Sweden: Health agency criticised for not co-operating with police

The Swedish Institute for Infectious Disease Control has revealed in an article in a medical journal that they have refused to co-operate with police in tracking down individuals who may have broken Sweden’s draconian public health and criminal HIV exposure and transmission laws. Following a public furore, they have now backtracked somewhat.

Articles from the Associated Press and The Local.se below.

Swedish health agency blasted for HIV stance

STOCKHOLM, Sweden (AP) — A Swedish health agency revealed in an article published Wednesday that it had refused to help police track down people who knowingly infect others with HIV.

The revelation triggered harsh criticism and the government agency, the Swedish Institute for Infectious Disease Control, agreed later in the day to resume helping police.

Officials for the agency were quoted in a medical newspaper as saying they had declined to cooperate with police because they disagreed with current legislation that criminalizes the willful spread of the AIDS virus.

The report in the Dagens Medicin weekly sparked anger among prosecutors, police and government officials, who accused the institute of placing itself above the law.

The institute backtracked and its officials also clarified their position, saying they had no problem with the law itself, but believed the penalties for spreading HIV were too severe. The willful transmission of the virus is punishable by a maximum 10 years in prison.

Jan Albert, an expert at the agency, said the threat of imprisonment harms prevention efforts because some people who suspect they may have the virus refrain from getting tested for fear of prosecution.

Albert said the agency had declined to help police on many occasions, “but we’ve come to the understanding that we’ll resume work with the police.”

‘Decriminalize spread of HIV’: agency
Published: 22 Oct 08 11:38 CET

A Swedish government agency is refusing to assist the police in an ongoing investigation concerning a person suspected of infecting a woman with HIV.

Under current legislation, a person with HIV risks spending one to ten years in jail on assault charges if he or she knowingly has unprotected sex with another person.

“The criminalization of HIV makes preventive work more difficult. Also, sentences are very tough,” Ragnar Norrby, director-general of the Swedish Institute for Infectious Disease Control (SMI), told newspaper Dagens Medicin.

In a reversal of its previous policy, the disease control institute has recently refused to cooperate with prosecutors who requested information on a person suspected of spreading HIV.

“It is now our view that spreading HIV should not be classified as an offence,” Jan Albert, SMI head physician and regional manager, told Dagens Medicin.

“It is at least as much the responsibility of the individual person to understand that unprotected sex involves risks,” he added.

According to Ragnar Norrby, the threat of prosecution leads many people infected with HIV to remain anonymous, making it more difficult to trace the spread of the virus.

SMI also notes that the development of antiretroviral drugs has meant that HIV can no longer be equated to a death sentence.

US: Four NYPD cops received pensions for alleged HIV infection on duty

Court papers released today reveal that experts at the New York Police Department’s medical and pension boards had previously decided that four NYPD cops were infected with HIV during the course of their duties.

The details were published in the New York Daily News.

According to the report, a female cop is in a Brooklyn court alleging unfair treatment by the same NYPD boards because they had previously disallowed her claim for a disability pension – they say she was not infected on duty but through sex with her ex-cop boyfriend.

He is one of four policeman that the boards ruled were infected in the line of duty.

Three of the four unidentified cops approved by the NYPD pension board were infected in the following ways, according to court papers:

– The first officer submitted to the pension board documents indicating that on June 1, 1989, he “reached into a perpetrator’s underwear to retrieve drugs.”

– The second cop was bitten on the hands by an HIV-positive perpetrator on May 7, 1993.

– The third sustained a cut on his left thumb from a razor blade while frisking a suspect.

No details are provided for how the fourth cop was allegedly infected, but he was retired Officer Jane Doe’s ex-boyfriend and the father of her daughter, the court papers state.

Since the first two dates were 1989 and 1993, I suspect that all of these alleged transmissions will have occurred prior to the implementation of Post Exposure Propylaxis (PEP) for occupational exposure, and before phylogenetic anaylsis was first used in order to attempt to show a linkage (but primarily to show that there is no linkage) between the alleged source and the newly infected individual.

One wonders how much fear and misinformation about HIV transmission through casual contact, biting, and sharp implements played a part in the boards allowing these earlier claims.

I have a strong suspicion that Office Doe will not win this case unless she can show evidence of a transmission risk that predates sex with her ex-boyfriend, and even then, the risk would have to have been mitigated with PEP. If she did not report the risk, and didn’t access PEP, it’s going to be an impossible case for her to win.

Four cops got HIV on job: ruling
BY JOHN MARZULLI , DAILY NEWS STAFF WRITER
Thursday, October 2nd 2008

Four NYPD cops have contracted the deadly HIV virus in the line of duty and were granted disability pensions, the Daily News has learned.

The never-before-disclosed details are contained in court papers filed in connection with a lawsuit by a retired female cop who contends that she was infected on the job and, as a result, wants a tax-free pension.

Referred to as Jane Doe in the complaint filed in Brooklyn Federal Court, she alleges unfair treatment by the NYPD medical and pension boards based on her gender, because only male cops have been cited for getting infected in the line of duty.

In a motion filed this week to dismiss the suit, city lawyers discussed the circumstances of a dozen cops who applied for line-of-duty disability pensions citing HIV between Nov. 30, 1999, the date the HIV statute went into effect, and August 2007.

The statute affords any police officer who may have been exposed to the bodily fluids of an infected person – and is subsequently diagnosed with HIV – the presumption that the disease was contracted in the performance of his official duties.

Three of the four unidentified cops approved by the NYPD pension board were infected in the following ways, according to court papers:

– The first officer submitted to the pension board documents indicating that on June 1, 1989, he “reached into a perpetrator’s underwear to retrieve drugs.”

– The second cop was bitten on the hands by an HIV-positive perpetrator on May 7, 1993.

– The third sustained a cut on his left thumb from a razor blade while frisking a suspect.

No details are provided for how the fourth cop was allegedly infected, but he was retired Officer Jane Doe’s ex-boyfriend and the father of her daughter, the court papers state.

Jane Doe, along with one other female officer – and the remaining six male cops – were granted ordinary disability pensions because they had not documented any possible exposures while on the job.

The city contends Jane Doe was infected through sex with her cop ex-boyfriend.

“The city rewrote the statute requiring her to ‘prove’ that she contracted the condition through police work,” said Jane Doe’s attorney, Eric Sanders.

UK: Developing guidance for HIV prosecutions: an example of harm reduction?

I’m including an excerpt here – the conclusion, actually – of an excellent article by Yusef Azad of the National AIDS Trust, in the July issue of the HIV/AIDS Policy and Law Review, published by the Canadian HIV/AIDS Legal Network, which describes the way the HIV sector managed to successfully intervene and manage the harm of criminal prosecutions in England & Wales for ‘reckless’ HIV transmission following an initial period of shock and panic.

By persuading the Crown Prosecution Service (CPS) to consult with the community on the production of a policy statement, as well as legal guidance for prosecutors and caseworkers in this area of law, he argues that this was pragmatic ‘harm reduction’. Certainly, the process has resulted in a much higher burden of proof of transmission and guilt, and there have been no successful prosecutions since an African migrant living in Bournemouth pleaded guilty in January 2007.

Since then, three cases have been dismissed by a judge in pretrial hearings, including two gay cases (in Preston in April 2007 and Cardiff in May 2008) and one heterosexual case (in Manchester in October 2007). These prosecutions all failed because the men had the same informed solicitor who successfully argued that the CPS failed to provide uneqivocal proof that the defendant, and only the defendant, could have, in fact, infected the complainant(s). Although the CPS guidance was only published in March 2008, even the existence of draft versions was enough to persuade the judge in the earlier two cases.

The full article, ‘Developing guidance for HIV prosecutions: an example of harm reduction?’, can be found here.

Judging success depends a lot on one’s initial expectations. The CPS were not in a position to end prosecutions for reckless transmission or disagree with the interpretation of the OAPA 1861 as set out by the Court of Appeal.

What they could do — and what they did do — was consider in greater depth, and on the basis of detailed evidence, what is required to prove responsibility for infection, knowledge, recklessness and appropriate use of safeguards. An informed understanding of these elements has, even in the context of current criminal law, resulted in fewer and fairer prosecutions.

As the CPS says in its Policy Statement, “[O]btaining sufficient evidence to prove the intentional or reckless sexual transmission of infection will be difficult … accordingly it is unlikely that there will be many prosecutions.” Therefore, we should consider this to be a successful example of policy intervention as harm reduction.

It was not without its risks. Success was due to a number of factors, not least of which was a CPS that was already committed to taking seriously the concerns and experiences of affected communities when considering prosecutions in socially sensitive areas of law.

Some jurisdictions will not have such an enlightened prosecution service, and so the HIV sector will need to start further back in terms of engaging with the authorities. But it may be possible, even given the different legal contexts of different countries, to use the CPS Guidance to help bring about improvements in practice elsewhere.

The process was helped immensely by the commitment from an extraordinarily wide range of partners within the HIV sector, encompassing NGOs, academics, clinicians, virologists and, above all, people living with HIV.

Although harm may be reduced, it has not been ended — prosecutions for reckless HIV transmission remain and will continue. There is an urgent need to restate the ethical and policy case against such prosecutions and to consider freshly how and when we might engage with political decisionmakers on this issue.

Canada: Another Ontario man accused of HIV exposure

A 24 year-old migrant has been arrested in a suburb of Toronto accused of aggravated sexual assault because he did not disclose his HIV status to a 21 year-old woman with whom he had consensual sex earlier in the year.

Although bloggers suggest the man is from Ethiopia, this is not clear in the Canadian reports, of which the one from CityNews is typical, which appear to be based on a police press release ‘fishing’ for more complainants.

Man Accused Of Knowingly Spreading HIV To Woman
Tuesday June 24, 2008
CityNews.ca Staff

A 24-year-old Brampton man is charged in a terrible case of aggravated sexual assault. But it’s what police say Yonatan Gezahegne Mekonnen didn’t tell his alleged 21-year-old victim that has cops worried.

Police contend the couple engaged in consensual sex back in January and February of this year, and that the accused was well aware that he was HIV positive at the time of the encounters – but never told the woman.

They accuse him of exposing her to the disease despite knowing he could easily pass it on to her – and by extension anyone else she may have been seeing. He was arrested on Thursday on two counts of aggravated sexual assault and made a court appearance last Friday.

But now cops are worried that other young women may have fallen under his spell and been exposed to the dangerous virus. They’re looking to speak to anyone who has had contact with Mekonnen in more than a casual way.

If you think you may have crossed his path, call the Peel Police Special Victims Unit at xxx-xxx-xxx or anonymously to Crime Stoppers at xxx-xxx-xxx.

UK: Long-awaited guidelines for prosecuting criminal HIV transmission published

It has taken a year longer than anticipated, but the Crown Prosecution Service for England & Wales has finally published their policy on prosecuting criminal HIV transmission.

Thankfully, the document bears almost no relation to the draft version originally published in September 2006, following consultation with HIV experts and advocates.

Naturally, then, a (right wing) think-tank quoted in the (right wing) Daily Mail believes the CPS is being too lenient.

Dr David Green, of the Civitas think-tank, warned that the new rules would encourage risky behaviour among those with HIV.

“Someone who has sex in those circumstances is subjecting the other person to a potentially deadly illness and to suffering over a long period of time,” he added.

“These rules are too lenient, and they will lead people to think they will not be prosecuted.”

On the other hand, my story for aidsmap.com, includes criticism from academic and practicing lawyers who think the guidance is wishy-washy (HIV is never mentioned by name), vague (condoms are never mentioned by name) and fails to elucidate any further on the real question we all really, really want to know: under what circumstances is someone likely to be prosecuted for reckless HIV transmission?

The Daily Mail story, and my aidsmap story, are below (for balance).

Interestingly, the Daily Mail changed its story (the original is now gone forever, sadly) within hours of its publications from being quite surprisingly balanced, to one that seems to wish the CPS guidelines had changed the law and made all unprotected sex by HIV-positive people a criminal act. I should also warn that if you click on the link to the Daily Mail website, you will see one of the most offensive (and laughably reactionary) comments I’ve ever read.

HIV carriers could escape jail for passing on infections to others
By STEVE DOUGHTY
Last updated at 10:47am on 15th March 2008

Anyone deliberately infecting a sexual partner with HIV through a one-off encounter should not be charged with a crime, prosecutors ruled yesterday.

A single sexual incident will not count as evidence that they have deliberately tried to infect their partner with the virus, the Crown Prosecution Service said.

Cases of intentional or reckless transmission of sexual infection will only be brought against those who have infected a series of partners, or have infected one partner during a period of regular risky sex.

The rules were set out to clarify the law on reckless infection and to guide prosecutors on how to deal with a crime that can lead to a life sentence for those convicted.

They also said that those accused of reckless HIV infection are themselves “victims”, because they suffer from a devastating condition.

Eleven defendants have been taken to court in England for transmission of the Aids virus.

Ten of the cases ended in a conviction. Defendants are charged with causing grievous bodily harm under the 1861 Offences Against the Person Act.

The first person to be jailed for infecting partners was given eight years in 2003 for infecting two women.

The sentence on Mohammed Dica, a married father-of-three, was cut to four and a half years after a re-trial found that he had deliberately infected only one woman.

The guidance, set out in a CPS policy document, said it would be necessary to prove a “sustained course of conduct” in order to find a defendant guilty – in other words a single sexual encounter does not amount to a crime.

“It will be highly unlikely that the prosecution will be able to demonstrate the required degree of recklessness in factual circumstances other than a sustained course of conduct during which the defendant ignores current scientific advice regarding the need for and the use of safeguards, thereby increasing the risk of infection to an unacceptable level,” it said.

The document also said: “We appreciate too that those who are defendants in these cases may be seen as victims themselves, as they also have the infection that they are alleged to have transmitted to another person.”

The statement set out a series of other reasons for prosecutors to be cautious before bringing charges.

Those newly told that they have an infection could be in a state of shock or might not have fully understood the diagnosis.

Prosecutors were told that someone who spread a sexual infection could also have a defence to a charge if the victim knew of their infected status.

The Director of Public Prosecutions, Sir Ken Macdonald, said: “Although these types of cases are rare, we are publishing this statement because we recognise the importance of consistent decision-making. We hope that it provides clarity.”

Dr David Green, of the Civitas think-tank, warned that the new rules would encourage risky behaviour among those with HIV.

“Someone who has sex in those circumstances is subjecting the other person to a potentially deadly illness and to suffering over a long period of time,” he added.

“These rules are too lenient, and they will lead people to think they will not be prosecuted.”

Guidelines on prosecuting criminal HIV transmission for England & Wales finally published
Edwin J. Bernard, Wednesday, March 19, 2008

Last Friday, the Crown Prosecution Service (CPS) for England and Wales published its long-awaited policy statement and legal guidance for prosecutors for cases involving the intentional or reckless sexual transmission of serious infection.

Although the policy statement (which can be read here) and legal guidance (which can be read here) have generally been welcomed by the two major HIV policy organisations, because they clarify some of the uncertainties that have surrounded prosecutions for reckless HIV transmission, some legal experts say the documents are vague – for example, neither HIV nor condoms are specifically mentioned – and leave important questions unanswered.

The CPS issued the first draft of its policy statement in September 2006. Following widespread criticism of both the policy and CPS’ lack of understanding regarding issues of harm, transmission and the relationship between scientific evidence and causation, the policy went back to the drawing board, missing its original February 2007 deadline.

“We have consulted widely on the development of this policy statement and have benefited substantially from listening to the views and concerns of others,” the latest CPS policy statement notes. “We have greatly appreciated their input; however, the content of this policy statement is the responsibility of the CPS alone.”

“We are publishing this statement because we recognise the importance of, and the need for, consistent decision-making,” it continues. “We also recognise the potential tension between public health and criminal justice considerations. However, the criminal law exists in part to protect those who are the victims of unlawful conduct by others, including through the unlawful transmission of sexual infection.”

Of note, the guidance does not specifically mention HIV, although all thirteen prosecutions that have taken place in England & Wales since 2003 have been for reckless HIV transmission.

What is clarified?
Two national HIV policy organisations, Terrence Higgins Trust (THT) and the National AIDS Trust (NAT) have already published documents providing initial, brief explanations of how the CPS policy may apply to reckless and intentional HIV transmission. (The THT document can be downloaded here, and the NAT document can be downloaded here.)

In short, the policy clarifies that:

  • Prosecutions are likely to talk place within relationships, and not as a result of one-off sexual encounters. “It will be highly unlikely that the prosecution will be able to demonstrate the required degree of recklessness in factual circumstances other than a sustained course of conduct during which the defendant ignores current scientific advice regarding the need for and the use of safeguards,” it says in the legal guidance for prosecutors.
  • Scientific evidence must be used to show that the defendant infected the complainant, but that this evidence alone cannot conclusively prove the responsibility of the defendant for the complainant’s infection. “The prosecutor will need to be satisfied that the complainant did not receive the infection from a third party or that the complainant did not infect the defendant,” it says in the legal guidance for prosecutors. “This means that the prosecutor will need to know about any possibility which is compatible with the scientific evidence that the complainant was infected by a third party. This means enquiries will have to be made about the relevant sexual behaviour and relevant sexual history of the complainant.
  • The defendant has to have known they were infected when transmission took place to be convicted, although there are some other, very limited circumstances (termed ‘wilful blindness’ e.g. where someone has refused to test despite explicit clinical advice to do so because of symptoms) that could result in prosecution and conviction.
  • In order to be convicted, the CPS must prove that that the defendant understood that they were infectious to other people as well as understood how the particular infection is transmitted.
  • Informed consent of the complainant to the risk of HIV infection is a defence against a charge of reckless HIV transmission. Disclosure is one way of informing the complainant, but the CPS will allow for other possible ways in which the complainant might have been ‘informed’ of the defendant’s HIV status – whether from a third party, or a hospital visit, or from obvious symptoms of infection.
  • Consistent condom use is a defence against a charge of reckless HIV transmission. However, the word ‘safeguards’ is used, rather than condoms, because it appears that the CPS is trying to cover a wide range of differently transmissible conditions.
  • Transmission must take place for a recklessness charge. There is no crime of ‘attempted reckless transmission’. THT says it has “seen a number of cases where local CPS officers have tried to bring non-existent charges, mainly of ‘attempted recklessness’, which is clearly nonsense. All such cases have foundered upon reaching court. It is very helpful that the CPS have stated clearly that this is not appropriate. However, it is possible to bring a charge of attempted intentional transmission, and there is no defence of consent available in charges of intent. To date, nobody has been successfully prosecuted for intentional transmission.”

Positive responses
The CPS policy document says in its conclusion that, “cases involving the intentional or reckless sexual transmission of infection may raise very difficult and highly sensitive issues. We recognise that obtaining sufficient evidence to prove the intentional or reckless sexual transmission of infection will be difficult and that accordingly it is unlikely that there will be many prosecutions.”

Both THT and NAT – who along with the African HIV Policy Network, the British HIV Association, Positively Women and the (now defunct) UKC – were consulted on the policy document, cautiously welcome its publication.

“For years now we have seen huge variations in how justice has been administered in this area of the law. This has caused problems for police, courts and people caught up in prosecutions.” said THT’s Head of Policy, Lisa Power. “The new CPS guidance will go a long way towards removing confusion, cutting the most inappropriate investigations short and clarifying where people with HIV and other STIs stand if they transmit them.”

NAT’s Chief Executive, Deborah Jack, notes that, “this new guidance from the CPS is helpful in clarifying the prosecution process. The level of evidence needed to prove intentional or reckless sexual transmission of infection has rightly been set very high and it is unlikely that there will be many prosecutions. However whilst prosecutions continue the National AIDS Trust will work to ensure the best possible advice is available to prosecutors, lawyers, police, support organisations, healthcare workers and people living with HIV.”

‘Disappointing’ and vague
However, academic lawyer, James Chalmers, Senior Lecturer at the University of Edinburgh School of Law, says that, “it’s disappointing that the CPS are too coy to use the word ‘condom’ in the document… In terms of intelligible public guidance it leaves a lot to be desired.”

He also criticises the document for leaving the most important question unanswered. “Aside from acknowledging the importance of scientific evidence, I don’t think the document takes us much further forward,” he tells aidsmap.com. When you strip out the guidance as to what the law is, you’re not left with very much of a guide as to when the law will be used. The difficult question was always ‘when will the CPS consider it in the public interest to prosecute?’ and that question is left unanswered.”

And defence lawyer, Khurram Arif, of London solicitors, Hodge Jones & Allen, who has successully defended three clients against reckless HIV transmission charges, notes that, although “it is encouraging to see that the guidelines actually specify that scientific and medical evidence should be gathered as part of the investigation,
I think the CPS will always get stuck on the point of causation.”

In addition, both THT and NAT admit they are disappointed with various parts of the guidance. “The CPS are less clear about condom breakage during sex. THT believes it should be an adequate defence, if a condom is found to have broken during sex and HIV transmission occurs as a result, for the defendant to have promptly advised their partner to get PEP. We will be pressing for further clarity on this.”

Yusef Azad, NAT’s Director of Policy and Campaigns, also tells aidsmap that he is disappointed that “there is no definition of what constitutes reckless behaviour in relation to HIV transmission. In some ways this could be a good thing [because] at least we don’t have an incorrect or unhelpful definition. But the CPS leave it instead to individual clinicians to advise in each case with a worrying possibility of inconsistent approaches and clinicians simply rehearsing their own ethical opinions rather than providing obejective expert advice.”

Finally, it should be noted that the CPS only become involved once a case has been investigated by the police, and that so far there is no guidance for the police in this area. Khurram Arif points out that in his experience, “I have not come across many [police] officers who are familiar with any CPS guidelines.”

However, both NAT and THT plan to work with the Association of Chief Police Officers to help create a more unified – and better-understood – criminal justice system policy now that the CPS guidance has been published.

Is having HIV ‘like a death sentence’?

This is an amended version of a blog entry originally entitled ‘Canada: Expert doctor defends his statements on HIV life expectancy’. I was forced to remove the original posting to which this entry refers due to a threat of legal action.

I have now included the news article from the original posting (about the Owen Antoine case in St. Thomas, Ontario, Canada) in this fuller entry on Mr Antoine’s trial.

The offending post dealt with the reported statements of Dr Anurag Markanday, the expert witness for the Crown in an article on the case from the St Thomas Times Journal, with which I strongly disagree.

Dr Anurag Markanday told the jury there’s no cure for HIV, but drugs do slow the process of the disease. “It’s like a death sentence … while we can keep the virus suppressed, we are going to run out of options.” Once diagnosed, the average lifespan of a person is eight to 10 years, he testified.

For someone with access to HIV treatment – as is the case in Canada – HIV is now a chronic, manageable condition.

In subsequent email correspondence, Dr Markanday again asserted his opinion that, “in the absence of a cure, I would still label it as “death sentence” for someone not on therapy (when clinically indicted) [sic] or in heavily treatment experienced patients with multiple drug mutations and limited options.”

Of course if someone is not on treatment when they should be (in most cases when they have a CD4 count below 350 cells/mm3) then they are more likely to get sick and die. But that is focusing on the exception and not the rule.

And yes, if someone was diagnosed in the 80s or 90s and burned through every class of drug they may well have multiple drug mutations, but there are now many options for what used to be known as ‘salvage therapy’, including the amazing new drugs and new drug classes that Dr Markanday says he is working with.

Consequently, I really must question his focus on worse-case scenarios and his use of the emotive phrase, ‘death sentence’.

Dr Markanday then points out “the effects from other co-morbidities such as hepatitis co-infection with early cirrhosis and mortality, hyperlipidemia/CV events have also increased. (In terms of number of years one could safely say at least ten years since the diagnosis).”

Again, I wonder why Dr Markanday focuses on hepatitis coinfection – which certainly does increase the likelihood of illness and death in someone with HIV? I have no idea whether the complainant was already infected with viral hepatitis before she was allegedly infected with HIV, but if this is not the case, how is it relevant?

As for lipid increase and cardiovascular events, the latest word from the D:A:D study, which looks at these events, is that “there does not seem to be an epidemic on the horizon – simply a risk that needs to be managed.”

So, yes, remaining on suppressive anti-HIV treatment, giving up smoking, exercising and eating well, and taking lipid-lowering drugs if indicated, may be necessary to reduce the risk of an HIV-positive person succumbing to a heart attack, but the increased risk of treated HIV infection itself is not considered something that dramatically alters life-expectancy.

Why could Dr Markanday not have said that with treatment, someone diagnosed with HIV infection today is expected to have, more or less, a normal lifespan? That is what Italy’s Dr Stefano Vella – one of the most respected HIV clinicians in the world – said at the 2006 International AIDS Conference in Toronto, and many expert HIV clinicians agree.

Solid data backs up Dr Vella’s assertion. In 2006, researchers from the United States calculated that someone who was provided with anti-HIV drug combinations according to 2004’s US treatment guidelines would benefit from these treatments for between 21 and 25 years before they finally stopped working. Their estimate included four separate attempts at suppressing HIV to ‘undetectable’ levels, from first-line therapy to ‘salvage’ therapy. (Schackman BR et al. The lifetime cost of current HIV care in the United States. Medical Care 44(11); 990=997, 2006.)

Last year, a large Danish study concluded that a 25 year-old diagnosed with HIV and treated with the anti-HIV drugs available then could expect to live well into their mid-sixties . The Danish study found that the average 25 year-old who remained HIV-negative could expect to live until they were in their mid-seventies. Consequently, successfully treated HIV infection appears to reduce life-expectancy by about ten years. (Lohse N et al. Survival of persons with and without HIV infection in Denmark, 1995-2005. Annals of Internal Medicine:146: 87-95, 2007.)

However, anti-HIV treatments – and knowledge about how to best use them – continue to advance at a rapid pace. As time goes on, experts believe that is very likely that other ways of treating HIV will be discovered that will mean that successful outcomes from the use of anti-HIV treatment could last even longer.

Certainly, HIV can lead to some serious illnesses if untreated. In 2006, around 100 out of the 400 deaths reported in HIV-positive people in the UK were due to their being diagnosed with HIV too late for effective anti-HIV treatment, highlighting the importance of HIV testing in order to make the most of the latest advances in anti-HIV therapy.

Another third of these 400 deaths were not considered related to HIV at all. Consequently, most HIV-related deaths are preventable if HIV is diagnosed early enough and treated succesfully. (Johnson M et al. BHIVA Mortality Audit. BHIVA Autumn Conference, London, 2006.)

Ultimately, anti-HIV treatments have greatly improved the life expectancy of people with HIV, as long as they:

• Know their HIV status early enough to get timely and effective treatment
• Have access to good quality HIV treatment and care
• And take anti-HIV drugs regularly and on time.

Finally, as for life expectancy for someone not on treatment, there are new data from UNAIDS and WHO which finds that, as a result of a better understanding of the natural history of untreated HIV infection, the average number of years that people living with HIV are estimated to survive without treatment has been increased from nine to eleven years.

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

HIV crimes – lawyers’ views

HIV crimes – lawyers’ views

BBC News – September 19, 2006
Michelle Roberts, Health reporter


Two lawyers who have defended men accused of recklessly transmitting HIV share their views and experience regarding HIV prosecutions.

Kharrim Arif, a solicitor in London, was the defending lawyer for the first British man acquitted of ‘recklessly’ transmitting HIV to his gay lover.

Donald Findlay QC defended a Scottish man accused of knowingly infecting his girlfriend with HIV.

Expressed consent

Mr Arif said: “Someone who is HIV positive must inform their partner of their status before having intercourse. There must be expressed consent.

“Most of the cases that I have dealt with have involved homosexual men and there is always a question of implied informed consent and whether that would amount to a defence.

“For example, the gay scene is known as promiscuous and there is a risk of transmission of HIV from one party to another. The fact that the parties do not discuss this before intercourse and do not use protection, does that mean that they consent to the risk?

“That is the trouble that we have had in these cases. But the law is very clear that implied informed consent is not a defence. You have to have expressed consent, be it in writing or verbally.

“The charges are always for ‘reckless’ transmission – the person thinks of the risk but none the less carries on.

“The only defence is if you obtain expressed consent.

“And even that may not be enough in the court’s view because they might judge that a person could never, in their right mind, have consented to such a risk.

Scientific ‘proof’

“From a defence perspective, we go hard and fast at the causation side of things. It is always the scientific evidence that will make or break the case.

“There have been discussions whether there should be a separate offence for passing HIV on. The current law is probably sufficient, classing it as a GBH.

“But whether you should prosecute is questionable. My client would have contracted HIV from someone and he did not consent to it. But he hasn’t complained. You could go back and keep prosecuting. It’s an endless cycle.

“I don’t know whether because of this acquittal case the prosecution will stop and think whether they can prove causation.”

Scottish law

Donald Findlay said: “In Scotland, the charge is culpable and reckless conduct.

“If you know that you have HIV, you know that it can be transmitted through sexual intercourse and that it is obviously damaging to the health of the person who catches it and you have unprotected sex, that alone is reckless, which would make it culpable.

“Whether the partner in the sexual act knows and consents is a moot point because you cannot, in Scottish law, consent to an assault.

“Intent can be inferred from the nature of the conduct.

“The law would assume, unless you could somehow prove to the contrary, that you knew it was dangerous to have sexual intercourse because you might transmit the infection.

“If you were HIV positive and told your partner and used a condom but it split, that I do not think would amount to a crime.

“If you did not tell your partner but used a condom – that is a grey area.

“If you have not disclosed it you have a potential problem because you are depriving the other person of assessing the risks that they are taking.

“If there are two people and they know that one of them has HIV and they go out and get blind stinking drunk and end up in bed and the infection is passed, whether anybody would be prosecuted in that situation is somewhat dubious.

“The risk they could be prosecuted is certainly there.

“If you are HIV positive, have told your partner and they consent to unprotected sex, I still think you have committed a crime under Scottish law. I could not rule out the possibility of a prosecution.

“In Scotland, if you have people into sadomasochism, even if though the person consents to being hit, it would still be an assault by the person doing it.”