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.”