Kyle Kirkup explores Canadian police and media practices that stigmatize people living with HIV (PLWH) and facilitate the public’s belief that HIV and PLWH are dangerous. In support, Kirkup analyzes the 2010 case of an Ottawa man living with HIV arrested for sexual assault, which involved the public release of the man’s identity, photo, sexual health, and sexual encounters in an article headlined “Have you had sex with this man?”
The ensuing discourse of gay male sexuality using tropes from the HIV epidemic in the 80s illustrates, Kirkup argues, how a lack of police and media regulation and education continue to produce a punitive and isolating environment for PLWH.
Kirkup proposes several strategies for reform, including expanding publication bans and non-disclosure legislation, changing police ethics to keep private information out of the hands of journalists, educating journalists and public officials about the medial realities of HIV transmission risk and medical prognosis, and abandoning the “aggravated sexual assault” charge based on HIV status.
Australia: Academic article explores the prevention impact of treatment on criminal 'exposure' laws and prosecutions
Evidence that treating people with HIV early in infection prevents transmission to sexual partners has reframed HIV prevention paradigms. The resulting emphasis on HIV testing as part of prevention strategies has rekindled the debate as to whether laws that criminalise HIV transmission are counterproductive to the human rights-based public health response. It also raises normative questions about what constitutes ‘safe(r) sex’ if a person with HIV has undetectable viral load, which has significant implications for sexual practice and health promotion. This paper discusses a recent high-profile Australian case where HIV transmission or exposure has been prosecuted, and considers how the interpretation of law in these instances impacts on HIV prevention paradigms. In addition, we consider the implications of an evolving medical understanding of HIV transmission, and particularly the ability to determine infectiousness through viral load tests, for laws that relate to HIV exposure (as distinct from transmission) offences. We conclude that defensible laws must relate to appreciable risk. Given the evidence that the transmissibility of HIV is reduced to negligible level where viral load is suppressed, this needs to be recognised in the framing, implementation and enforcement of the law. In addition, normative concepts of ‘safe(r) sex’ need to be expanded to include sex that is ‘protected’ by means of the positive person being virally suppressed. In jurisdictions where use of a condom has previously mitigated the duty of the person with HIV to disclose to a partner, this might logically also apply to sex that is ‘protected’ by undetectable viral load.
Is Louisiana's 'AIDS exposure' statute outdated? Advocates say it needs an update
Richard Covington of Baton Rouge was accused earlier this year of breaking into the house of someone who apparently owed him money and then fighting the resident. During the scuffle, Covington allegedly bit the man’s arm.
US : Mississippi lawmakers pass law mandating HIV testing for anyone arrested for sexual assault
Updated by Paul Boger at Law enforcement officers will soon be able to do mandatory AIDS testing on those arrested for sexual assault. House Bill 2-57 was passed by lawmakers with nearly unanimous support in Mississippi’s House and Senate. The measure gives law enforcement the right to test individuals arrested for sexually assaulting a minor for diseases such as HIV and AIDS.
Under current Mississippi law, testing can only be conducted after a person has been convicted of a crime. Proponents say the new law will help young victims know if they’ve been exposed to a terrible disease. Republican Representative Mark Formby of Picayune helped draft the law. He says the test would become part of the intake process.
“If you’re arrested and you get photographed; it is not any additional evasive behavior,” says Formby. “We are documenting that you were arrested, which means that there was some degree of evidence that implicated you in a crime.”
Despite the measure’s popularity among lawmakers, some groups like the ACLU of Mississippi believe the law is a slippery slope.
Keia Johnson is the organization’s legislative strategist. She says the law amounts to an unreasonable search and seizure.
“We believe that when you mandate that DNA is to be collected for HIV testing purposes or anything like that upon arrest, that you are violating the due process of law,” Johnson says.
According to Representative Formby, both the suspect and the victim will be given the results of the test 24 hours after it was taken. At that time, all other DNA samples would be destroyed.
Germany: Aachen Court re-evaluates key ‘mens rea’ requirement in German law, rules HIV transmission without disclosure is negligent injury, not intentional harm
Last week, for the first time a German court ruled that HIV transmission without prior disclosure was negligent injury, rather than intentional harm.
The District Court of Aachen sentenced a 43 year-old man to one year and nine months on probation for having condomless sex with his former female partner without disclosing his HIV-positive status. The woman is now also HIV-positive. The maximum sentence for negligent bodily injury is three years in prison and a fine.
With this judgment the Court has created legal history – the first ruling since 1988 to change the way HIV non-disclosure cases are considered by German courts. Until now, the Federal Court, as well as lower courts, had always considered that HIV non-disclosure prior to sex without a condom meant that the defendant “considered acceptable” that their partner would acquire HIV. This concept, of dolus eventualis, is much closer to the common law definition of ‘recklessness’ than to malicious intent.
Leading HIV and human rights lawyer Jacob Hösl, who attended the hearing in an advisory capacity, told Deutsche AIDS-Hilfe: “The Federal Court has always said that the examination of pre-meditation requires a case-specific overall examination, which can vary greatly depending on the individual circumstances. The lower courts, however, have always assumed intent by default. For the first time this court sees it differently. ”
Hösl praised the fact that the court studied intensively the medical facts and personal circumstances of the accused. “The man did not want his partner infected – for him she was the love of his life,” he noted.
The presiding judge, Hans-Günter Goergen, began his oral verdict, stating: “We have learned a lot about HIV in this trial.” According to press reports, he noted that the defendant had concealed his HIV-positive status because he was afraid his partner would leave him, but that he had no desire for her to become HIV-positive.
The judge also accepted that the defendant had tried to protect his partner (by using condoms most of the time, and withdrawing before ejaculating), but failed due to the circumstances (she started taking contraceptive pills and desired condomless sex) and because of his fear of losing his partner. He noted that the defendant’s former wife had divorced him in 2007 after he had tested HIV-positive. Accordingly, the judge saw no evidence that the defendant acted with intent.
The Court also found the defendant not guilty with respect to three other charges relating to HIV non-disclosure and potential HIV exposure involving two women when the defendant’s viral load was undetectable.
A medical expert told the Court that during the relationship with the complainant that is now HIV-positive, the risk of transmission was low, as he had a low (but not undetectable) viral load. Dr. Heribert Knechten, a witness for the defence, who was also the defendant’s doctor, noted that in 2014, before commencing treatment, his patient’s viral load was stable at 85,000 copies per milliliter, which translated into the risk of HIV transmission during vaginal intercourse to be between 0.05 to 0.15 percent. He also testified that after the defendant’s viral load reached undetectable at the end of 2014 that he was very unlikely to be infectious.
Manuel Izdebski, Deutsche AIDS-Hilfe board member said in a press release:
“This verdict is a step of great value: the first time that a court recognizes that you cannot automatically assume intent in HIV transmission cases; it is almost always due to fear – as it was in this case – that people do not disclose. Accordingly, this must be taken into account. Criminal law is not an appropriate way to measure this. The decision of the District Court in Aachen is a pioneering step towards a legal system that no longer penalises HIV transmission as a criminal offence.”
The written judgement is expected soon. However, today, the prosecution has appealed the ruling, so this judgement may not be final.
US: Court of Appeals for the Armed Forces acknowledges per-act sexual HIV exposure risk, limiting future military prosecutions for HIV non-disclosure as aggravated assault
Gutierrez’s court-martial on the aggravated assault charge required prosecutors to prove several elements, including that the sexual activity – the “assault” – was deemed likely to produce death or grievous bodily harm.
The five judge CAAF panel’s unanimous ruling, published on Monday (and available in full below) examined the per-act risk of oral and vaginal sex with and without a condom (although there appears to be no discussion of viral load as a key modifier of these risks).
“The question in this case is not whether HIV, if contracted, is likely to inflict grievous bodily harm,” wrote Chief Judge James E. Baker. “The critical question . . . is whether exposure to the risk of HIV transmission is ‘likely’ to produce death or grievous bodily harm.”
In overturning the conviction, the court cited testimony from the prosecution’s medical expert, Dr. Donna Sweet, that in oral sex with or without a condom, the risk of HIV transmission is “almost zero” and HIV transmission through vaginal sex with a condom is only “remotely possible.”
She estimated that an HIV-positive man engaging in condomless vaginal sex with an HIV-negative woman would result in a 1-in-500 risk of the woman acquiring HIV, but deemed this to be at the “high end” of probabilities.
CAAF concluded that the prosecution had failed to prove that any of the acts were likely to transmit HIV.
“In law, as in plain English, an event is not likely to occur when there is a 1-in-500 chance of occurrence,” Baker wrote.
Although the decision – overturning a 25-year precedent that had allowed military personnel to be convicted of aggravated assault based solely on a positive HIV antibody test – was welcomed by advocates, another part of the ruling potentially opens the door to the use of a lesser charge – assault consummated by a battery – for future allegations of HIV non-disclosure.
An article in The Tribune quotes Catherine Hanssens, executive director of the Center for HIV Law and Policy, noting that at least part of the decision was “an important sign of progress” that should be “read and taken seriously” by civilian as well as military courts. But…
In a move called “curious” by Hanssens and “astonishing” by military law blogger Zachary D. Spilman, author of Blog-CAAFlog, the court cited only a Canadian court decision for support of the potentially far-reaching conclusion that lack of knowledge equals lack of true consent.
In fact, the Court cited the notorious Supreme Court of Canada’s 1998 Cuerrier decision (which led to HIV non-disclosure in Canada problematically being framed as a serious sexual assault).
This, notes Spilman, could be extremely problematic in future military cases. His opinion analysis concludes:
I think this an incredibly odd ending to a very interesting opinion. CAAF reaches to foreign law to invalidate the consent of Appellant’s sexual partners, while simultaneously rejecting the notion that it should distort the law to “fit a round peg of conduct into a square hole of a punitive statutory provision.” Ultimately, the court seems to have merely traded one distortion of the law for another.
It remains to be seen what impact this will have on future US civilian or military cases.
In December 2013, the US Senate passed the National Defense Authorization Act (fiscal year 2014) which aimed to reform the military’s HIV-related policies, including prosecutions for HIV non-disclosure, exposure and transmission. Although work is taking place behind the scenes, it’s unclear when this will have an impact on pending or future prosecutions or policy.
In the meantime, Gutierrez is currently serving eight years in military prison. His case has been sent back to the Judge Advocate General of the Air Force for sentencing review.
The next HIV-related case likely to come before CAAF will be that of Lt Col. Ken Pinkela whose recent change.org campaign to review his unjust court-martial has over 73,000 signatures.
Since he was (falsely) accused of condomless anal intercourse when his viral load was extremely low – neither of which were discussed in this ruling – it remains unclear how this ruling will affect his case.
The Court will hear arguments on behalf of two applicants – Pitty Mpofu and Samukelisiwe Mlilo – both of whom were unfairly convicted of “deliberate transmission of HIV” in 2012, and who are now represented by Zimbabwe Lawyers for Human Rights (ZHLR).
“The provision is too wide, arbitrary and therefore violative of the protection of the law guarantee. It is submitted that the legislature has created an offence which is as scary as the evil that it seeks to redress.”Applicants head of arguments (1.1)
Law on trial
Although the ‘crime’ in Section 79 is called “deliberate transmission of HIV”, a wide range of variables are possible that involve neither being deliberate nor actually transmitting HIV.
It is a crime for anyone who realises “that there is a real risk or possibility” that he or she might have HIV to do “anything” that the person knows will involve “a real risk or possibility of infecting another person with HIV.”
This, argues the applicants, is overly broad and unconstitutionally vague.
”Criminal and/or public health should not include specific offences against the deliberate and intentional transmission of HIV but rather should apply general criminal offences to these exceptional cases. Such application should ensure that the elements of foreseeability, intent, causality and consent are clearly and legally established to support a guilty verdict and/or harsher penalties.”
It is eminently clear that Section 79 does not ensure that “elements of foreseeability, intent [or] causality” are adequately provided for, although there is a defence of informed consent via disclosure. (It is not clear, however, exactly what needs to be disclosed, given that it is possible to be prosecuted for anything that might be a risk even if you haven’t been tested).
Although the Zimbabwe law predates other African laws based on the flawed N’Djamena model law, funded and disseminated with US international aid money, it contains many of the same problems. (Zimbabwe passed the first version of Section 79 in 2001 and updated it in 2004 to include people who suspected they were HIV-positive, but were not yet diagnosed.)
Notably, it recommends defining ‘deliberate transmission of HIV’ as “transmission of HIV that occurs through an act done with the deliberate purpose of transmitting HIV”.
It further recommends that no criminal liability should be imposed upon:
an act that poses no significant risk of HIV infection.**
a person living with HIV who was unaware of his or her HIV infection at the time of the alleged offence.
a person living with HIV who lacked understanding of how HIV is transmitted at the time of the alleged offence.
a person living with HIV who practised safer sex, including using a condom.**
a person living with HIV who disclosed his or her HIV-positive status to the sexual partner or other person before any act posing a significant risk of transmission.
a situation in which the sexual partner or other person was in some other way aware of the person’s HIV-positive status.
a person living with HIV who did not disclose his or her HIV status because of a well-founded fear of serious harm by the other person.
the possibility of transmission of HIV from a woman to her child before or during the birth of the child, or through breastfeeding of an infant or child.
**The issues of significant risk and safer sex (along with the difficulties of proving timing and direction of transmission) are further expounded upon in UNAIDS expanded and updated 2013 guidance.
However, Zimbabwe could also decide to do away with Section 79 altogether, and implement a new law based on a model law developed for the Southern African Development Community (SADC; www.sadc.int), which comprises Angola, Botswana, Democratic Republic of the Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.
This model law, which was unanimously adopted by the SADC Parliamentary Forum in 2008, integrates the protection of human rights as a key element of an effective response to HIV and has no specific provisions allowing for the criminalisation of potential or actual HIV exposure or transmission.
Today, they will launch the documentary in Harare under the banner; ‘HIV on Trial – a threat to women’s health’.
Ms Mlilo was found guilty of ‘deliberately’ infecting her husband with HIV and faces up to 20 years in jail despite there being no proof that she had infected her husband. She claims she had disclosed her status to him following her diagnosis during pregnancy, and that her husband only made the complaint in revenge for her own complaint of gender-based violence following the breakdown of their marriage.
“At this point we do not know who infected who,” ZLHR’s Tinashe Mundawarara told Voice of America News in August 2012. “This is an example of the violation of women’s rights. Women are likely to know of their status first. Mlilo might have been infected by her husband, no one knows, and got charged and convicted.”
The other applicant, Pitty Mpofu, was also found guilty of ‘deliberate’ transmission of HIV a month after Ms Mlilo.
It was alleged that he infected his wife sometime between October 2009 and June 2011 , although he wasn’t diagnosed until “sometime in 2010.” No proof regarding timing nor direction of transmission was provided during the trial.
Highest number of reported criminal prosecutions in Africa
The first known successful prosecution in Zimbabwe took place in 2008, although it is believed that more than 20 prosecutions had previously been attempted.
In this case, a 26-year-old woman who had mutually consensual sex with a male partner pleaded guilty to non-disclosure prior to unprotected sex. She was given a five-year suspended sentence, primarily because the partner – who had tried to withdraw the charges – did not test HIV-positive.
Spitters and biters beware. From January 1 anyone caught biting or spitting at a police officer in Western Australia will be ordered to undergo blood tests for infectious diseases.
The new law, coming in at midnight on the busiest night of the year, has been introduced to streamline the testing process for officers who are injured by a potentially infected offender.
WA Police Minister Liza Harvey said officers’ concerns would be eased by immediately testing the blood of an attacker for infectious diseases.
“Previously a police officer has had an agonising three to six-month wait before they get results from their own blood testing to confirm if they have contracted a disease,” she said.
“So for those people who do decide to get on the wrong side of police and decide to bite them or spit at them we will be compelling those offenders to provide a blood sample.
“They [police] will have an idea of whether they’ll have contracted HIV or hep C or hep B and we can give the police officers peace of mind early in the piece as to whether they’ve been exposed to those diseases. ”
Ms Harvey said 147 police in 2013 were exposed to bodily fluids in a way that they could contract an infectious disease.
“This legislation will allow for the taking of blood samples from the offender which helps in diagnosis, clinical management and treatment of the exposed police officer,” she said.
She said the testing would only take place if transfer of an infectious disease, such as bodily fluid through broken skin, was possible.
“We are deeply committed to protecting our officers on the frontline, who are committed to protecting us,” Mrs Harvey said.
Under the new law, approval for the blood test must come from an inspector or higher rank and a court order is needed if the offender is a child or is impaired.
Test will check for HIV, hepatitis B and C.
Canada: Judge rules that police violated constitutional rights by disclosing man's HIV status in press release
An Oshawa judge’s decision to sentence a man to house arrest for Internet child luring rather than jail because police publicly revealed his HIV status is the latest example of judges finding creative ways to manoeuvre around mandatory minimum sentences.
Former youth pastor Kris Gowdy was given two years less one day house arrest and three years’ probation last week by Ontario Court Justice Michael Block rather than the mandatory minimum sentence of one year in jail. Justice Block found Durham Regional Police violated Mr. Gowdy’s constitutional rights when they indicated in a news release shortly after his arrest in August 2012 that he was HIV-positive.
The story of the “HIV-positive ex-youth pastor” made headlines around the world, causing significant emotional trauma to Mr. Gowdy, Justice Block wrote in his decision.
“Mr. Gowdy had a right to make his own choices concerning the disclosure of his HIV status,” he wrote. “No doubt he would have chosen his own method and different timing if he ever determined to inform those near to him. Absent evidence of serious risk of transmission and rigorous compliance with statute, no one had the authority to make that decision for him.”
Germany: Female sex worker with HIV found guilty again of perceived ‘HIV exposure’ locked up for at least nine years under ‘preventive detention’ law [Updated]
The District Court of Oldenburg has sent a 30-year-old female sex worker to prison for at least nine years under Germany’s ‘preventive detention’ law, because she has shown a pattern of not disclosing to clients that she was living with HIV before they chose to have condomless sex with her.
The judge sentenced the woman from the north German port town and naval base of Wilhelmshaven to four years after finding her guilty of two counts of attempted aggravated assault (for perceived HIV exposure), with at least five years further ‘preventive detention’.
The woman had previously been found guilty of of attempted aggravated assault (for perceived HIV exposure) and sentenced to two and a half years in prison by the District Court in Wilhelmshaven in early 2010. This was increased to three and a half years by the Oldenburg District Court in late 2010.
According to the prosecution, this latest case involved three different male clients between August and November 2013.
This trial took place in private without any members of the media or public able to attend, apparently to protect the privacy of both the accused and her clients.
A spokesperson for the Oldenburg Regional Court told NDR.de that ‘preventive detention’ can be imposed for offenses “directed against life and limb. Also, for repeat offenders, the courts may order a preventive detention. In addition, preventive detention serves to protect the public from dangerous offenders.”
The Court believed they were justified under all three criteria.
The woman has been in custody since March 2014. After serving four years in prison for the ‘attempted aggravated assault’ charges (for perceived HIV exposure), she will remain in custody for a minimum of five more years. She will then be examined by an expert who will decide whether or not she can be released.
Deutsche AIDS Hilfe has reacted to the ruling with a strongly worded press release, confirming that this is the first German HIV-related case to involve preventive detention, and stating that anyone who has condomless sex – especially with a sex worker – needs to be aware of the risk of acquiring HIV since “HIV cannot be locked up”.
Germany’s top HIV legal expert, Jacob Hösl, is now supporting the woman, and hopes to take her case to the Supreme Court.
The press release (in German) can be read here. An approximate English translation is below.
Deutsche AIDS Hilfe: HIV cannot be locked away!
The Oldenburg District Court has imposed a prison sentence and preventive detention against HIV-positive woman – a fatal signal for HIV prevention.
The District Court of Oldenburg has sentenced a 30-year-old HIV-positive woman from Wilhelmshaven to four years in prison and five years of preventive detention because the sex worker had unprotected sex with multiple clients. No HIV transmission is alleged.
Manuel Izdebski, from the Board of Deutsche AIDS-Hilfe (DAH) notes:
“This ruling sends a completely wrong signal and harms HIV prevention. That the criminal law only places the responsibility for HIV prevention on people with HIV remains a scandal. Imprisonment and preventive detention create a dangerous false sense of security. Everyone needs to know that with unprotected sex there is a risk of HIV infection received, and must protect themselves. HIV cannot be locked away!”
To the knowledge of Deutsche AIDS-Hilfe, this is the nation’s first case of this kind, in which preventive detention was ordered. The female accused had already been convicted several times for similar “offenses”. To our knowledge no actual HIV transmission occurred in any of the cases.
In the current case, the court informed us on request that the woman had interrupted her HIV treatment during the relevant time and so HIV transmission was therefore possible.
In an earlier judgment, the Oldenburg District Court noted that the woman had a “personality disorder” and suffered from “multi-year alcohol abuse”. And before the sexual encounters she is said to have consumed alcohol to a considerable extent.
“That makes it all the clearer that you have to protect youself against HIV and not be allowed to rely on your partner,” says DAH Board member Manuel Izdebski. “Maybe they are just not in a position to assume this responsibility.”
The criminalisation of (potential) HIV transmission is considered by Deutsche AIDS-Hilfe to be counterproductive in every way. Criminal liability is also made on false premises. Manuel Izdebski notes:
“The victim-offender paradigm of criminal law is totally inappropriate for consensual sex without a condom, because it ‘takes two to tango’. The condition [that might support a prosecution] that the person with HIV wants to harm their partner has not been met here. The reasons for the abandonment of protection are much more complex. For example, it may be unspeakably difficult to address their own HIV infection, because it is associated with a great deal stigma and the fear of rejection”.
You can select your preferred language from the 'Select Language' menu at the top of the page.
Continue
We use cookies to ensure that we give you the best experience on our website. By continuing to use our site, you are agreeing to our use of cookies. You can change your cookie settings at any time if you want. Find out more in our Privacy & Cookie Policy.