Italy: Condom use within marriage now grounds for divorce, even if one partner is HIV-positive

Slightly off-topic, but according to reports from admittedly rather suspect sources, Italy’s highest court has ruled that a previous decision by the Vatican Court – to nullify an 18-year marriage because the husband had used condoms to prevent passing on a chronic illness that can be transmitted via sex – can stand, and that a marriage without the purpose of children is not legal, even if there are health concerns over unprotected sex.

The ruling means that husbands and wives would risk divorce if they refused unprotected sex – even if their partner suffered from HIV.

If this is, indeed, true, then this is a perfect example of how combining an illogical belief system with the law is a dangerous combination.

Story, from the Austrian Times, also picked up and published in The Daily Star.

Safe sex in marriage illegal says Italian court

Austrian Times

21. 01. 09.
Italy’s highest court has ruled that having sex with a condom is grounds to end a marriage.

The country’s Supreme Court has confirmed a decision by the Vatican Court to nullify a couple’s 18-year marriage because they had practised safe sex.

The husband, who was identified only as Fabio N for legal reasons, suffers from a crippling rheumatic condition called Reiter Syndrome which is transmitted through sex. His wife, identified only as Elisabetta T for legal reasons, began religious divorce proceedings in 2003.

Italy’s highest court ruled that a marriage without the purpose of children is not legal, even if there are health concerns over unprotected sex.

The ruling means that husbands and wives would risk divorce if they refused unprotected sex – even if their partner suffered from HIV.

Canada: Ontario judge ‘humbled’ after revealing HIV ignorance

An Ontario judge whose ignorance of how HIV is transmitted got him into hot water last January has

“acknowledged that his behaviour was inappropriate” and taken steps to address the concerns raised by his conduct during trial, including seeking information about HIV from a local group…

Although extreme, the judge’s behaviour highlights how the judicial system can be prejudiced against people with HIV. But if you’re a regular reader of this blog, you don’t need me to tell you that.

Update: Although the story from The Vancouver Sun (below) appeared to be the end of the matter, an article in the January 26th issue of Xtra questions whether it is possible for the judge to overcome his prejudice in one day.

In reply to the complainants the [Ontario Justice Commission] wrote that Douglas has admitted that his actions were wrong and has been educated about HIV by visiting the AIDS hospice Casey House one day last summer.

“Staff who work with the patients daily provided judge Douglas with a better understanding of the science, of the disease and of the people affected by the disease,” wrote OJC registrar Marilyn King.

The visit to Casey House was conducted in secret. It only came to light after media outlets received a copy of the reply King sent to a complainant.

Brian Finch, an HIV-positive activist, says he doesn’t think one visit is sufficient.

“Such ignorance in this day and age, I don’t think one day is enough,” he says. “I don’t know what is enough but it does seem kind of like going through the motions. How is someone like that going to deal fairly with HIV criminalization? Somehow when it comes to HIV the presumption of innocence in our justice system is reversed.”

Later in the article, Richard Elliot, executive director of the Canadian HIV/AIDS Legal Network notes:

“I would hope at a minimum it would include basic information about HIV and how it’s transmitted and how it’s not transmitted,” he says. “It should include information about the risk of infection associated with various sexual acts, which is also sometimes at play in some cases that come before judges.”

Elliott says judges also need to learn about the realities of HIV transmission in other circumstances.

“There’s an often-inflated sense of what the risks are,” he says. “We certainly see that when talking about occupational risk for police, paramedics, firefighters which can lead to compulsory HIV testing.”

Education should also include more information about the communities most affected by HIV, says Elliott.

“It needs to try to get judges more conscious of the context in which their decisions take place,” he says. “There should be one or more people living with HIV or people from the particular communities most affected by HIV.”

Education is badly needed, says Elliott, but some judges may not be willing to learn.

“To a great extent it depends on the individual judges,” he says. “There will probably be some who are less open to it. But it’s fairly urgent. It’s past due, but better late than never. We don’t control the timing.”

Ont. judge rebuked for HIV comments
By Megan O’Toole, National Post
January 9, 2009

TORONTO — An Ontario judge who asked a witness with HIV to wear a mask while testifying has been humbled by an Ontario Judicial Council decision that includes a recommendation to better educate judges about the disease.

Justice Jon-Jo Douglas has “acknowledged that his behaviour was inappropriate” and taken steps to address the concerns raised by his conduct during trial, including seeking information about HIV from a local group, according to the council’s finding.

Ontario’s Chief Justice also suggested that material on HIV/AIDS should be included in future educational sessions for judges.

AIDS groups on Friday lauded the findings.

“The bigger picture here is making sure that judges do have appropriate information and they don’t approach their jobs with misinformation about HIV,” said Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network.

“There is no place for such misinformation and prejudice anywhere, especially in the justice system,” added Ryan Peck, executive director of the Ontario HIV and AIDS Legal Clinic. “People living with HIV deserve equal, respectful treatment.”

Douglas sparked outrage among the two AIDS groups in December 2007 after telling a Crown attorney he would hear no further evidence until a witness who had HIV and hepatitis C was either masked or moved into a separate courtroom to testify.

When Crown attorney Karen McCleave told the court she was not aware of any health concerns that would arise with the presence of the witness, the judge responded: “The HIV virus will live in a dried state for year after year after year and only needs moisture to reactivate itself,” transcripts said.

McCleave also produced an affidavit from an expert in infectious disease who said there was no risk of transmission without direct exposure to blood, semen or vaginal fluid.

An application to have Douglas removed from the case was denied by the Ontario Superior Court of Justice, but he later removed himself voluntarily.

As a result of a complaint launched by the two AIDS groups, the judicial council launched a probe into the judge’s behaviour.

Canada: Ontario judge investigated for misconduct due to HIV ignorance

This story, from today’s Toronto Star requires no comment from me!

Judge’s ignorance of AIDS draws fire
Witness with HIV forced to wear a mask in court, groups complain
January 30, 2008
Tracey Tyler
Legal Affairs Reporter

The HIV virus will live in a dried state for year after year after year and only needs moisture to reactivate itself’ Justice Jon-Jo Douglas said, according to a transcript of a Nov. 23 trial.

An Ontario judge is at the centre of a misconduct investigation after insisting a witness who is HIV-positive and has Hepatitis C don a mask while testifying in his courtroom.

Three groups have complained to the Ontario Judicial Council about the conduct of Barrie judge Justice Jon-Jo Douglas, who later moved the case to a bigger courtroom in order to create more distance between the witness and the bench.

The judge refused to accept Crown counsel Karen McCleave’s entreaties there was no need for such measures.

“The HIV virus will live in a dried state for year after year after year and only needs moisture to reactivate itself,” Douglas insisted, according to a transcript of the Nov. 23 trial proceedings.

“This is outlandish,” Bluma Brenner, an assistant professor at the McGill AIDS Clinic at McGill University in Montreal, said yesterday. A drop of human immunodeficiency virus drying on the floor “would be inactivated within 20 minutes,” Brenner said in an interview.

But Douglas, a former Crown attorney appointed to the Ontario Court of Justice 10 years ago, was not prepared to continue the trial until he was satisfied “the safety and integrity of this courtroom” was protected.

“I mean, he speaks within two feet of me with two serious infectious diseases,” Douglas told McCleave. “Either you mask your witness and/or move us to another courtroom or we do not proceed.”

At one point, court staff returned after a recess wearing rubber gloves and placed documents touched by the witness in plastic bags.

Douglas, who continues to preside in Barrie, declined to speak with the Star yesterday.

In their Jan. 17 letter of complaint, the Canadian HIV/AIDS Legal Network and the HIV and AIDS Legal Clinic (Ontario) say Douglas’s response to the witness, a complainant in a sexual assault case, reveals “shockingly discriminatory thinking” and is a “particularly extreme example of unacceptable conduct by a judicial officer.”

The organizations say the case also raises questions about the extent to which judges are informed about HIV/AIDS and related human rights issues.

Their complaints target not only Douglas, but two courts – his own and the Superior Court of Justice, for failing to clearly condemn the behaviour.

The Crown applied to the Superior Court of Justice to have Douglas removed from the case for creating an appearance of bias. But Justice Margaret Eberhard declined, saying while his approach may have been wrong, Douglas had jurisdiction to take the steps he felt necessary to ensure courtroom safety.

Ontario’s Criminal Lawyers Association has also lodged a complaint with the judicial council. The lawyers’ group contends Douglas did not bring a judicial temperament to trial proceedings and treated a witness differently on the basis of irrelevant personal characteristics. Contacted yesterday, association president Frank Addario declined to discuss the allegations. The complaints are being investigated by a judicial council subcommittee, which will determine if a public inquiry into Douglas’s fitness to remain on the bench is warranted.

Meanwhile, Douglas hastily resigned from the board of Stevenson Memorial Hospital in Alliston on Jan. 14, just over a month after he was appointed.

The controversy surrounding the witness began on Nov. 23, during the trial of a man charged with sexually assaulting a fellow inmate at the provincial jail in Penetanguishene.

The alleged victim testified he was HIV-positive and had Hepatitis C, but didn’t inform his alleged attacker because he was traumatized. “I could be … shanked,” said the man, whose identity is shielded by a publication ban.

According to a trial transcript, during the lunch break, Douglas bumped into defence lawyer Angela McLeod and voiced concern the witness had been allowed to testify without the court being informed of his health status.

When court resumed, Douglas raised the issue with McCleave, the Crown attorney as well. “I am frankly shocked that in this day and age we were not advised,” he said.

McCleave replied she knew of no issues arising from the witness being in the courtroom or touching “a couple of pieces of paper” that were introduced as evidence.

That’s when Douglas offered his view that HIV will live “for year after year after year” in a dried state.

McCleave explained that she wasn’t prepared to ask the witness to wear a mask in court when he faces no such requirement in the community. There were also practical problems with the judge’s request, she suggested – the court reporter might not be able to accurately record his testimony.

Douglas refused the Crown’s request to grant a mistrial, declined to recuse himself from the case and refused to consider granting bail to the accused, Lee Wilde, when it became clear the trial would have to be adjourned until the judge’s concerns were addressed.

A new trial will begin Feb. 14.

An official with the National Judicial Institute in Ottawa, which has developed educational programs for judges, said while the curriculum addresses “emerging social issues,” there’s no course specifically addressing HIV/AIDS – though one is being planned. It should be up and running within “a couple of years,” she said.

Australia: Judge slams ‘inadequate’ sentences for ‘reckless’ HIV transmission

Penalty for reckless HIV sex ‘inadequate’

The Australian | Natasha Robinson | December 04, 2007

A MAGISTRATE has criticised the inadequate punishment of HIV-positive offenders whose reckless sexual behaviour contributes to the spread of the disease.

Magistrate Greg Connellan said yesterday the maximum five-year jail term set down by the Victorian parliament for the crime of reckless conduct endangering serious injury was inadequate for HIV cases.

The magistrate’s comments came as Sudanese migrant Lam Kuoth, 28, appeared in the Melbourne Magistrates Court yesterday and admitted having unsafe sex with a woman in defiance of public health orders that required him to use a condom.

Kuoth pleaded guilty to two charges of reckless conduct that put his victim at risk of contracting HIV.

The offence occurred on April 22, almost three weeks after Kuoth was placed on an order under Victoria’s Health Act to practice safe sex and advise others of his HIV status.

A police summary tendered to the court revealed that a psychologist had warned Victoria’s Department of Human Services that Kuoth was at “high risk of infecting others with HIV” 11 days before he committed the offence. Kuoth was detained and placed in isolation in a psychiatric hospital on April 27.

Mr Connellan told the court during yesterday’s hearing that exposing a sexual partner to the risk of contracting HIV was “an altogether much more serious matter” than the maximum five-year penalty for the charge of reckless conduct endangering serious injury would indicate.

“In my view, the five-year maximum penalty applicable to that offence is not really an adequate reflection of the seriousness of that offending,” Mr Connellan said. “The anguish caused to the complainant over a significant period of time is one important indication of the seriousness of these matters. The nature of the offending goes to the heart of significant public health protection issues.”

The case comes eight months after Victoria’s former chief health officer Robert Hall was sacked after failing to isolate a man accused of spreading HIV to multiple victims.

Kuoth will face the Victorian County Court on February 21.

India: Delhi judge allows man to divorce wife because she is HIV-positive

In the first case of its kind, a Delhi court granted divorce to a man because he could not have sexual intercourse with his HIV-positive wife. Additional district judge Rajnish Bhatnagar allowed the divorce petition filed by the husband on the ground that “marriage without sex is anathema”.

Holding the wife guilty of not disclosing to her husband her HIV- positive status, the judge said the petitioner was subjected to cruelty because of this. Bhatnagar added: “The disease being sexually communicable, the petitioner cannot be reasonably expected to live with her and lead a happy married life.”

The petitioner had married the respondent who was working with the Kalawati Saran Hospital in Delhi on October 2, 2000. The couple apparently never had a “cordial” sexual relationship after marriage.

In March 2001, the petitioner said his wife conceived. Her doctor advised to undergo the HIV-1 and ELISA tests during pregnancy. The ELISA test, conducted during the third month of the pregnancy, revealed she was HIV-positive. Claiming the test was erroneous, the petitioner’s wife told him she would get another test done in the seventh or eighth month. The petitioner, however, compelled his wife to undergo another test which also declared her HIV-positive. She got her baby aborted on July 23, 2001.

© Copyright 2007 Hindustan Times