of HIV transmission from biting or spitting over the past two weeks with devastating consequences for all concerned.

South Carolina: Where biting is attempted murder
In Fort Mill, a man who bit his neighbour in a fight had his charges upgraded from simple assault to assault and battery with attempt to kill once police learned of the man’s HIV status, according to a report in The Herald.

Assault and battery with intent to kill is a felony that carries a prison sentence of up to 20 years upon conviction, Fort Mill Police Capt. Bryan Zachary said. “Upon review of the facts of the case,” Zachary said, the solicitor’s office “confirmed because of the malicious intent involved that the charge of assault and battery with intent to kill was warranted.

And yet, according to local TV station WSOC the bite did not break the skin.

London: Policeman’s unnecessary agony
There may be no attempted murder charges for biting under English law, but in Wimbledon, according to This is Local London, “a policeman bitten by an HIV-positive drug addict [during his arrest] faces an anxious wait to see whether he has contracted the virus.”

And during his wait he will, according to the report, “need at least seven months of anti-viral medication.” Yet Post Exposure Prophylaxis for HIV exposure lasts just 28 days and is not actually warranted for a bite.

Vermont: Where post-spit anxiety lasts a year
A policeman in Rutland faces totally unnecessary anxiety after being spit on by an HIV-positive man who had been trying to commit suicide.

The Times Argus reports:

A man diagnosed with the virus that causes AIDS is charged with a felony for spitting into the face of a Rutland police officer who must now undergo a year’s worth of testing to discover whether he was infected with HIV. […]

It was while doctors in the emergency room were treating [the man] that he allegedly cocked his head back and spit into the face, eyes and mouth of city police Sgt. David Schauwecker, who was trying to control [his] head, according to the affidavit. [The man], who was arrested more than a week later after his release from the hospital, has no prior criminal record.

But the charge he faces now is tantamount to a life-threatening assault, according to Rutland County Deputy State’s Attorney Kathryn Smith. “The nature of this offense is extremely concerning,” Smith said. “He knows he has a deadly disease and yet he exposed another human being to that disease. … This case before us is an actual act of violence.”

“Everything in my life is basically put on hold for a year,” said Schauwecker, who will be tested every three months to look for signs of HIV. “I went there that night trying to save someone and now I’m looking at a life sentence.”

Today, the Rutland Herald ran a letter from AIDS NGO, Vermont Cares, entitled ‘Clearing up HIV myths’. They wrote:

Enforcing the myth that HIV is spread through saliva… protects the health of no one. In fact, unfounded fears about HIV transmission and misunderstanding of risk can endanger people with HIV.

To be clear, the U.S. Centers for Disease Control and Prevention offers no demonstrated cases of saliva ever transmitting HIV. Transmittable HIV is present in four bodily fluids only: blood, semen, vaginal fluids, and breast milk.

Having someone spit in your eye or mouth is definitely frightening and may transmit other pathogens from influenza to tuberculosis. However, HIV is a highly unlikely risk in this instance.

Enforcing fear and misinformation about HIV, and promoting the belief that HIV testing is a variable enough science to postpone relationships and life, would be a terrible consequence of this incident. HIV testing, by CDC recommendations, is nearly 100 percent accurate at six or even three months.

Florida: Where attempted spitting is now a felony
In late July, Jacksonville police charged a 29 year-old HIV-positive man with aggravated assault with intent to commit a felony after he attempted to spit on a police officer following his arrest for shoplifting.

The arresting officer said that on the drive to jail, [the man] started coughing and trying to spit on the officer from the back seat of the patrol car in an “effort to transmit his HIV disease.” The officer had to put a “spit mask” on [the man]’s face before taking him to jail.

The short piece on included the man’s name and photo. There are now seven pages of readers comments that range from the homo- and trans-phobic to pure HIV hatred. One reader even found and published the man’s previous (minor) criminal record. I genuinely fear for the man’s safety in- or out of jail.

Ireland: Judge concerned about police’s lack of education of HIV transmission risks of biting and spitting
The Irish Times reports that a High Court Judge, Ms Justice Mary Irvine, recently brought in a medical expert to testify over the risk faced by police of occupational exposure to HIV and other blood-borne diseases “as a result of the high number of Garda [Irish police] compensation claims involving fear of transmission of such diseases coming before the court.”

The judge awarded a policeman €8000 compensation after hearing testimony that “he had been “petrified” and suffered nightmares and sleeplessness after having been bitten during the arrest of a known drug user”.

Colm Bergin, a consultant in infectious diseases, told the court that in 10 years’ practice he had never come across a case of transmission of HIV or Hepatitis C through saliva.

The court also heard that:

  • the risk of contracting HIV or Hepatitis C from saliva can be as low as one in 100,000; and
  • that transmission of such diseases through contact with blood was also negligible.

[The judge] had expressed concern as to how well [police] were educated about risks to members contracting saliva and blood transmitted diseases through bites, spittle or needle stick injuries. “Such attacks are happening on a daily basis and there are huge numbers of compensation cases coming before the court,” the judge said. She has asked for reports on the risks involved and what is being done to reassure [police] injured in assaults as to the low level of risk.

Canada: Alberta judge, police believe that spitting transmits HIV

An Edmonton, Alberta man who claimed he was HIV-positive and then spat in the eye of a police officer has been sent to prison for five months for assaulting a peace officer, with the policeman’s fear of infection being an aggravating factor in sentencing. The man was later (mandatorily?) tested and found not to be HIV-positive.

According to the Edmonton Sun, Judge Michael Stevens-Guille requires some HIV transmission training like his Ontario counterpart Jon-Jo Douglas.

“Spitting is disgusting,” said Judge Michael Stevens-Guille, pointing out that, years ago, expectorating on someone was not considered to be worse than punching the person in the nose. However, as a result of the dangers of transmitting communicable diseases, it is now considered far more dangerous and there is a need to protect people like the police from such perils, said Stevens-Guille. The judge also noted it was aggravating that the police officer involved was “very frightened’ by the potential he might have contracted the HIV virus and had to go through the worry of waiting for blood test results.

I agree with Judge Stevens-Guille on just one point: spitting is disgusting. However, although being spat upon is unpleasant, and may be a symbolic assault, it is not a way to transmit HIV.

Read this fascinating blog entry from Sally’s Trove on what can be transmitted by spitting, and the history and legacy of US spitting laws.