Galletly CL, Lazzarini Z. Charges for Criminal Exposure to HIV and Aggravated Prostitution Filed in the Nashville, Tennessee Prosecutorial Region 2000-2010.

Charges for Criminal Exposure to HIV and Aggravat… [AIDS Behav. 2013] – PubMed – NCBI

This paper examines comprehensive data on arrests for HIV-specific crimes within a single jurisdiction, the Nashville Tennessee prosecutorial region, over 11 years. There were 25 arrests for HIV exposure and 27 for aggravated prostitution. Eleven of the arrests for HIV exposure involved nonsexual behaviors; none alleged transmission. Sixteen of the arrests for HIV exposure involved sexual behavior; three alleged transmission. Aggravated prostitution cases (i.e. prostitution while knowing one has HIV) often involved solicitation of oral sex; none alleged transmission. Maximum sentences for HIV-specific crimes ranged from 5 to 8 years. We conclude that enforcement of US HIV-specific laws is underestimated. Fifty-two arrests over 11 years were recorded in one jurisdiction. Over half of the arrests involved behaviors posing minimal or no HIV transmission risk. Despite concerns about malicious, intentional HIV transmission, no cases alleged malice or intention.

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?

Austria: HIV-positive man aquitted for ‘oral sex without ejaculation’ (Update)

Update: December 18th

A gay man on trial for allegedly exposing his ex-partner to HIV during ‘oral sex without ejaculation’ has been acquitted. The judge told the 37 year-old defendant that he had acted “entirely properly” according to Austria’s ‘safer sex’ guidance.

The case is covered in several Austrian newspapers, including Der Kurier and Der Standard, as well as the gay news portal, GGG.at.

It centred around a complaint following the end of a short-lived relationship between summer 2008 and spring 2009. The defendant was diagnosed HIV-positive during the relationship and waited several months to disclose this to the complainant. However, since he was counselled by his doctor that insertive oral sex without ejaculation would not expose his partner to HIV, and this was the only sexual risk at issue, his defence was that he had followed Austria’s ‘safer sex’ guidance.

Defence laywer, Helmut Graupner, told the court: “They are attempting to criminalise people who do exactly what the state wants them. This accusation is simply a scandal.”

(Under Articles 178 and 179 of Austria’s criminal code, disclosure is not a defence to potential HIV exposure, and so this case was not about non-disclosure, per se, but rather about whether the complainant was, in fact, exposed to HIV via oral sex without ejaculation.)

The complainant claimed on the witness stand that he had suffered mental anguish due to the fear of acquiring HIV, and he had brought the case partially because he wanted compensation for this.

However, Judge Eva Brandstetter agreed with the defence that ‘safer sex’ guidance was followed. It was “very clear that you behaved entire properly,” she told the defendant as she acquitted him.

The prosecution has until Friday to appeal the acquittal.

Original post: December 14th

Austria’s leading HIV and human rights lawyer has strongly criticised both Vienna’s prosecutorial authorities and the Austrian Ministry of Justice for allowing the forthcoming trial of an HIV-positive man for practising safer sex – namely, “oral sex without ejaculation”.

“The state must not criminalise HIV-positives for complying with the safer sex rules propagated by the same state“, says Dr. Helmut Graupner, president of Austria’s LGBT civil rights organisation Rechtskomitee LAMBDA (RKL) – who is also serving as counsel for the defendant – in a strongly-worded press release (see below). “This prosecution not only constitutes a serious human rights violation but also poses a considerable threat to public health.”

In addition Austrian MP Petra Bayr has tabled a parliamentary question to the Ministry of Justice concerning this ridiculous prosecution which asks:

  • whether Parliament is aware of this prosecution;
  • what it intends to do to ensure that prosecutors are aware of HIV tranmisssion risks and science;
  • how it can justify HIV-related prosecutions under articles 178 and 179 of the criminal code when UNAIDS recommends against such prosecutions and asks whether Parliament will consider amending these articles to reflect up-to-date science; and
  • what measures are being considered by the Justice Department to ensure consistent and science-based jurisprudence that promotes public health.

This is the second prosecution this year for perceived HIV exposure that, in fact, posed no risk whatsoever. In March 2012, a 17 year-old boy was convicted of HIV exposure after his 16 year-old girlfriend performed oral sex on him without him first disclosing that he was living with HIV. The judge said that even oral sex with condom would have been criminal as the use of condoms would not diminish the risk of infection.

The trial will take place this Monday, 17 December 2012, in room 307 at the Vienna Regional Criminal Court, Wickenburggasse 22, 1080 Vienna. Rechtskomitee LAMBDA’s press release notes that the trial is public which suggests that concerned HIV advocates could attend the trial to support the defendant (who cannot be named) and to show the prosecutor and judge that such prosecutions are out of step with science and do nothing for HIV justice.

The full Rechtskomitee LAMBDA’s press release can be downloaded here and is also reproduced below.

Austria: HIV-positive Man Prosecuted for Safer Sex

Trial next Monday in Vienna

An HIV-positive man stands criminal trial next week for practising safer sex propagated by the state and by the publicly funded aids service organisations. The prosecutor indicted him for “oral sex without ejaculation” (!), exactly what has been propagated as safer sex for decades.

The prosecution relies on Art. 178 of the Criminal Code (“wilful endangering of human beings by transmittable diseases”), an offence which for two decades had been used to convict persons (mostly women) even for sexual intercourse using a condom.

1997 the Supreme Court at last held that sexual intercourse with a condom is in accordance with the safer sex rules and no criminal offence (OGH 25.11.1997, 11 Os 171/97). And 2003 it was only after years of reopening-proceedings that the Graz Appeals Court to quash the conviction of an hiv-positive man for oral sex without ejaculation (Carinthian Oral Sex Case: http://www.RKLambda.at/news_safersex.htm). Already these days Austria´s then Minister for Health, Herbert Haupt, had stated, “that criminal persecution and conviction of hiv-positive persons for sexual contacts with hiv-negative persons in spite of them complying with the health authorities’ and aids-service-organisations´ safer sex rules run counter to effective hiv- and Aids-prevention (2313/AB XXI.GP, http://www.parlament.gv.at/PAKT/VHG/XXI/AB/AB_02313/).

Threat to effective HIV-prevention

Austria finds itself within the top ten worldwide regarding criminal conviction rates of hiv-positive persons (http://www.gnpplus.net/criminalisation/node/1262). Germany never had such a special offence and Switzerland recently restricted its law (which never had been as far-reaching as the Austrian one) to infection with malicious intent, thereby implementing a recommendation by the Swiss Commission on Aids (now: Swiss Commission on Sexual Health) (http://www.bag.admin.ch/hiv_aids/05464/12494/12821/, document for download on the right side). UNAIDS and the EU-Fundamental Rights Agency for years have been calling for a repeal of such criminalisation of HIV-positive persons and for restriction of criminal offences to intentional infection (http://www.unaids.org.fj/index.php?option=com_content&view=article&id=162:unaidsundp-policy-brief-criminalization-of-hiv-transmission-&catid=25:technical-documents&Itemid=74; http://fra.europa.eu/en/publication/2010/rights-based-approach-hiv-european-union, http://www.hivjustice.net/oslo/oslo-declaration/).

Accordingly the Austrian Minister of Justice in 2010 on the occasion of the Vienna World Aids-Conference had assured that Austrian criminal law would not criminalize sexual acts in accordance with the safer sex rules and declared that the prosecutors would be informed to this effect (4941/AB, 2 June 2010, http://www.parlament.gv.at/PAKT/VHG/XXIV/AB/AB_04941/).

Double game played by the (Minister of) Justice?

Nevertheless last spring a 17 year old juvenile has been convicted for oral sex (without the allegation of ejaculation) with the judge even claiming that the use of a condom would not have made a difference (http://vorarlberg.orf.at/news/stories/2523707/). And now in Vienna the prosecutor is indicting a man explicitly even for oral sex without (!) ejaculation, behaviour explicitly propagated by the health authorities´ and the aids-service-associations´ (http://www.aids.at/alles-uber-hivaids/wie-kann-ich-mich-schutzen/; http://www.aidshilfen.at/sie-haben-fragen-wir-haben-antworten; https://www.gesundheit.gv.at/Portal.Node/ghp/public/content/Safer_Sex.html).

The trial takes place next Monday, 17 December 2012 in room 307 at the Vienna Regional Criminal Court, Wickenburggasse 22, 1080 Vienna. The trial is public. Revealing the defendant´s identity in the media is strictly prohibited (§§ 7 & 7a Media Act).

Members of federal parliament have tabled a parliamentary question to the Ministry of Justice concerning this incredible prosecution (13275/J, 6 December 2012, http://www.parlament.gv.at/PAKT/VHG/XXIV/J/J_13275/).

“The state must not criminalise HIV-positives for complying with the safer sex rules propagated by the same state“, says Dr. Helmut Graupner, president of Austria’s LGBT civil rights organisation Rechtskomitee LAMBDA (RKL) and counsel for the defendant, “This prosecution not only constitutes a serious human rights violation but also poses a considerable threat to public health.”

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.”

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.

Inspired new phase of AIDS Action Now! Think Twice campaign

As the next phase of AAN!’s ongoing Think Twice campaign, today we sent letters to the Ontario Crown Prosecutors who have brought forward HIV non-disclosure prosecutions, and to their bosses. Crown Prosecutors, a.k.a. Crown Attorneys, play a pivotal role in our criminal justice system. They wield enormous power.

US: HIV Medicine Association calls for repeal of HIV-specific laws

The HIV Medicine Association (HIVMA) of the Infectious Diseases Society of America (IDSA) has issued a strong statement urging the repeal of HIV criminalisation statutes in the United States.

The HIVMA statement, which represents physicians, scientists and other health care professionals across the United States, demands the following:

  • An end to punitive laws that single out HIV infection and other STIs and that impose inappropriate penalties for alleged non-disclosure, exposure and transmission
  • All state and federal policies, laws and regulations to be based on scientifically accurate information regarding HIV transmission routes and risk;
  • A federal review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offences to identify harmful policies and federal action to mitigate the impact of these laws, including the repeal of these laws and policies or guidance for correcting harmful policies; and
  • Promotion of public education and understanding of the stigmatising impact and negative clinical and public health consequences of criminalisation statutes and prosecutions.

The HIVMA statement is another extremely important development in the Positive Justice Project’s campaign to repeal HIV-specific criminal laws in the United States.

In March 2011, the National Alliance of State and Territorial AIDS Directors (NASTAD) – a highly-respected organisation of public health officials that administer state and territorial HIV prevention and care programmes throughout the US – issued a similar statement.

The full HIVMA statement, which can be downloaded here, is published below.

HIVMA URGES REPEAL OF HIV-SPECIFIC CRIMINAL STATUTES

(Approved: October 16, 2012)

The HIV Medicine Association (HIVMA) of the Infectious Diseases Society of America (IDSA) represents physicians, scientists and other health care professionals who practice on the frontline of the HIV/AIDS pandemic. HIVMA strongly advocates public policies that are grounded in the science that has provided the tools and knowledge base to envision a world without AIDS.

Stigma and discrimination continue to be major impediments to the comprehensive response necessary to address the HIV public health crisis. Policies and laws that create HIV-specific crimes or that impose penalties for persons who are HIV- infected are unjust and harmful to public health around the world.

In the U.S., HIV criminalization has resulted in unacceptable human rights violations, including harsh sentencing for behaviors that pose little to no risk of HIV transmission. Thirty-two states and two U.S. territories have HIV-specific criminal statutes. Thirty-two states have arrested or prosecuted individuals with HIV infection for consensual sex, biting and spitting. These laws and prosecutions unfairly target individuals with HIV infection and are not based on the latest scientific knowledge regarding HIV transmission, including the finding that transmission risk from biting or spitting is negligible.

Individuals with HIV infection can live healthy lives and approach near normal life expectancies with access to HIV care. Early diagnosis and effective management of HIV infection not only improves clinical outcomes for infected individuals but significantly reduces their risk of transmitting the virus to others. Laws that criminalize HIV infection discourage individuals from learning their HIV status and from receiving care. In doing so, they jeopardize the lives of HIV-infected individuals and place more individuals at risk of contracting an infectious disease that remains fatal if untreated.

HIV-specific criminalization fuels the stigma associated with HIV infection that slows efforts to combat the disease. Despite the availability of highly effective treatment for HIV infection, of the 1.1 million individuals living with HIV infection in the U.S., nearly 20 percent remain undiagnosed, only 37 percent are in care and just 25 percent have undetectable levels of the virus in their blood which makes it unlikely for them to be infectious to others.

All individuals must take responsibility for protecting themselves from HIV infection and other sexually transmitted infections (STIs). All persons engaging in unprotected or potentially risky sexual behavior are encouraged to discuss and disclose HIV and STI status except in situations where disclosure poses a risk of harm.

HIVMA Position: 

HIVMA urges a coordinated effort to address and repeal unjust and harmful HIV criminalization statutes. We support the following:

  • An end to punitive laws that single out HIV infection and other STIs and that impose inappropriate penalties for alleged nondisclosure, exposure and transmission;

    All state and federal policies, laws and regulations to be based on scientifically accurate information regarding HIV transmission routes and risk;

  • A federal review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses to identify harmful policies and federal action to mitigate the impact of these laws, including the repeal of these laws and policies or guidance for correcting harmful policies; and
  • Promotion of public education and understanding of the stigmatizing impact and negative clinical and public health consequences of criminalization statutes and prosecutions.

 

Western Australia police want mandatory testing following biting or spitting incidence

The Adelaide, Australia, Police Association is requesting new laws to end the six-month wait for medical clearance for police officers who may have been exposed to bodily fluids in the course of their duties.

UNDP report looks at links between sex work, HIV and the law

New UN report takes a stark look at links between sex work, HIV and the law in Asia and the Pacific 18 October, Bangkok — Nearly all countries of Asia and the Pacific criminalize some aspects of sex work.

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.