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.

US: Miami man gets 15 years in prison for biting cop

A 35 year-old man with mental health issues, and characterised as a “drifter”, has been sentenced to 15 years in prison “for threatening to kill with his illness then biting a Miami cop.”

If this case doesn’t exemplify HIV-related ignorance and stigma amongst law enforcement and the judiciary, I don’t know what does.

According to the report from the Miami Herald, Johnson Jamerson

a former furniture delivery man who suffers from schizophrenia, was arrested in January 2008 for trespassing after he was found sleeping under the Interstate 395 bridge at North Miami Avenue. On a police bus later, Jamerson slipped out of his handcuffs. [Officer Matthew] Hall grappled with him. Wile struggling on the ground, Jamerson yelled out that he had HIV, the virus that causes AIDS, threatened to kill Hall and then sank his teeth into the officer’s right shin…He bit through Hall’s pants, drew blood and caused a permanent bruise.

Originally charged with attempted murder, a jury found him guilty of the lesser charge of aggravated battery on a law enforcement officer in June.

Circuit Judge Daryl E. Trawick was told by Miami-Dade prosecutor Ankur Sevak that although Officer Hall was not infected,

doctors did not clear him for eight anxious months. “He could not have any contact with his wife or children for fear he could severely affect them.”

Obviously, the cop experienced a tremendous (and unnecessary – as you will see below) amout of mental and emotional suffering, reflected in the sentence, but how much of this suffering is Mr Jamerson’s fault?

As I have written in a previous blog post about the police overreacting to the risk of HIV transmission from a bite, the risk of transmission is so low that PEP is not really warranted – and it certainly has never been proven to reduce the risk of transmission in such cases. The fact that the cop was worried enough to take PEP is not Mr Jamerson’s fault.

In addition it should not have taken eight months from the incident for the cop to have been considered to be definitely HIV-negative – a viral load test (PCR testing) could have figured that out within a few weeks. Again, that is not Mr Jamerson’s fault.

And as for the cop not having “any contact” with his wife or children – surely he was counselled that he could not transmit HIV casually. But then, if he believes he can get HIV from a bite, I guess he probably thinks he could pass it on via sharing cutlery or a toilet seat, just like 5% and 4% respectively of the UK public surveyed in 2004.

Once again, that is not Mr Jamerson’s fault.

Then again, it seems Miami police doctors appear to give PEP for three-times longer than any study has ever found it to be necessary.

“For three months afterward, I had to take a cocktail of medication three times a day, causing diarrhea, vomiting, nausea — everything you can think of,” Hall, a Coconut Grove patrolman, said after the sentencing.

What is strange is that, if he is telling the truth about his experience of PEP, he appeared to be following guidelines to take drugs that are way out-of-date: no HIV regimen needs to be taken three times day.

However, it seems that the US Centers for Disease Control’s PEP guidelines were last updated in 2005 and the currently recommended PEP regimen for basic 2-drug PEP is Combivir (AZT and 3TC in a single pill, taken twice a day) for 28 days.

Amazingly, the guidelines still include an option to take the drugs separately, and for AZT to be given three times a day. This is ridiculous and totally unnecessary. So, perhaps I can’t blame it all on the ignorance of the police and judiciary: the CDC need to update their PEP guidelines to prevent unncessary suffering. And by unnecessary suffering, I’m talking about Mr Jamerson as well as Officer Hall.

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 firstcoastnews.com 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.

US: New HIV as a ‘deadly weapon’ case in North Carolina (updated)

Another US jurisdiction has classified a person living with HIV as a walking deadly weapon. North Carolina police yesterday charged a 45 year-old HIV-positive man with “assault inflicting serious bodily injury and assault with a deadly weapon” after he resisted arrest in Durham.

According to a brief report in The News & Observer, the police report says that the man

knowing he is HIV-positive, twice tried to expose the officer to his blood, once by cutting the officer’s thumb and also by head-butting him and biting his ear.

This prompted one local citizen to write in the comments section

This was a vicious act. If the officer had escalated the continuum of force level to shooting and killing this person he wwould [sic] have been justified. We don’t know how this individual acquired HIV and that doesn’t matter in that a decent human being would not knowingly have exposed another to the disease.

Another wrote

BoldThis event should lead to a charge of attempted murder because that is what it is. This act by this infected man is willful and intentional. May God be with the officer and find him or her free and clear of this dreadful disease.

The man, who was also charged with “injury to real property and unauthorized use of a motor vehicle,” will appear in court on June 29th.

Update: June 23rd

The man actually appeared in court yesterday. The hearing was filmed by local TV station, News14.

It is now patently clear to me, from the details revealed, that the risk of HIV transmission from the acccused to the police officers was so slim as to be negligable.The facts are that he cut a police officer’s right thumb while he was bleeding (interestingly, it doesn’t say how he got to be bleeding) while that officer was trying to arrest him (and it doesn’t say that he intentionally did so). He also didn’t actually bite the other policeman’s ear, but only “tried to bite that officer’s ear”.

And yet, Judge William Marsh III tells the court

“If Mr. Perry is engaged in the behaviour described, knowing that he has a potentially fatal condition with the ability to infect others, I consider that a serious offence, and could very well have potential to be increased to something more serious.”

This still suggests that when someone who is HIV-positive resists arrest, they can be seen as being ‘deadly weapons’ in the absence of any real possibility of transmitting the virus. This surely is a prime example of HIV-related discrimination based on ignorance and stigma.

Canada: Hamilton woman pleads guilty to HIV exposure

A 28 year-old woman from the same Ontario town as Johnson Aziga yesterday pleaded guilty of one count of aggravated sexual assault for not disclosing her HIV status to a man she met for a one-night stand in 2007. She will be sentenced in August.

The case was reported today in The Toronto Star and highlights the real problems HIV-positive Canadians are facing due to the current oppressive, discriminatory – and ultimately harmful – legal obligation to disclose before sex. When the woman was arrested in March 2007, police held a press conference saying the woman posed “huge threat”. According to the CBC website on the day of the press conference:

Det. Joseph De Lottinville called [the woman] “a huge threat” to public safety, amid police fears that she deliberately slept [my italics] with a number of people without revealing that she had HIV, the virus that causes AIDS.

Police allege that [she] has known of her HIV status since March 2003, but didn’t follow the legal requirement that people with HIV disclose the condition to sexual partners.

Officers said [she] is believed to have frequented several bars in the Greater Toronto Area, specifically in Hamilton, Brantford and Toronto, particularly in its downtown Entertainment District.

More than 10 men who allegedly had sexual contact with her are being interviewed by police.

This is phrased slightly differently on CityNews.ca, published the same day:

The 26-year-old from Hamilton was arrested on Sunday and police are alerting the public of her case. They allege she deliberately withheld [my italics] her important health information in order to have sex with men she met in bars in and around the GTA.

Detectives say [the woman] frequented bars in Hamilton, Brantford and Toronto on a regular basis and had sex with men she met at those establishments. She was diagnosed with HIV four years ago.

[She] deliberately failed to tell [my italics] one Toronto man about her HIV-status, according to police, and allegedly did the same to other men in order to have sex with them, often unprotected. Authorities are urging anyone who’s had sex with her to seek medical attention immediately.

“From what we’ve learned, she will disclose it sometimes and she won’t disclose it on other times,” Det. Joseph De Lottenville said Thursday.

The use of ‘deliberate’ in these different ways is really interesting. The first allegation that she “deliberately slept with a number of people without revealing that she had HIV” suggests that she intended to infect these men. However the second allegations, that she “deliberately failed to tell” one man that she had a one-night stand with that she was HIV-positive, is purely about nondisclosure. The knee-jerk reaction of the police was to create the myth of a female ‘HIV predator’ when the reality was that she and another man agreed to have (or probably did not even discuss) unprotected sex, putting themselves equally at risk – she of infecting another to HIV, he of becoming infected with HIV. I assume the man had the capacity to protect himself. Did he really need to be specifically warned about the risks? Why, then, is he is not held responsible for putting himself at risk?

And so, even after police released the woman’s name and photo for their ‘fishing expedition’, and even after interviewing more than ten of her other past sexual partners, she was still only charged with one count of aggravated sexual assault for nondisclosure. How then was this woman “a huge threat”? Aren’t the ten or more men who slept with her without using condoms who will have gone on to sleep with others, much more of a threat?

Canada: Prosecutions having negative impact on disclosure; Edwin Cameron speaks out

In my news story for aidsmap earlier this week, I wrote:

Over the past week, the global movement against criminalisation of HIV transmission received its biggest boost since the International AIDS Conference in Mexico last July. In rallies and meetings in Australia, Canada and Sweden leading judges, lawyers and politicians joined with HIV-positive advocates and civil society organisations to condemn the criminal justice system’s current approach to HIV non-disclosure, exposure and transmission.

I’ve already posted more detailed information about the Australian meeting, one of the two events in Canada, and highlighted the situation in Sweden. Below I’m posting highlights from newspaper coverage of South Africa Constitutional Court Justice Edwin Cameron’s speech in Toronto last Friday.

Update: The official text of Edwin Cameron’s address is now available from the Canadian HIV/AIDS Legal Network website. (Une version française est disponible ici). An audio recording, which captures both the passion of his delivery, and some off-the-cuff changes, is available in the same location. Video may also be made available at a later date.

The Toronto Star ran a major article headlined, Judge slams criminalization of HIV, which put forward, without critique, Mr Justice Cameron’s international policy arguments as to why Canada needs to think again about its nondisclosure law.

Canada’s relentless practice of invoking the criminal law against people with HIV and AIDS is only intensifying the stigma surrounding the conditions and contravenes United Nations guidelines, argues a judge of South Africa’s Constitutional Court, who is HIV-positive himself.

African countries that look to Canada as a world leader on human rights issues are getting the wrong message when it puts people with HIV/AIDS on trial for having unprotected sex, even when the virus has not been transmitted, Justice Edwin Cameron said yesterday.

“Canada’s wide approach to exposure offences is sending out a terribly retrograde message to other countries, especially on my own continent, in Africa,” said Cameron, who delivered the keynote speech last night to kick off a weekend symposium on HIV and human rights issues, hosted by the Canadian HIV/AIDS Legal Network.

With human immunodeficiency virus still steeped in so much stigma in Africa that many are afraid to be tested, Canada is not providing a good example of dealing rationally and justly with the epidemic, said Cameron, noting Canada is a “world leader” in targeting HIV-positive people for prosecution.

[…]

AIDS activists, Cameron said, must accept there may be instances in which criminal liability is justified, noting that one example might be the recent case in Hamilton of Johnson Aziga, convicted of first-degree murder for actively deceiving women about his HIV status and infecting them.

But Canada needs to rethink its sweeping use of the criminal law and question why it is singling out HIV-positive people for prosecution when the same Criminal Code powers are not being used against those who expose people to other potentially deadly conditions, he said.

“Let’s take, for example, the two recent health scares, swine flu and the highly, highly contagious forms of tuberculosis. We had a case where somebody got onto an aircraft with a highly transmissible form of tuberculosis, and no one ever suggested that person should be prosecuted.”

“Queer activist” Andrew Brett also wrote about Mr Justice Cameron’s speech on rabble.ca. It’s becoming clear that the fallout of the Johnson Aziga verdict is hitting HIV-positive Canadians really hard. The few I’ve spoken with personally are feeling under attack. Mr Justice Cameron, himself HIV-positive, feels their pain. Brett writes:

Earlier this year, a court in Hamilton, Ontario became the first in the world to convict a man of murder for failing to disclose his HIV-positive status to his sexual partners, two of whom later died of AIDS. Since then, criminal prosecutions have increased and the degree of charges being laid has been elevated.In some cases, Toronto police have even issued “public safety alerts” with names and photographs of HIV-positive people who allegedly failed to disclose their status, asking their sexual partners to come forward. Cameron likened this practice to a proposal by a Swaziland parliamentarian to brand people with HIV/AIDS on the buttocks.

An article published on Tuesday in Xtra.ca, entitled Attempted murder the new aggravated assault? eloquently highlights the impact this culture of fear is having in Toronto.

Rita Shahin, associate medical officer for Toronto Public Health, says that public health can be required by law to tell police if a particular individual has tested positive for HIV.

“When the police get a complaint in front of them then they will come to us with a search warrant and if we have a file on somebody then we have to produce it,” says Shahin.

However individuals who have been tested anonymously — through the Hassle Free Clinic’s anonymous HIV-testing program, for example — will not show up in public health’s records.

Although Shahin says public health hasn’t yet seen a decrease in the number of people getting tested as a result of the recent charges laid, “it’s definitely creating a lot of anxiety and especially for those people who are behaving responsibly it’s [a question of] how do they protect themselves? How do they prove that they’ve disclosed to someone?”

[Angel] Parks [coordinator of the AIDS Committee of Toronto’s Positive Youth Outreach programme] says she’s also hearing from people living with HIV/AIDS (PWAs) who are afraid that they’ll be charged even though they’ve disclosed.

“With any other criminal charge it’s always relied upon for having forensic-type evidence and these cases seems to only be based on he-said, she-said scenarios,” says Parks.

“Now they’re are even more afraid of what the consequences will be when they do disclose… like what if things fall out in a relationship where disclosure has happened? What can they do to protect themselves to ensure they can provide a credible defence if such an incident did occur?”

Because public health also deals with complaints against individuals for nondisclosure this is a scenario Shahin has seen play out.

“That’s why we have to really investigate the complaint to sort out, is it true? Is there a basis to the complaint or is it a relationship that’s gone sour where somebody’s being vindictive?”

Both Parks and Shahin recommend the recently published HIV Disclosure: a Legal Guide for Gay Men in Ontario, produced by the HIV and AIDS Legal Clinic (Ontario).

“It is meant to target gay, bi and men who have sex with men,” says Parks, “but the information contained in it is applicable really to any person living with HIV…. They talk about how to protect yourself against malicious lies or attacks.”

It’s going to take some time before public opinion catches up with the idea that the Canadian criminal justice system’s approach to HIV nondisclosure is at best flawed, and at worst, severly and negatively impacting on the human rights of people living with HIV, as this comment from a Toronto Star reader (agreed with by 15 others, and disagreed with by only one) suggests:

The carrier should still be charged: If a person with HIV has unprotected sex with another person who doesn’t have HIV and doesn’t inform his or her sexual partner that he or she has HIV, that person should be charged. I think the same would apply to someone who has herpes and doesn’t inform his or her partner that he has it. Just because the unsuspecting sexual partner doesn’t get HIV from the carrier doesn’t mean that the carrier shouldn’t be charged. It would be like saying that if you go into a bank to rob it and you are carrying a gun but don’t use the gun, you shouldn’t be charged with bank robbery. That doesn’t make sense.

No, actually, its the gun analogy that makes no sense. Or is it the case that people with HIV are now thought of in Canada not just vectors of transmission but actually walking deadly weapons? It seems that when it comes to HIV-positive people, attitudes in ‘conservative’ Texas and ‘liberal’ Ontario are exactly the same.

US: Judge gives HIV-positive pregnant woman longer prison sentence ‘to protect unborn child’ (updated)

A judge in Maine has more than doubled the prison sentence of an HIV-positive woman in order to protect her unborn child, according to a report from The Bangor Daily News. The judge admits he based the decision entirely on the woman’s HIV status.

The 28 year-old woman, from Cameroon, had previously pleaded guilty for having fake documents. She was not legally entitled to be in the United States and was planning to seek asylum. The case has now been taken up by the Maine Civil Liberties Union.

Both prosecution and defence had asked U.S. District Judge John Woodcock to sentence the woman to 114 days, or time served (she has been in custody since January 21st). However, citing the welfare of the woman’s unborn child, the judge sentenced her to 238 days (to coincide with her due date of August 29th).

Woodcock told [the woman] at her sentencing on May 14 in U.S. District Court that he was not imposing the longer prison term to punish her further but to protect her unborn child. He said that the defendant was more likely to receive medical treatment and follow a drug regimen in federal prison than out on her own or in the custody of immigration officials. The judge also said that his decision was based entirely on her HIV status. If Tuleh were pregnant but not infected with the AIDS virus, he would have sentenced her to time served.

[…]

In sentencing Tuleh, Woodcock said that the law required he take into account a defendant’s medical condition in fashioning a sentence. Although a defendant’s medical condition most often is used to lower a sentence, the judge found that there was nothing in the federal sentencing guidelines to prevent him from imposing a sentence longer than the guidelines recommended because of Tuleh’s HIV status.

“My obligation is to protect the public from further crimes of the defendant,” he said at Tuleh’s sentencing, “and that public, it seems to me at this point, should likely include that child she’s carrying. I don’t think that the transfer of HIV to an unborn child is a crime technically under the law, but it is as direct and as likely as an ongoing assault.

“If I had — if I were to know conclusively that upon release from imprisonment a defendant was going to assault another person,” Woodcock said, “I would act in a fashion to prevent that, and similar to an assault, causing grievous injury to a wholly innocent person. And so I think I have the obligation to do what I can to protect that person, when that person is born, from permanent and ongoing harm.”

The Maine Civil Liberties Union told The Bangor Daily News.

“We are enormously sympathetic to the desire to ensure that Ms. Tuleh receives adequate health care, including prenatal care,” Zachary Heiden, legal director for the MCLU, said in an e-mail. “Federal immigration law has developed in truly arbitrary and punitive ways. Here, even a federal judge could not get assurances that Ms. Tuleh would not be deported before the end of her pregnancy. He could not get assurances she would not have her medical care arbitrarily cut off. That is wrong.

“Judges cannot lock a woman up simply because she is sick and pregnant,” he said. “Judges have enormous discretion in imposing sentences, and that is appropriate. But jailing someone is punishment — it is depriving them of liberty. That deprivation has to be justified, and illness or pregnancy is not justification for imprisonment.”

The sentence was objected to primarily by the prosecution, however.

Assistant U.S. Attorney Todd Lowell objected to Woodcock’s decision. Lowell said Tuleh’s sentence set a precedent that “could affect the many other sorts of cases that come before this court in which defendants have serious medical conditions. In the end, Bureau of Prisons custody is designed to incarcerate,” Lowell told Woodcock at the sentencing hearing. “Incarceration is mostly designed for the purpose of punishment, deterrence and community protection. The Bureau of Prisons is not well-designed to accomplish necessarily the end of providing medical care to a defendant and her unborn child.”

The US Attorney’s office has appealed the sentence to the 1st U.S. Circuit Court of Appeals in Boston, but arguments will not be heard until late July. The MCLU is also planning on submitting amicus curiae briefs on the issues of HIV, pregnancy, immigration law, and prisoner rights.

Update: June 18th The woman will now give birth in hospital rather than prison after Judge Woodcock heard new evidence that she will be looked after in the community, according to a report in The Bangor Daily News.

“I recognize that the sentence turned out to be controversial,” he said. “I can certainly understand how some have misinterpreted what the court intended to do in this case.”

Woodcock said that what he had wanted to do was “to step in between the prison system and the social [safety] net” to ensure that Tuleh remained healthy and that the child was born healthy.

“At the time of the sentencing, I had no clear understanding of what the community could do,” Woodcock said.

[…]

A three-judge panel in Boston has agreed to hear the appeal on an expedited schedule, but oral arguments are not expected to be held until late July and early August. In addition to appeals filed by the prosecution and the defense, a group of 15 individuals and organizations have filed in Bangor and Boston a “friend of the court” brief in support of Tuleh.

Woodcock said Monday that he found the brief “articulate and helpful” in making his decision about whether to release Tuleh on bail.

More details at the National Advocates for Pregnant Women site here

Click here to see the results of the paper’s poll asking whether a judge should be able to impose a longer sentence in order to protect an inmate’s unborn child?

Canada: Another attempted murder charge for HIV nondisclosure; rally planned in Ottawa

A 46 year-old bisexual Toronto man has become the second man in Canada to be charged with attempted murder following allegations that he did not disclose his HIV status before having unprotected sex.

According to a Toronto Police Service news release quoted on Xtra.ca

“the accused had unprotected sexual intercourse on multiple occasions after being informed that he was HIV-positive in March 2009” and that although the charges stem from sex the accused had with a woman “his partners may have been in both the gay and heterosexual communities.”

The Montreal Gazette quotes Constable Wendy Drummond, who provides an emotive, rather than legal, reason for the attempted murder charges.

“We’re dealing with somebody’s health. This could ultimately lead to somebody’s demise, to their death.”

The man actually faces one count each of attempted murder, aggravated sexual assault, assault causing bodily harm and assault with a weapon – all of the charges are based on him not telling his female partner that he had recently tested HIV-positive and continuing to have unprotected sex with her.

As has become common practice amongst Canadian investigations, police have released a photo of the man, claiming public health interests. However, it is obviously a fishing expedition for more complainants (the more complainants, the more likely charges will stick).

CityNews.ca interprets this as follows:

Police allege that [the accused] is a menace to society. And even though they now have him in custody, they’re not sure everyone who had contact with him is still safe.

The 46-year-old (top left) is accused of having unprotected sex, despite knowing that he’d been diagnosed with HIV last March. As a result, authorities have charged him with attempted murder, aggravated sexual assault, assault causing bodily harm and assault with a weapon.

Cops know of at least one person who had sexual contact with him without knowing his status. But they say [he] was known to hang around in Toronto’s gay and straight communities, and they’re worried he may have had similar relationships with people who may not be aware of his past.

If he’s crossed your path, seek medical treatment as soon as possible, and contact police at (416) xxx-xxxx or Crime Stoppers at (416) xxx-xxxx.

Interestingly, however, the Montreal Gazette story doesn’t buy it. Although they quote Constable Drummond…

“We make their names and images known to the public out of concern that they may have had relations with other people, and may have infected other people.”

…they also include the counterpoint of Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network.

“Police say they’re public safety notices,” he said. “But it’s a police tactic. They’re using the releases as an investigative tool, to build a case against the accused.”

What’s worse, he said, is that actions like this feed into the “very persistent stigma related to HIV and people with it. It creates this image of a person with HIV as a public-health menace. This just perpetuates the misinformation, fear, hysteria and prejudice that has always surrounded HIV.”

Exactly.

RALLY IN OTTAWA, CANADA

In response to this, and other draconian measures taken by police and prosecutors against HIV-positve individuals, a grassroots collision of concerned community groups and individuals in Ottawa, fuelled by anger, and inspired by hope, have come together to condemn the criminalization of HIV. They will be rallying in Canada’s capital, Ottawa, next Wednesday June 10th 2009, between 12:30pm – 1:30pm, meeting at Parliament Hill in front of the eternal flame.

For more information visit their the Facebook event page: Stop The Criminalization of HIV Positive People!

Canada: Gay man charged with attempted murder for HIV non-disclosure

In an escalation of the usual charges facing people in Canada for allegedly not disclosing their HIV status before unprotected sex, a 28 year-old Toronto man is now facing attempted murder as well as aggravated assault charges.

How do we know this? Because the Toronto police held a press conference, making it appear as if the man was some kind of serial killer. Xtra.ca reports:

“We have reason to believe he attended Church and Wellesley and may have actually engaged in sexual activities without disclosing his HIV status,” said Const Brad Stapleton of the Toronto Sex Crimes Unit at a May 7 press conference.

There appears to be no evidence of this, but according to the Globe and Mail:

“We are appealing to the gay, lesbian, bisexual and transgender community. If you had any contact with this male, contact the Toronto sex crime unit,” Constable Stapleton said.

A more obvious fishing expedition is hard to imagine (it was issued under the smokescreen of a ‘public safety alert’). There’s scant information from any of the Toronto papers that ran stories, most of which published the man’s name and photo. The most detailed is from the aforementioned G&M:

Police laid charges after the alleged victim, who is said to have met [the man] on an Internet dating service, came forward. Police believe [he] has had sexual relations with additional people in which he did not disclose his status. Constable Stapleton said [the man] has known he was HIV positive since 2000 and has been a regular in the Church and Wellesley area for the past five years…He wouldn’t elaborate on the charges or say whether the alleged victim contracted HIV from [the accused man].

The man is due in court in Toronto for a bail hearing tomorrow.