UK: Law Commission considers HIV criminalisation in great depth, but recommends no change for HIV/STI prosecutions in England & Wales, pending a wider review

Following a scoping consultation which ran from autumn 2014 to spring 2015, the Law Commission (of England and Wales) has now published its report containing their final recommendations to the UK Government.

It recommends the adoption of a modified version of a 1998 draft Bill to replace the outdated Offences Against the Person Act 1861.

However, whereas the 1998 Bill only criminalised intentional disease transmission, their recommendation is to keep the existing law relating to HIV and other serious diseases ((based on Dica and Konzani and clarified through prosecutorial policy and guidelines) which criminalises reckless as well as intentional disease transmission, pending a wider review.

Both in the scoping consultation paper and in this report, we have considered the criminalisation of disease transmission at great length. Many consultees supported fundamental reform of the law in this area. However, we conclude that the issues were more complex than time or space allowed without delaying the main aim of reforming the law of offences against the person. For this reason, we suggest modifications to the draft Bill to preserve the present position pending a wider review involving more input from healthcare professionals and bodies.

The full report, (chapter six: ‘transmission of disease’ is excerpted in full below), includes a detailed discussion of their proposals and the responses of 35 concerned stakeholders (most of them experts in law, public health and human rights. The HIV Justice Network was one of them, and our opinions are quoted throughout.)

The entire report is of interest not just to those working on this issue in England & Wales, but globally.  It rehearses, in great detail, nearly all of the arguments for and against HIV (and other STI) prosecutions, and finds that “there is a strong body of opinion, especially in the medical profession and groups concerned with HIV and sexually transmissible infections, that the transmission of these diseases should never be criminal unless done intentionally.”

The report helpfully summarises the five main arguments against overly broad HIV criminalisation:

(1)  an offence of reckless transmission encourages people to choose not to be tested, so as not to have the awareness of risk that might constitute recklessness;

(2)  it discourages openness with (and by) medical professionals, because they may have to give evidence against their patients;

(3)  it encourages people to think that disclosure of HIV status is always a duty, and that if a potential partner has not mentioned his or her status then he or she is not infected;

(4)  because of the difficulty of proving transmission, the existence of the offence leads to very wide-ranging and intrusive investigations affecting a great many people, out of all proportion to the small number who will be found deserving of prosecution; and

(5)  the whole topic of HIV/AIDS is affected by an atmosphere of fear (often irrationally so), and there is still an undesirable stigma against people.

Nevertheless, although the report states that “it would be preferable to revert to the law as it stood in 1998” when prosecutions were not possible and to use the draft 1998 Bill as it stands (which would only criminalise the intentional transmisison of disease), it comes to a more conservative conclusion.

The discussion of this issue has almost exclusively concerned the transmission of disease by consensual sexual intercourse, and the transmission of HIV in particular. (Also, most of the evidence for the harmful effects of criminalisation is drawn from countries where there are specific offences concerned with HIV and STIs, and may not be relevant to the use of general offences of causing injury.) The same reasoning may well not apply to other diseases and other means of transmitting them, but the draft Bill excludes disease as a whole.

For these reasons, on the evidence we have we do not feel justified in recommending a change to the position in existing law, in which the reckless transmission of disease is in principle included in an offence of causing harm. If there is to be a change, this should follow a wider review which compares the position in different countries and gives full consideration to the transmission of diseases other than by sexual means.

Of note, and of global relevance, following a great deal of discussion (and a broad range of consultation responses) regarding whether not to create an HIV/STI-specific law and/or broaden the scope of the current law to include non-disclosure and/or potential or perceived exposure, the Law Commission is clear.

We do not recommend the creation of specific offences concerned with disease transmission, either in relation to disease in general or in relation to HIV and STIs in particular: this too would require a wider review of all the available evidence. Nor do we recommend an offence of putting a person in danger of contracting a disease, or an offence of failing to disclose an infection to a sexual partner.

Law Commission Scoping Report: TRANSMISSION OF DISEASE (November 2015)

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: Lambda Legal calls for halt to HIV-based criminal prosecutions in wake of Department of Justice guidance

[Press release from Lambda Legal]

“We call upon those charged with enforcing such laws—from governors to prosecutors to police detectives—to halt the criminal prosecution and resulting persecution of any individual based on HIV status.”

(Washington, D.C. Thursday, July 17, 2014) – Lambda Legal today called for a moratorium on all HIV-based criminal prosecutions until state legislatures take action to implement the reforms recommended in the recent Department of Justice (DOJ) guidance advising states to eliminate such prosecutions absent clear evidence of an intent to harm and a significant risk of actual transmission.

“This is a watershed moment in the fight to decriminalize HIV. When the country’s leading law enforcement agency — working hand-in-hand with the country’s leading public health authority — reaches the conclusion that particular laws and criminal prosecutions are working at cross-purposes to our national strategy for ending the HIV/AIDS epidemic, it is time for those with the power to end these prosecutions to take immediate action,” said Scott Schoettes, HIV Project Director for Lambda Legal. “We call upon those charged with enforcing such laws—from governors to prosecutors to police detectives—to halt the criminal prosecution and resulting persecution of any individual based on HIV status.”

Earlier this year, the DOJ co-authored an article with the Centers for Disease Control and Prevention (CDC) analyzing the current landscape with respect to HIV criminalization laws in the United States. As a follow-up, the DOJ this week published guidance (“Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors” [link]) noting that these laws are not based on a current understanding of HIV or the availability of biomedical techniques for preventing its transmission, were enacted when the prognosis of those with access to care was much different than it is today, and place unique and unnecessary additional burdens on people living with HIV.

Schoettes added, “For years, Lambda Legal has been advocating for the repeal or reform of HIV criminalization laws, assisting defense attorneys from behind the scenes, and—when the opportunity arose and a solid legal argument could be made—fighting in court ourselves against the most egregious application of such laws. Along with a wide range of allies we have refined the arguments against these laws, made our case to audiences both gay and straight, and pressed others to join our cause. The growing drumbeat against these laws and unjust prosecutions finally has reached the ears of those in positions of authority. And this summer, the tide has finally turned in our favor.”

Within the criminal justice system, prosecutors have a significant degree of discretion and represent the most important safeguard against unjust applications of the criminal law. In this circumstance, any government attorney who is currently prosecuting a criminal case that turns upon the HIV status of the defendant is invested with the power to consider whether that prosecution conforms to the best practices set forth by the Department of Justice guidance and to discontinue prosecutions that are not in line it. In situations involving consensual sexual conduct between adults, a prosecution would not move forward under the parameters of this guidance unless there is clear evidence of both the intent to transmit the virus and a significant risk of transmission as a result of that person’s conduct.

“Right now, dozens of individuals in states all across the country face prosecutions that are not justifiable under the parameters set forth in the DOJ guidance,” said Schoettes. “No person who is in a position to halt such a prosecution should stand idly by while these individuals are subjected to such unwarranted persecution. We call upon those who have pledged themselves to pursue justice on behalf of the communities they serve to fulfill that pledge now, to end all prosecutions based on HIV status, and to return these individuals to their families and their lives.”

Last month, in a pivotal appeal litigated by Lambda Legal, the Iowa Supreme Court set aside the conviction of Nick Rhoades, an HIV-positive Iowan who was initially sentenced to 25 years in prison, with required registration as a sex offender, after having a one-time sexual encounter with another man during which they used a condom. In reversing the conviction, the Court questioned whether HIV-positive individuals who have a reduced viral load as a result of effective treatment can transmit HIV through sexual activity.

The DOJ guidance is available here

The Iowa Supreme Court ruling in Lambda Legal’s case Rhoades v. Iowa is available here

US: Iowa Supreme Court rejects ‘theoretical’ HIV risk, reverses ‘HIV exposure’ conviction

Last Friday, June 13, the Iowa Supreme Court set aside the ‘HIV exposure’ conviction of Nick Rhoades, who was initially sentenced to 25 years in prison, with required registration as a sex offender, after having a one-time sexual encounter with another man comprising anal sex with a condom and oral sex without whilst his viral load was undetectable.

In reversing the conviction, the Court recognised that sexual HIV exposure risks should not be based on outdated beliefs or theoretical risks and must be specific to the individual acts and situations that are before the Court.

Read the entire written judgement from the Iowa Court of Appeal

The Court’s ruling sends the case back to Black Hawk County District Court, where prosecutors could have another chance to claim Mr Rhoades actions leading up to his arrest violated the law. However, it is difficult to imagine that prosecutors would be able to establish that there is a factual basis to sustain a conviction in light of the Iowa Supreme Court’s decision, and much more likely that a District Court judge will allow his initial guilty plea – which the Court accepted was due to being poorly advised by his initial lawyer – to be withdrawn.

[Update October 1st: Assistant Black Hawk County Attorney Linda Fangman has filed a motion to dismiss the case against Mr Rhoades, meaning his six year ordeal is finally over]

The ruling came two weeks after Iowa’s Governor repealed the draconian HIV-specific law under which Mr Rhoades was convicted, replacing it with an infectious disease law that, amongst other significant improvements, provides a defence of taking “practical means to prevent transmission”, defined as “substantial good faith compliance with a treatment regimen prescribed by the person’s health care provider” and use of “a prophylactic device”.

[See this just published news story in ProPublica and Buzzfeed for more on Mr Rhoades’s case, the new Iowa law, and what else is happening in terms of US HIV criminalisation reform.]

HIV risks must be shown to be more than theoretical

The Iowa Court of Appeal’s decision was celebrated in press releases from Lambda Legal and the Center for HIV Law and Policy and in an editorial by the Des Moines Register. As well as personal victory for Nick (who last week had his GPS monitoring device removed by Senator Matt McCoy, during a moving ceremony at the HIV is not a crime conference in Grinnell, Iowa, following the new law’s retrospective removal of all people convicted of ‘HIV exposure’ in Iowa from the sex offender registry) it may also lead to judges and prosecutors revisiting outdated assumptions about HIV risk in future HIV-related prosecutions in other US states and jurisdictions.

“The importance of the Iowa Supreme Court’s decision cannot be overstated,” said Christopher Clark, Counsel for Lambda Legal. “We look forward to making these arguments again and to taking this Court’s clear guidance on the interpretation and application of these types of laws to the many jurisdictions in which HIV criminalization remains a pressing issue.”

In 2010, Mr Rhoades filed a petition in the District Court for post-conviction relief arguing that his attorney did not inform him of the specifics of the law, allowing him to plead guilty to charges that were not supported by the actual events and facts. After his petition was denied Rhoades appealed to the state Supreme Court.

Lambda Legal joined forces with Rhoades’ appellate attorneys, Joseph C. Glazebrook and Dan L. Johnston with Glazebrook & Moe, LLP based in Des Moines, Iowa, and The Center for HIV Law and Policy took the lead with the HIV Law Project in drafting a friend-of-the-court brief on the science of HIV treatment and transmission. The brief supporting Rhoades’ appeal was filed on behalf of The Center for HIV Law and Policy, the National Alliance of State and Territorial AIDS Directors (NASTAD), and the HIV Law Project.

In its ruling, the Iowa Supreme Court held that the criminal law required that a defendant “intentionally expose” another person to HIV. The court noted that the fact that HIV primarily is transmitted through sexual intercourse and contact with blood, semen or vaginal fluid is not a legally acceptable substitute for the facts necessary to say that a particular individual acted with the intent to expose someone to HIV in a manner that actually posed a real risk of HIV transmission.

Watch Lambda Legal’s Christopher Clark make his oral arguments before the Court of Appeal

Justice Wiggins, writing for the majority opinion, highlighted the specifics of the HIV risks involved in this case in three different places:

Based on the state of medicine both now and at the time of the plea in 2009, we are unable to take judicial notice that an infected individual can transmit HIV, regardless of an infected individual’s viral load, when that individual engages in protected anal or unprotected oral sex with an uninfected person. (page 3)

Today we are unable to take judicial notice that an infected individual can transmit HIV when an infected person engages in protected anal sex with another person or unprotected oral sex, regardless of the infected person’s viral load. (page 17)

At the time of the plea, Rhoades’s viral count was nondetectable, and there is a question of whether it was medically true a person with a nondetectable viral load could transmit HIV through contact with the person’s blood, semen or vaginal fluid or whether transmission was merely theoretical. The judicial notice we took in previous cases is subject to reasonable dispute here; thus, it is improper for us to similarly take judicial notice in this case. With the advancements in medicine regarding HIV between 2003 and 2008, we are unable to take judicial notice of the fact that HIV may be transmitted through contact with an infected individual’s blood, semen or vaginal fluid, and that sexual intercourse is one of the most common methods of passing the virus to fill in the gaps to find a factual basis for Rhoades’s guilty plea. Thus, there was not a sufficient factual basis for the district court to accept the plea. Therefore, trial counsel was ineffective for allowing the district court to accept the plea without a factual basis. (page 18)

In addition, the Court found that prosecutors must establish something more than that HIV transmission is theoretically plausible. The court rejected prior courts’ treatment of “possible” as meaning any likelihood of occurrence, no matter how remote. “Could” or “possible” in this context should mean, as the Iowa Supreme Court said, “the reality of a thing occurring, rather than a theoretical chance.” It also said that prosecutions must rely on expert testimony about actual transmission likelihood in these cases, and defendants don’t have to show that transmission would never occur in order to successfully defend against charges of HIV exposure.

First, we recognize this statute requires expert medical testimony on the likelihood of transmission of HIV. Experts are not required to testify in absolutes when it comes to causation….Second, and more importantly, we would not want to deprive a person of his or her liberty on the basis the defendant’s actions caused something that can only theoretically occur. (page 8 )

Of note, bearing in mind that only 25 percent of the more than 1 million individuals in the US who are living with HIV are achieving viral suppression, the amicus (friend of the court) brief was careful not rely too much on treatment’s impact on viral load, and rather emphasised the already low per act risk of transmission via various forms of sexual contact, regardless of whether the person was on treatment.

Rhoades v. State of Iowa, Amicus Brief, Supreme Court of Iowa

Canada: HIV groups upset because attorney general has no plans to consult them on prosecutorial guidelines

The Ontario government is writing guidelines for criminal prosecutions of HIV-positive people who don’t disclose their status before having sex, according to the Ministry of the Attorney General.

Arwel Jones introduces ‘Doing HIV Justice’ (Berlin, September 2012)

Arwel Jones, Head of the Law & Procedure Unit at the Crown Prosecution Service Strategy & Policy Directorate introduces the documentary ‘Doing HIV Justice: Clarifying criminal law and policy through prosecutorial guidance’ ‘ at the workshop ‘How to advocate for prosecutorial guidelines’ held during a one-day seminar on HIV criminalisation in Berlin on 20 September 2012.

The seminar took place on the occasion of the twentieth anniversary of the European AIDS Treatment Group (EATG). The meeting was co-organised with Deutsche AIDS-Hilfe, the International Planned Parenthood Federation, and HIV in Europe, a multi-stakeholder initiative exchange on activities to improve early diagnosis and earlier care of HIV across Europe.

Video produced by Nicholas Feustel, georgetown media, for the HIV Justice Network.

Workshop: How to advocate for prosecutorial guidelines (Berlin, September 2012)

Video toolkit: How to advocate for prosecutorial guidelines

May 30, 2013
 
 

New guidance from UNAIDS to limit the overly broad use of criminal laws to regulate and punish people living with HIV who are accused of HIV non-disclosure, exposure and/or transmission, recommends that:

Countries should develop and implement prosecutorial and police guidelines to clarify, limit and harmonise any application of criminal law to HIV. The development of such guidelines should ensure the effective participation of HIV experts, people living with HIV, and other key stakeholders. The content of these guidelines should reflect the scientific, medical and legal considerations highlighted in the present document.

So far, only two United Kingdom jurisdictions (England and Wales, and Scotland) have produced such guidelines. This workshop, held during a seminar on HIV criminalisation in Berlin in September 2012, discussed the challenges associated with the creation of such guidelines, providing important insights from prosecutors and civil society alike, and included the European premiere of the documentary ‘Doing HIV Justice: Clarifying criminal law and policy through prosecutorial guidance’.

See more at: http://www.hivjustice.net/feature/how-to-advocate-for-prosecutorial-guidelines-video-and-transcript

Video toolkit: How to advocate for prosecutorial guidelines

New guidance from UNAIDS to limit the overly broad use of criminal laws to regulate and punish people living with HIV who are accused of HIV non-disclosure, exposure and/or transmission, recommends that:

Countries should develop and implement prosecutorial and police guidelines to clarify, limit and harmonise any application of criminal law to HIV. The development of such guidelines should ensure the effective participation of HIV experts, people living with HIV, and other key stakeholders. The content of these guidelines should reflect the scientific, medical and legal considerations highlighted in the present document.

 

So far, only two United Kingdom jurisdictions (England and Wales, and Scotland) have produced such guidelines. This workshop, held during a seminar on HIV criminalisation in Berlin in September 2012, discussed the challenges associated with the creation of such guidelines, providing important insights from prosecutors and civil society alike, and included the European premiere of the documentary ‘Doing HIV Justice: Clarifying criminal law and policy through prosecutorial guidance’.

https://vimeo.com/album/2404804Read the entire transcript of the workshop below

Arwel Jones: I just wanted to say a few words, really, because you haven’t heard from me yet.  And I just wanted to say a little bit about my role and my observations, if you like, just before we watch the film. Just to, to place that in context.  And, even though I’m the only prosecutor here I believe, you know, I’m really pleased to be here. I’m really glad that we’re having this opportunity to come together to have this really honest and adult debate about how we tackle these issues.  And actually, when we stop and analyse it, the reality is we have a, a lot more in common than we have apart.  So it would be good to keep that in mind.  I’m an independent prosecutor.  I don’t work for the Ministry of Justice in England and Wales so, as such, I’m here more to explain what the law is in England and Wales and not to provide perhaps the policy justification for it.  Now, in England and Wales, we will prosecute for transmission whether that is intentional or reckless.  But we don’t prosecute, there’s no criminal offence of exposure and there’s no criminal offence of failing to disclose status. So I guess, in the context of the discussion that we had this morning, it’s that area around reckless prosecutions which is perhaps where there’s a, a difference of view between what England and Wales do and what those here representing the various agencies believe. But, as I say, I’m here really to explain what we do rather than why England and Wales have reached this particular position.  We’re here to talk about the prosecutorial guidelines that we have in place in England and Wales, and the film that we’ll watch shortly is going to explain how that came about, some of the obstacles that we faced along the way, but really the, the content and outcome of those guidelines will come through.  But a further point I really wanted to make was that, in terms of the success of these guidelines, you know, the success of these guidelines will not necessarily be particularly visible because you won’t get to hear about those cases.  We saw on various peoples’ slides this morning the lurid headlines that various sub-editors will put in their newspapers.  And, generally, it’s when a person is convicted of a crime of this nature that it becomes part of the public consciousness.  And there are, of course, in England and Wales, a small number of prosecutions that we do bring.  Now this is running around about.  We brought about 20 cases since 2007 so we’re talking about a small number of cases.  Aside from those 20 or so cases, there is significantly more cases which have been brought to the CPS where we’ve applied the guidelines that you’re gonna hear about now, and we’ve decided that no action should be taken against the person.  Now we accept that more needs to be done in terms of how quickly that process works and there may be some circumstances where the individual has been put through a very unpleasant ordeal simply from having had the police come in, arrest them, take away their property, etc.  So there’s more work that we need to do and we’re not claiming it’s a perfect system but what we would want you to just have in mind is that there will be a lot of cases which the police will investigate and the prosecution authority will decide this shouldn’t be prosecuted and that will be the end of the matter.  I just wanted to just say a couple of things really in conclusion and this was following on from the points this morning around, you know, preaching beyond the choir, going outside of this group of people who generally have a, have a common aim and a common purpose.  And, as I say, I come as an independent prosecutor, not as a policy maker so, in a way, what I say now (is) really more my personal observations having been involved in this work rather than any official standpoint.  But, in terms of extending the reach of this work and really looking to persuade authorities and law makers to change their approach, I would just perhaps make two suggestions really or offer up two thoughts for you. Firstly, I would just remind everybody, as I said at the outset, that actually we have a lot more in common with each other than perhaps we have different to each other and I think it would be really useful just to bear that in mind.  And, at the risk of sounding like somebody who doesn’t have a sense of humour, I think some of the language and the terminology around, you know, ‘speaking with the Devil’, etc, probably isn’t that helpful when you’re looking to try and build adult relationships with another agency.  So, as I say, we’re amongst friends here and I know that comments have been made in good humour.  But, actually, just to dislodge from your minds the suggestion that those involved in making laws and applying laws are somehow, you know, your pariahs, I think would probably help you get to the next stage.  And, in doing that, it would just be helpful I think to try and see things, and I offer these comments respectfully, and I hope nobody is insulted by what I say, but, if you could just perhaps see things from the other perspective, I think that might help you in overcoming some of the obstacles that you face.  So, for example, we have heard a lot this morning.  The line has been said ‘there is no evidence to suggest that prosecutions for transmission of sexually transmitted infections has a deterrent effect on other peoples’ behaviour’.  And the way that, that line, that mantra, if you like, is put out there suggests a misunderstanding of the purpose of any criminal justice system.  And those involved in the justice system, whether they be the law makers in the Ministry of Justice, or prosecutors or judges, just need to have a much wider consideration.  Deterrence is one aspect.  Public health is one aspect.  But we also have a responsibility to use the justice system for other goals and other ends.  And, amongst the other goals will be, as well as deterrents, there’ll be issues around rehabilitation but there’ll also be issues around delivering justice for the victims and recognising completely what’s been said about the mutual responsibility.  I think it’s probably unhelpful to try and leave out the point of saying that the victim or the complainants in these cases has no real rights to a recourse, that there’s no real right to honesty in the context of sexual relations. I mean, ultimately, you know, we’re dealing with scenarios, for example, of where individuals … you know, complainants will responsibly ask their partners questions around whether they’re infected or not, whether they’ve been tested, and where certain individuals will lie to that other person.  And, based on that lie, the complainant will be making an informed decision or what they think is an informed decision. Of course, it won’t, it won’t be a genuinely informed decision because they will have been lied to. So for that person there who ultimately is infected and sees the justice system as bringing them some recourse, I think it may not be enough just to say, “Well, you know, everybody’s got the right to be dishonest in the field of human relations.”  By all means, say the criminal justice response is disproportionate but I think, if you’re going to say that, you need to offer some kind of an alternative for those victims or complainants who are in this position where they are … there’s various pieces of work going on around restorative justice, which is an alternative approach to prosecution, which might possibly be something that could be explored.  I’m not saying that necessarily is the solution but I don’t think it really helps just to end your argument at the point of there shouldn’t be any criminal justice response and that victim or complainant needs to be left where they are.  And then the final point I would make would be just about getting the attention of the law and policy makers, and I think you just need to do what we’ve been doing today and that’s highlighting the much wider impact of this relatively small number of prosecutions.  Now justice systems, I speak of England and Wales but I suspect that others around the world are in a similar position, are absolutely creaking under a vast array of competing priorities and those other priorities will often have far more direct victims.  So, for example, in England and Wales, you know, those who are victims of rape and sexual offences are making a, you know, thousands of members of the population are victims of those crimes. Likewise, hate crimes: vast numbers of people are victims of a hate crime.  So, for the law and policy makers, you know, these are key priority areas.  Now, if you want to really push STI transmission up the agenda, you need to do what Susan was saying this morning, which is look beyond the small number of cases that are actually prosecuted and look at this much wider ripple effect.  Look at the rock that’s thrown into the pool and the much wider impact it has on society.  And I think by really getting those messages across, that would be the way to grab the attention of those who are responsible for law and policy.   So those are just a few introductory words from me.  We’re gonna watch the film now.  It’s about 30 minutes so there’ll be plenty of opportunity for questions and discussion at the end.  And, as I say, I’m genuinely pleased to be here and I’m really genuinely interested to hear your questions and hear what your own experiences are.  Okay, thank you.

[Doing HIV Justice screening]

Lisa Power: I’m, as you know, I’m Lisa.  I was in that film along with Arwel and Yusef who can’t be with us today.  I think what’s useful about the film is it shows that it’s quite a long process and quite a complex process.  And it actually, we were the first country to do it but it’s also now there’s been some guidelines in Scotland which is a neighbouring country within the United Kingdom, and things went slightly differently there.  What I would like to do is ask Cat Murphy who’s here, who had something to do with that, to say a little bit about that and then actually ask people – I think the best thing we can do is do this as a kind of surgery, you know.  You, you’re bound to have questions about what happened and we can talk through maybe how it could happen in other countries.  You know, what are the different barriers that you face?

Catherine Murphy:  Probably I think the two most obvious differences has certainly helped that across the border in England and Wales.  We had these guidelines and we could kind of refer to them, so that certainly helped.  But the nature of the politics in the UK is such that Scotland don’t necessarily always follow what England does, so it wasn’t a given.  So we had to make a legitimate argument. I think we didn’t have the same level that Lisa and Yusef had. The people who had been prosecuted in Scotland were exclusively white heterosexual men so we didn’t have the same equalities lever, if you like, and so we had to look for other, other means to open the doors.  The other thing was that the law in Scotland is different so exposure cases can be tried in Scotland.  So we, we had an additional difficulty.  And the third difference I would say is that the Crown Office in Scotland who have done a great job with us but consultation wasn’t something that particularly sat very comfortably with them, they weren’t as open to meeting with us and, and showing their working, as Arwel says.  That wasn’t something that institutionally they were used to doing. So we, the way we found, our first lever that we found was we actually, for a long time we had been told yes, exposure can be prosecuted but there’s no appetite for it; it’ll never happen.  And it did happen.  And the, the moment it happened, we realised we’ve been very naive here and we immediately started to lobby really quite strongly on the public health arguments. At that point, we go the public health Minister involved who basically told the Crown Prosecution Service in Scotland to meet with us.  So the public health argument, the justice, justice department weren’t necessarily listening to it but we got the, we got, we got that discussion at Cabinet level.  And that opened the door for us.  And I think we had to, we had to approach the, the issue of discussing it with the Crown Prosecutions in Scotland very differently.  They weren’t as ready to share things with us.  They weren’t as ready to put it out to public consultation.  And we really just had to work within the parameters.  We really wanted to see exposure charges dropped completely and that wasn’t going to happen but what we have hopefully done is, is get a policy which reduces the likelihood of them happening to a very, very small and narrow kind of criteria.  So it was, it was, it was just, it’s been interesting because we could refer to England and we could use the experiences there but we certainly had to adapt and change them where necessary.

Lisa Power:  Has anybody got any questions or comments?  Any observations?  Anybody who’s trying to do this in another country?

Marielle Nakunzi (Sweden):  Well we have actually but that was before I got bored on the project, so I don’t know how that went. Or rather I do know because the prosecutor’s office just said that, “Well it’s too few cases.” I’m sorry, I’m from Sweden, you know, the worst country ever!  Well they say, “It’s too few cases, it’s no big deal.  We don’t, we are not interesting, interested in going forward with this.”  But I, I have a few observations.  Lisa, you said in the film that you have to collect evidence that it’s not working. Could you please talk some more about that because I mean we know that it’s not working in a health point of view but how do I, how do I explain this to the prosecutors?  In what sense doesn’t it, doesn’t it work for the prosecutors?  And you also said that you have to get a change in the public opinion.  I think this is the most difficult part.  How do we get the public opinion aboard on understanding that this is an important thing to change?  I mean to, that this is actually an important justice issue.

Lisa Power:  The evidence that we collect, basically, because Terrence Higgins Trust is the biggest single HIV support organisation in the country and we have the National Helpline for HIV-related issues, we were hearing a lot about the cases that weren’t necessarily in the papers.  And a lot of, because I’d spoken up about the cases, I mean this was a controversial issue even within Terrence Higgins Trust.  I think one of the things that came clear from discussions from Deutsche AIDS-Hilfe earlier is that one of the issues, when this starts to come up in a country, there are often disagreements within an organisation about what should be done, and I led that debate within THT so people started telling me about these cases, started asking me from the Helpline and so on what we, what we should be doing.  And I just started writing down every single case, actually keeping the details of what was going wrong.  And we were able to uses that to show the, the authorities that there was a real mess going on.  And I think it’s fair to say that, I mean the Crown Prosecution Service was very aware that there was a mess going on because, centrally, they weren’t being told about a lot of the cases, strange things were happening locally, there were long delays because local offices didn’t know what to do with the cases and, instead of asking someone senior, they were sitting on them.  We were able to show from actual cases some of the things that were going wrong.  And actually we used that originally as leverage with the police and we started the work, working on the policing transmission document because the Metropolitan Police actually agreed to work with us and we were incredibly lucky that we found helpful officers.  But, if we hadn’t been documenting all those cases, we wouldn’t have had any lever at all.  And we had to put that, that evidence together with, with Yusef’s really good knowledge of the levers of power in the sense of equality duties and things like that to, to put that together.

Marielle Nakunzi:  So you mean that the prosecutions weren’t working?  The, the police work wasn’t working?  Not, not the actual prosecutions as such  wasn’t working against whatever?

Lisa Power:  We, we were able to show, for example, that, I remember the case of a man who was arrested on his doorstep and he didn’t even know he had HIV. That’s, he actually found out he had HIV by the police turning up on his doorstep to arrest him.  And marching him off to be tested.  Now, obviously, that’s a miscarriage of justice.  We had other cases where a gay man was assaulted by somebody he had picked up that night.  And, instead of the person who assaulted him being charged, when it was found out that he had HIV, there were threats to charge him. There was a lot of confusion about people being charged when they’d had sex with someone but no transmission had happened.  There were attempts to use all kinds of different charges so it wasn’t just grievous bodily harm – there were charges of, there was an attempt to bring charges of rape because it was seen as non-consensual sex. A whole load of other things going on.  Attempted murder in a few cases early on. So bringing, documenting the chaos is really important because, if you can’t show the something’s going wrong, you can’t expect people to move to put it right.  What was your second question?

Susan Timberlake:  Yes, how to change public opinion.

Lisa Power:  Well we didn’t.  We realised that it comes as, I can’t understand why it comes as a big shock to HIV activists that we have a different take on HIV from the general public because we know it in so many other areas.  We know that there are all those prejudices out there.  Certainly, in my country there, you know, we have a lot of, a lot of prejudices.  So we, we knew that general public opinion was not going to be easy to change.  And I think in England and Wales, we chose a different route from the majority of countries in the, in the mid-2000s who were going for legislative change or going for changing the views of the public.  We actually said, “We have to mitigate the harms that are being done, document what’s happening and it’s going to be a longer fight to change public opinion.”  And actually public opinion is beginning to change now.  One of the reasons it’s changing is because we had a prosecution last year for herpes transmission and, all of a sudden, lots and lots of people who were carriers of herpes or knew people with herpes, which is, “Hang on a minute, maybe this isn’t that fair after all.”  But you have to find those points of connection.

Arwel Jones:  Just going back to the first point around whether things weren’t working, from the prosecution viewpoint it wasn’t so much that things weren’t working; it was just we were in such unfamiliar territory. We use the same legislation here, the Offences Against the Person Act that we use for general crimes of violence. Now these cases, thankfully it could be said, are very infrequent. We have over 3,000 prosecutors in England and Wales. The chances of a prosecutor coming across a case of this nature was small.  The chances of a prosecutor having more than one of these cases was even smaller.  So we needed to provide something from the centre that would guide prosecutors who came into this unfamiliar territory.  I mean normally, when prosecutors deal with crimes of violence, we’re talking about fights in pubs or stabbings, or what have you.  It’s relatively straight-forward, you know.  Have you got the right person here?  Could that person say that they were acting in self-defence?  Did that person actually cause the harm that resulted?  You know, these are fairly standard questions.  Move this same legislation into the field of consensual sexual relations, you can abandon all those questions and a whole new raft appear.  So that’s why we felt we had to come up with some guidance.

Marielle Nakunzi:  That is actually good advice because you have to talk to lawyers or prosecutors in legal language and that I think everybody can understand.

Catherine Murphy:  Can I just say a thing about Scotland in terms of the point that Lisa made on criminal investigations?  The evidence that we produced to the Crown Office in Scotland was again about how it was not working.  But it wasn’t about the prosecutions.  To this day, the Crown Office in Scotland think that all the prosecutions are very sound.  And we didn’t even have that argument.  We didn’t have that discussion.  What we did was we showed them maybe between about five and 10 police investigations which had never reached court but were very, very clearly inappropriate.  And what we said was, you know, “Because you haven’t clarified the law, because you haven’t provided a policy or guidance, you might be confident that, when it gets to you, your decision-making is very strong.  But look at what’s happening on the ground.”  And we then had to act.  But it made, it created a space where we didn’t have to have the arguments about the actual prosecutions; we could just focus on, on the, the other kind of collateral damage, if you like.

Kevin Osborne (IPPF):  I think the film was really great.  You all looked really good. I like the soft angle lens that you used when.. really nice.  No, you all looked great.  Two quick questions. Arwel, you said something about there was a long time period, I think a year, to get it finalised ’cause you got like 60 responses.  Was there anything surprising in the responses that, if you look back and go, ’cause obviously you deal with them. Was there anything that you thought was really surprising or good?  That’s the one question.  My other question is maybe for everybody, is around the impact.  So you’ve done these prosecutorial guidelines, you’ve all worked well together.  Like so what?  What has it resulted in?  Has it, for example, resulted in less work for CPS because now it’s very clear there’s certain cases, when they maybe hit your desk, they’re just a non-starter so it’s less work for the police, less work?  Are you Lisa seeing less people coming forward thinking they may have a case, they may not have a case?  So, if we look long-term besides like the process issues, like the, like the so-what, has it resulted in, I don’t know, like I’m just trying to think, less work because of the clarity, less people feeling like they can criminalise, that it’s, you know, what’s the like so-what the impact of it?

Arwel Jones:  Yeah, in terms of the, the consultation, it kind of threw up all the different areas which are featured in the final guidance.  As I said, in the film, the science was all very new to us and, as lawyers, we’re trained in certain doctrines and then now we’re having to move into a completely different field.  So that was a big eye-opener for us.  Likewise, the issues around the reasonable safeguards, the issues around consent. Very subtle issues around consent. I’m familiar with consent in the concept of rape and that’s fairly straight-forward up to a point. You know, is the person consenting to the sexual act?  Here we have a very refined version of that. A person can be consenting to the physical act but not consenting to the risk that is attached to that physical act.  So, in a way, these were all things that were coming out through the consultation process which made their way into the final guidance.  I mean, in terms of, of the impact, I would just wish to say really, as I said at the outset, firstly there are a whole raft of cases which never go anywhere now, which I think is a good, positive outcome.  Secondly, I think transparency has been reached and again, as I said in the film, people might not agree but at least they know the process by which a prosecution decision is made.  And, thirdly, and perhaps more controversially, you know, we’re aware of the arguments that say prosecutions for transmission may result in certain people not testing themselves and therefore that increases the public health risk, which is a fair point and a fair argument.  And then the argument is modified to say and actually the prosecutions themselves and the guidance themselves are some sort of detriments to public health.  Now it would be interesting to see what sort of evidence there is as to, you know, in the context of sexual relations, how much people give advanced thought to the prospect of prosecution.  Now that evidence may exist and, if it does, it would be really interesting to see it.  But, if people do give advanced thought to the prospect of prosecution whilst they regulate their sexual lives, and if they decided per chance to go onto the CPS website and say, “Well I wonder what the CPS would do if I act in a certain way?” I would hope that people would be encouraged by the very clear statement within our guidance that says, you know, there are two courses here open to you which will mean that you’re not really gonna be looking at being prosecuted.  You can either use a reasonable safeguard, which effectively negates recklessness, or you can explain to your sexual partner and secure their consent to the risk involved.  You know, take either of those courses, you know, and you should be fine.  So, in that sense, you know, if that is helping towards greater responsibility within sexual activity, it would be nice to think that this was a, a positive outcome from the guidance.

Lisa Power:  I think, to be honest, in, in some stages of this, we actually created more work for our Arwel’s team rather than made less for them and I think particularly the later stages of the consultation was a lot of work for you. But it’s been incredibly useful and Arwel’s team have now produced a training, an on-line training guide, and stuff like that.  And for me I’m actually, there are, because of the amount of publicity there’s been over the cases that go to court, there are actually quite a lot of accusations but those accusations are getting cleared up much faster these days.  Far fewer of them are getting to court and then having to be stopped because they haven’t been through due process. There is much more consideration given by people in Arwel’s team to whether a prosecution should take place.  The whole system is massively more transparent.  We’re able to give people much clearer advice on the Helpline or face-to-face, or in training with doctors, things like that.  So I think it’s, there is plenty of evidence of the positive effects of having done this.  But what I’m doing at the moment is I’m working with Arwel’s team to actually do an analysis of the cases that have been happening over the last couple of years, the ones that have gone as far as reaching Arwel’s team.  The ones that have gone on to prosecutions and the ones that have not been taken forward, and trying to look at what are, you know, are there any common factors in the cases that have gone forward and the ones that haven’t.  And it’s clear to me that actually one of the things that’s happened is  the police guidance came in after the Crown Prosecution Service guidance and the police guidance has not been promulgated through the police with anything like the vigour that the CPS guidance has been promulgated through the CPS.  So we are still seeing a lot of errors at the police level. So that will be quite interesting.  But that research is pretty much in, in preliminary stages.  But again the Prosecution Service have worked with us really closely.  They put a lot of working into that, for which I’m profoundly grateful.  They’ve got an interest in seeing that justice is being done and that’s really helpful as well.  And it’s as simple as: if something’s going wrong with a case and it comes to our attention, I can phone Arwel or I can phone one of Arwel’s staff and just say, “Is, you know, are you sure that this is following the procedure, this case?”  And, and I can trust that Arwel will look at it and we’ll get a straight-forward answer.  And that makes people a lot more confident that we might not like some of the law as it stands but at least there will be a lot less miscarriages of justice.

Nikos Dedes (Greece):  Thank you. I have a question for Arwel but before that I just wanted to make a comment about the question of whether the law or the litigations can act as a deterrent  And, and these may be blurred a little bit within the European context because we have most of the litigations in countries where they have very low prevalence and therefore one may wrongly assume that it may have actually worked as a deterrent.  But Susan perhaps later you can give a comment on the data that Scot Burris presented from the US where they have measured that the impact of all these stupid litigations of biting and of spitting, and all of these things, have absolutely had zero effect in when you would ask people whether they would protect themselves or whether they would be aware of transmission.  So, so there is a lot of evidence in the US that it actually doesn’t work in a positive manner.  My question is: how did you escape from the exposure debate?  Because, indeed, all the edifice of your guidance is based on the fact that you need a transmission otherwise you’re gonna have so much false accusations coming forward, and saying, “Oh well, this person didn’t tell me he was HIV positive.” I mean you can make up this. You can, you can wrongfully accuse someone and you can even argue that, you know, “Well I didn’t get HIV but he pointed the gun towards me.”  But how did you, from the legal side, how did you just keep it exclusively to, to transmission?

Arwel Jones:  Well I think the short answer would be we could say, “Tell us what criminal offence has been committed.”  We took the first case of Mohammed Dica to establish in law that an actual transmission fell within the remit of this act from 1861 but, obviously, if somebody makes an allegation, the first question that a prosecutor will ask is, “Well what crime has been committed here?”  You know, there simply isn’t a crime on the statute book. You could attempt an intentional transmission so, if somebody went out, I don’t know how you’d get the evidence of this but, if somebody went out trying to seek sexual partners and for whatever malicious reason wanted to try and infect them, then you’re into an intentional transmission scenario.  If they had sexual relations with that intention but transmission didn’t actually occur, then that would be an attempt.  But that’s the only scenario.  It’s never occurred, we’ve never had a case to consider along those lines, but it’s legally possible.

Lisa Power: There are pros and cons to using existing laws and we complained a lot about the fact that the legal system was using a law from 1861 that was so vague but one of the beauties of it is that the charge is reckless transmission and you can’t attempt to be reckless because, by the very nature of recklessness, you’re not thinking about it.  So you can’t make a conscious attempt to be reckless.  So we were, in some ways, we fell into that.  We were lucky that that was not possible.  But, in the early stages, in the, in the mid-2000s, there were a number of fairly strong attempts to charge people with all kinds of things around mental anguish, actual bodily harm, all kinds of other things for, for actually just exposing someone to HIV but none of it took.  God bless the English judicial system which just said, “No, it’s complicated enough as it is thank you very much.”

Susan Timberlake:  Let me, let me just do a check-in here.  Now we’ve, we’ve heard about the development of these prosecutorial guidelines and people have, one interesting point made during the film was that it was a conscious and maybe controversial decision to go this approach which is basically harm reduction.  And two groups that opposed criminalisation chose the harm reduction approach of, of working with the CPS to develop the prosecutorial guidelines.  From the perspective of those here and the work you’re doing on this issue, you know, would you feel comfortable with this approach and do, are any of you in here wanting to take up and move forward on the development of prosecutorial guidelines?

Nikos Dedes: Well I’ve already approached Susan and Arwel about what we would like to do in Greece because you may have read that, in late April, there was a police raid a week before Greek elections.  There was a police raid in the streets and the apprehended women who were soliciting sex, well at least they were accused for that, those were women who were drug users and the majority of them actually had been infected in a huge outbreak among drug users in 2011 for which obviously the State should be, we should be pressing charges against them.  And the same Minister who was the Minister of Health and should have been responsible for having averted such an event, was then using a law for public health protection and, and, and, you know, and then we believe that they, they misused the law and they made compulsory testing within police stations without consent.  And the majority, of course, of the women were found to be negative but, for all those who were found to be HIV positive, some 30 women, they pressed charges for intentional grievous bodily harm, against unknown people.  Because, even in the Greek law, the Greek lawyers were telling us that the, that the law that they used cannot be initiated without a complainant. It requires a complainant in Greece. But the, the prosecutor, in the absence of a complainant, complained on behalf of the society.  And that’s why also they, they put their names and their faces in plain public view.  So this has reminded us that, I mean this, what we were planning to do we had decided before this event.  We wanted to have a workshop where we would invite peers from abroad because we were aware of what the Crown Prosecution had done, and have a discussion with the prosecutors in Greece, and also with judges, and use all the policy recommendations that have come out from UNAIDS, and have a debate with academics and the Ministries of Health and Justice, and, of course, the, the judges and the prosecutors. So this is what we intend to do and we hope that such a debate can increase the awareness among all these judges and the prosecutors about HIV today.   What it means to have HIV.  What is the harm.  What is, what are the risks of transmission.  All of these things that are misrepresented by the media as well and people have not caught up with  So we hope that this process and learning from the excellent work that you did in the UK can actually help  both in the long-term but also address the acute problem we have right now.

Marc Dixneuf (France):  I’m Marc. I work in France and in France here it’s a question of contacts because we have a new government and a new ministry of justice.  And she just have a long interview in Le Monde yesterday and she did not say that in these words but  in fact, she want to, to stop with penal populism.  And it’s very, the penal populism … yeah, because you know it’s a way you have, you do not discuss anymore of the sort of meaning of a fine or of a sentences, for example.  Last year in France, as in all the countries, the sentences for prison, for jail have been more and more years and years, and years, and things like that. And she decided to stop that, just to question what is justice for? What, what is the meaning of justice?  So it’s a good context. And the other thing is, our problem in France it’s to find the right button to push on because with the CPS and with the question of equity, it was a way to, to get in this discussion.  But in France I wonder which is the, the right way to get in.  Because we have a National AIDS Council, I used to work for it and I’ve contributed the first position of the National AIDS Council on criminalisation, it’s not a good text. It’s bad. And I think that now we have more information and the works done by UNAIDS, by the Commission, and the works done in England, give us information how to work better.  So the National AIDS Council, would be interesting to restart work on it but I think that the National AIDS Council have to do what we didn’t do before.  It’s to work more closely with justice administration, with the lawyers, with the judges. And that’s something that we plan with, with the National AIDS Council.  And like maybe it could be successful. But we have very few cases in France but more and more each year since four or five years.  So it’s started to be a little bit a problem for us.

Marielle Nakunzi:  Well, as you have understood, in Sweden we have many hills to climb.   First of all, more than half of our cases are exposure, non-disclosure, exposure, not actual transmission, so that is the first hill to climb. And I think we need to work together with the health authorities, people who can explain that this doesn’t help them in their work, which is also very important. And I think we are on our way to getting a good collaboration. But the next step: I think we have to work on guidelines. Since we are using the general law, we can’t go in and ask to change the law.  We need guidelines. I think it’s very inspirational that you have come so far and I think we can use the methods but we still need to work on the language.  We need to find our allies and I think again that medical authorities, disease control board and so on, they are starting to move and we are very happy for that.  It will take some time but I would really use, we, I saw you in, in Washington.  I have all the papers.  So we are I think for us it’s, it’s the way to go.  And I hope that we, in the Nordic countries, can work, because we have similar systems.  So we can also work together on this.  So that’s how we will continue.

Kim Fangen (Norway):  In Norway now we’ve for a long time, the National LGBT organisations have had a health program called ‘Pink Competence’ or something and they’ve been out talking to, to nurses and doctors.  One thing is certain: health issues that are, this group are faced with but also how they are treated.  And now they have started with a school programme and they also want to do a justice police program, mainly focused on hate crime and, and, you know, general violence towards gay and lesbian people.  But I also asked them if they would include HIV and STIs in that, and I think it’s very important, especially in the process we are in now in Norway, to raise this issue and see how we can approach it from different ways, and just start to communicate in a constructive way.  So we’ll be in touch.

Lisa Power:  I just wanted to pick up on something that Susan said a few minutes ago which was you referred to this I think very perceptively as a harm reduction approach.  And I find it very interesting that, that is hasn’t been taken up in more countries because HIV activists are generally very keen on harm reduction and we think harm reduction is a great idea in terms of drugs issues.  We talk all the time about condoms or reducing viral load to zero, which are not perfect but they’re very good harm reduction measures.  They’re much better than not doing anything.  And yet, in many countries, I’ve seen people just not, not take this route because it doesn’t actually change the law.  And I think it, it does us no good to be purist because we have to reduce the harm that is being done.  If we believe that harm is being done by these cases, then why are we not working to reduce that harm?  I think to, to fail to do that suggests that it, we’re, it’s just rhetoric.  But maybe that, I’m biased because, you know, it’s definitely made a difference in England and Wales.  We have yet to see whether it will make a difference in Scotland but we very much hope so.  And just having that dialogue is incredibly useful, you know.  I think it’s important to get a better understanding between ourselves and the law because the law is used in a number of different ways about HIV.  It’s not just criminal prosecutions.  The way that people with HIV are treated within the police and the legal systems is often not entirely fair.  And I think it helps to bring all this together.  Is that just me?  Does anyone else have a, a view on that?

Silke Klumb (Germany):  So as Carsten said this morning, we are discussing if this might be a way.  I think it’s a way of harm reduction and we want to go this way.  We will see how it can go with 16 federal states and, to my perspective, it has to do with the justice system as something not reachable and independent, and not addressable, so what we perceived for a long time.  And we have to learn the language. To be heard, we have to learn the thinking or the perspectives of the justice system to go into discussion. But we have to do so.  And what we learned in the last months during the discussion of our position paper but as well in the National AIDS Council where we will have a position paper or a position as well, that there’s such a lack of knowledge of living with HIV today and tomorrow, and a lack of knowledge about transmission and about the epidemic that only imagining what people could learn by doing this process of having guidance, the whole discussion on: okay what’s, what is the situation?  We had a discussion in March, on a conference in Munich, where a prosecutor from, from the Munich court took part in a panel discussion and he afterwards said that he learnt such a lot on HIV and on his perspective, which was leading his whole picture of HIV transmission or exposure.  So we try to go on with this dialogue but he was stopped by his Ministry or his boss, whoever it is is. So not the Ministry: probably… So it’s very difficult to find people who take the responsibility and say, “Okay, I’m up to go with you.”  And they don’t know where we will find them but we will find them I’m sure.

Susan Timberlake:  Okay, I just want you to all know I’m sending around a few ‘drugs’.  It’s sugar, chocolate and alcohol.  So, when you eat these things, go like this, okay.  Because otherwise you’ll have it all down your front.  And, if you don’t take alcohol, don’t eat one.  This is to get everybody’s energy level up, okay.  I think, you know, it sounds like a barrier for everybody is entering the world of the prosecutorial service and trying to speak the language, and find the levers. I’m wondering if there’s been other discussions about … I don’t wanna take it away from prosecutorial guidelines but are prosecutorial guidelines considered one of many ways to minimise harm or are there other discussions with either prosecutorial services or health ministries even about other ways such as, well, Arwel you mentioned restorative justice and there’s also various public health measures that some countries have tried. Sweden is well-known for those.  And there are lots of issues regarding those.  But is this a discussion where people see prosecutorial guidelines as one of several ways to deal with overly broad criminalisation or is no-one considering other alternatives?  Anybody want to respond to that?  Kim maybe you could say whether or not you, coming out of this massive work that the Commission has done, will there be ways to build on that towards different procedures or approaches that will improve the situation in Norway?  I don’t mean the details ’cause I know you can’t speak about the details but I mean it’s a tremendous learning process where in Norway they’ve brought together so many different speakers and interest groups as you did on maybe a smaller, well I’m not sure how big it was in, in the UK but, you know, are you going somewhere with this beyond just the Commission report?  Do you think you can build on it?

Kim Fangen:  Well I indeed hope so because I think it’s, the work that  has been done is very thorough and also we’ve been 12 people together from various areas trying to find the same language. And also, as you said trying to see it from different angles.  And for me, personally, it’s been very useful, and I think that we all can learn something from that.  And I think it should be a clear ambition to try to take this further.  And also, when this hearing letter goes out and we start to discussing it in various places, I really do hope so. And I think, if we actually are going to achieve something, this has to be done.  And the first place that we want to go with this is to the medical people so see how the can take it further and how they can start to talk with the lawyers etc, etc. And I think that’s the way to do it.  But I think  it’s a good platform to build on.  So hopefully, yes.

Marielle Nakunzi:  I think that the guidelines that is the goal but there has to be a lot of other things to be done. For different reasons, not only for the question of criminalisation, but for the stigma issues as such. We are working currently with the Disease Control Board to try to, they are trying to do some guidelines on risk, which will be very important for us when we continue and talk to the prosecutors.  And we are also discussing on the Nordic level to try to get the Nordic Council aboard because there are a lot of good areas to discuss between the Nordic countries so we want them to allow us to present our cases on the Nordic level.  And I think that will be a very important thing to do because we can learn from the Danish example, from Norway’s very good research and from what we are doing in Sweden and so on.  So Nordic Council is the next step for us we hope.

Nikos Dedes:  I think that, apart from this interventions within, for procedures is also to make more visible reversals in, in courts, particularly Supreme Courts, which has already taken place.  And this could be collected and made more public.  I think the, also the, already the one change in Denmark in the law – maybe there are other examples.  And we’re waiting for, so changes in the legislation, reversals of court cases – this could help.  And I think what you also mention about the evaluation of the risks. CDC only this year, after 30 years, published on their website the risks of transmission of HIV.  And I think that we should use that, I mean and, of course, there should be, let’s see what ECDC would also do so that we can use this as evidence but actually, in terms of recklessness or what is the risk of, in the absence of transmission, of how reasonable it is to press charges for so low risks. And, if I may comment, whenever we use about reasonable safeguards, I think it is an insult to antiretroviral treatment to equate it to condom use.  Condom use is exceedingly less efficient than antiretroviral treatment. They cannot be, actually, one could say that a person who has had an HIV negative result before a week is actually exposing too much greater risk every time he has sex with a partner, with a condom, compared to anyone who is on treatment. So it’s, they’re, they’re not comparable.

Lisa Power:  Well I, I should have known I was like blue touch paper and retire with you on that by now but what I’m saying is they may not be comparable but neither of them is abstinence. And, effectively, changing the law is like abstinence. And all of the other things are some form of harm reduction. But I think there’s another point that I wanted to make is that the thing about these guidelines, now we have them, although I don’t think the system is perfect, one of the things that was going badly wrong beforehand was that the people who were most likely to be prosecuted were… they were migrants or people who didn’t have English as a first language, people who had no access to the justice system.  And I was very concerned about serious miscarriages of justice with people pleading guilty because they didn’t know any better or the guy, for example, the second case who just pleaded guilty even though he hadn’t been tested. Now that would not happen now.  And I feel much more secure that although there may be an early stage miscarriage of justice of some kind that actually, by the time something hits court, it is much less likely to result in any kind of a miscarriage of justice.  And I think that is particularly important because there are different levels of access to justice and I, in my middle class innocence, was not aware of the levels of disparity between the access to justice of an undocumented migrant who didn’t know their way around the English law and a highly articulate middle class gay man who knows it chapter and verse, and has access to a really good solicitor, and a private eye, to chase after other people that the complainant may have had sex with and things like that.  So there’s a real levelling of the playing field in having these guidelines that I think is absolutely vital.  As long as there are laws around this, that makes a huge difference.  And for me that’s one of the big things.  And I know, as you said Cat, you know, the people in Scotland were not undocumented migrants from Africa but actually all those white heterosexual men have been socially disadvantaged in some way.  They’ve been migrants. They’ve had mental health problems. They’ve not had access to decent justice.  Yeah?

Catherine Murphy:  I mean it’s just an observation but what I meant by that is that it wasn’t the same lever we used.  We used a different lever but I think the, the men that had been prosecuted in Scotland were perhaps the people who were the furthest away from support and services, and they were the group who had the least amount of kind of recognisable support and services. And I think that was evidenced by the fact that on more than one occasion the first we heard about the cases was when they were in the national newspapers. Where people contacted us, we were able to help them, and in most cases it didn’t make it to court, where we were able to intervene and help people. But it’s when people didn’t have access to support that it more often than not made it to court.  One of the things that you picked up on that I think was really important and it was very, very important in Scotland was we were able to open the door and we were able to go in there and make the initial arguments but there were, at points where I could see the prosecutor’s kind of eyes glaze over, because they knew that I was just kind of on my high horse and having, you know, having a rant.  But where it was really, really useful was to get the clinicians involved and sometimes to my frustration, but that the views of the clinicians and the arguments of the clinicians carried much, much more weight.  But getting them involved really kind of started to tip the balance for us.

Edwin Bernard (HIV Justice Network):  Hi, so one of the reasons that I wanted this, this workshop to happen was about getting Susan and Lisa, and Arwel together in terms of… So the question I really want to ask is of Lisa and Arwel, if you hadn’t, didn’t have already prosecutorial guidance and you knew now that UNAIDS was coming out with its updated guidance, which was pretty much a sort of generic version of what you’ve done, would you look at that and go, “Yes, that’s a great idea. Let’s look at UNAIDS policy and  incorporate it in England and Wales”?  Because that’s sort of what we’re not trying to ask the rest of the world to do.  And Susan, I sort of want to ask how, given that UNAIDS usually works in countries outside of Europe, particularly outside of western Europe, what kind of influence do you think your updated guidance will have in terms of helping advocates working towards prosecutorial guidance and how can we help you and how can you help us?

Lisa Power:  Okay, well I think we did use the existing UN materials when we were having the discussions but, at that stage, there really wasn’t that much.  I think the longer you don’t do something about this the harder it gets to think of this as a reasonable path because you’re so embroiled in all the other arguments.  And for us it was quite a simple decision at that stage.  I think for somebody to have gone quite a few years down the path of fighting criminalisation and then to move into it, which is what the Scandinavian countries are doing, is much harder.  But, actually, you’re doing it in a much more coherent way than we did it.  We really stumbled around and I think, you know, the film is, barring my participation, the film is brilliant but it, the one thing it can’t convey is the years in which we just wandered about poking different levers and trying things.  And I actually think, you know, you’re doing a really great, coherent job now, the stuff that Matthew was putting up today about the evidence, the way that you’re understanding the, if you like, the Scandinavian psyche around law and trust, and stuff like that.  We didn’t do any of that stuff.  We just cobbled it together. And actually, I think if we’d had all of these things now, it would have been a much less painful job.  I might still have wanted to shoot a couple of people and that absolutely doesn’t include Arwel, but some his predecessors in this process were more difficult to work with than Arwel was. And I think that’s actually one of the lessons is find the champions, find the good people, find the people who can work together and from our end don’t use that language, don’t do the, you know, the Devil stuff or whatever.  We chose not to take people in who were shouty and we chose to try and use what we’d call ‘parliamentary language’ but I think, in this case, it’s UN language.  But we’re all… it’s very easy for any of us to draw battle lines up.  It’s very easy for any of us to perceive people as the other side.  And actually finding out what we had in common around wanting justice, wanting the least awful process, wanting to work our way through frankly a law that neither or us particularly chose was incredibly helpful. Is that fair?

Arwel Jones:  No, absolutely, that’s fair.  I mean the CPS was formed in 1986 so we’re still a relatively young organisation but we are a, I think a rapidly maturing one.  I think what Cat described as perhaps the shutters coming down is where we would have been a few years ago but there’s been a growing recognition certainly for us as a prosecution service that we’re there to, you know, serve our communities, and that includes the interests of all within the community. And I think the process that this was an early part of has now continued to the extent where this is, you know, business as usual for us.  I mean a key issue in the UK in recent months has been around the activities of journalists who have been hacking into mobile phones and computers, etc. Again, similar to STI transmissions, a very small niche area of prosecution.  A very unfamiliar area of prosecution but one where we needed to develop an understanding of how were we going to approach those cases. On the one hand, we had recognition for freedom of speech, freedom of expression and the right to a free press to carry out its valuable work in exposing wrong-doing, on one end of the scale.  On the other end of the scale, we had to recognise the right to privacy of people such as celebrities who shouldn’t have all their voicemails listened to. So again we had to produce some guidelines this year on that. We followed pretty much the same process. We invited in all the groups. We met with a number of journalists, editors, who told us, “Look, you can’t prosecute us because we’re exercising our right to free speech.”  We met with some victims groups who said, “You’ve gotta do something about this.  These journalists are acting beyond the pale. You know, what they’re doing is unconscionable and it’s really affecting our lives.” So from those discussions we produced a draft guidance document. That was consulted upon and now, in the last couple of weeks, we’ve published our final guidance. So again it’s a similar transparent process:  you talk to people, you listen to people then you lay out your guidance so that, in the months to come when we make decisions as to whether or not we’re going to prosecute journalists, you know, at least people know the framework within which we’re operating.  So, in a way, this, the world of STIs was the start of a process which has now taken us to where we are now and we, we feel very comfortable with this.

Lisa Power:  I’ve never thought of HIV activism as leading to the Leveson Inquiry, but it’s, it’s fascinating Arwel.

Susan Timberlake:  Let me see if I can first remember Edwin’s question and then, second, respond to it.  You know, an organisation like UNAIDS is in an interesting position here because, basically, you know, we’re supposed to guide governments on the most effective HIV response but what we’ve traditionally been doing is working with developing countries and that’s where most of our offices are, almost all our offices, and we relate to the developed world as donors to the global HIV response. We’ve take on, though, the developed world more and more lately through the issue of what we call ‘punitive laws’ and these are not only criminalisation of HIV transmission but it’s HIV-related travel restrictions, it’s heavily punitive approach to drug possession for personal use, to sex work and, of course, it’s not such an issue in the developed world but it is other places. You know, LGBTI, criminalisation of homosexuality.  So, we have the scope to do that – I’ll be frank with you that, you know, sometimes developed countries look at us like, “You’re crazy,” you know, “we’re not gonna listen to you, the UN. We consider you a development agency that’s supposed to be working with the developing world.” So it’s somewhat of an uphill battle but, you know, we’re hoping to the degree that we can put out something useful that it will be another authoritative voice that will be taken up and, and will be useful.  I don’t wanna to sing the possibilities of this document too highly because I think in this world, and we were talking about it before, that prosecutors listen to prosecutors more than anybody else. And police listen to police. And it’s as if, you know, if you don’t come from those backgrounds, you really don’t have that much to add. I don’t mean to put it that starkly but, you know, I’ve been in many sessions where we’re trying to sensitise police to HIV-related issues and they wanna hear from other police, and the other experience, and that’s understandable because that’s their world.  So, whereas the UN can come out with something that’s authoritative from the point of view of being the UN, being supposedly bringing together all the the science and the latest law, these sort of efforts are also incredibly important and need to, somehow we need to find ways where they’re taken forth into other prosecutorial services and national context.  But we have just a few more minutes.  One of our take-aways that we’re supposed to have come away from this to report on at the plenary is what people plan to do in the next five years. Now we’ve heard some views from France, from Sweden, from Norway, from Greece. You’re in  Germany here. So it sounds like, you know, people do have plans. Does anybody else who hasn’t spoken want to add anything, you know, from your perspective of where you might wanna go with this?  Do you think it’s relevant the notion of pursuing prosecutorial guidelines in your context?  Sir, do you wanna say anything?  No?  Anybody else?   Cat?

Catherine Murphy:  I think there’s two, I think we probably in Scotland have two plans.  One would be to again kind of follow the lead, if you like, of England and we have these prosecutorial guidelines now but what we see them as most probably most importantly is a lever to speak to the police and to try and improve police practices. Because actually I do actually think that that’s what causes the most harm to individuals is actually unjustified investigations rather than the actual cases that make it to court. So I think the plan is to speak to the police, but the other thing I would say about Scotland is that we haven’t mastered entirely is that the same month that the guidelines were being published, earlier that month we saw HIV used in an assault case as an aggravating factor in an assault case for spitting and biting, which is something that had never, ever happened in the UK, and it was only in Scotland.  So I think we’ve managed to get these, these guidelines on HIV transmission and exposure but we still have, I think we’re probably gonna have to go again for another set of guidelines, maybe a shorter set, around HIV as an aggravating factor in any kind of a criminal charge, most predominantly assault.  So I think it’s gonna be just an ongoing process but hopefully we’ll get there.

Silke Klumb:  It’s more on the question what else than prosecutorial guidelines. I wanted to add two things. First, we have the very special situation in Germany that all judges refer to a verdict from 1988, from the highest Supreme Court, so there is need for a new verdict but we won’t get any if there is no reversal.  So we don’t know how to manage this but this really could change the whole picture because it’s not anymore 1988.  And the other thing, working with clinicians, to make sure that they give more…they feel more the power they have in those whole prosecution, in the whole processes because those clinicians who are heard in the processes they have really the power to give not only an actual picture of living with HIV today but also to give their view on how the whole situation of transmission and epidemiology is working.  And they sometimes just forget about it.  So there are some of the clinicians with us discussing and also discussing with their circles of, how do we say this, I forgot the word … Okay, so in their working groups to make sure that the importance of their consultations is really seen.

Susan Timberlake:  Yeah, I think that’s an incredibly important point that, and we often say that what we need is a lot more activist-scientist, you know, or, or medical professionals who first of all a lot of ’em do not know what’s going on in the criminal justice world around this issue and, when they find out they’re aghast.  And they, you know, with probably not that much support or encouragement, would be willing to speak out and engage with those who would listen to them. And so that’s a real, very important strategy. Your other point about what we would call ‘strategic litigation’ trying to get a court case that is going to itself improve the application of the law is also very important.  We’re all waiting for the Supreme Court of Canada to issue its verdict and it’s quite… it could go I have no idea which way it’ll go but let me just say it might be interesting Arwel if you commented on this.  The way UNAIDS is going right now in generic terms about developing our guidance is that, you know, we’re asking courts and prosecutors to do something which is difficult to do, which is to take into account a lot of the messy, complex factors of sexual transmission, or a threatened sexual transmission of HIV that go to the issues of harm and, and risk, and penalties. And the court in Canada has before it, and I may be mischaracterising this, and I apologise if I am, but it’s very tempting to just base it all on disclosure. If the the law requires disclosure, it simplifies the life of prosecutors tremendously because it just means that if you’ve had sex and you’re positive, and you didn’t disclose, you’re guilty. That’s it. That’s the only factor you look at. And there are quite a few jurisdictions like that, and it’s an easy way to go for courts. And it’s tempting I think in part because it’s easy. But what we’re usually arguing is that, no, this is highly complex, intimate relationships, it’s wrapped up with scientific considerations that change according to the nature of the sex act, the nature of medication.  And we’re asking that all these sort of things be taken into account.  But we’ll see what this court case comes out with. And I don’t know Arwel if you wanna respond to what I just said.  I may be mischaracterising the prosecution.

Arwel Jones:  No, you’re absolutely right.  We do need to look at all the different nuances and issues here. I would say though that prosecutors are well versed in carrying out those difficult balancing exercises across a whole different range of contexts.  For example, here we’re talking about public health versus criminal justice response. You know, child abuse cases require incredibly difficult decisions about the need for a prosecution response on the one hand with the potential ongoing harm to the child that would ensue from the prosecution taking place and that child having to be exposed to the whole process. So, you know, we are used to these difficult balancing exercises. But we certainly wouldn’t want to go down the road of just a nice, simple, prosecuting by numbers approach.  Well, if that factor’s there, that box is ticked and therefore we prosecute. But, in terms of the idea of simplicity, I suppose I just would throw something back to yourselves, which is just around, the threshold that you collectively set as to when a prosecution is appropriate.  And you’ve come out very clearly, saying intentional transmission is meritorious of prosecution; beneath that it’s not. It’s an approach that has a commendable simplicity but I’m not necessarily sure that again it takes into account all the whole range of behaviours that lie beneath that. I mean the concept of recklessness is… it’s a wide-ranging concept and embraces a whole range of different behaviours and conducts.  I mean, if I was to draw an analogy, you know, if you think about somebody who drinks, I don’t know, three or four glasses of wine and then goes and drives their car.  You know, they’re being reckless.  Now hopefully nothing will happen but they’re still exposing other people to risk.  This analogy might break down at some point but I’ll, but bear with me on this.  Somebody who drinks a bottle of whisky and then gets behind the wheel of a car is reaching a really high level of recklessness. So the point I suppose I’m trying to make, to translate here is that there are certain individuals in the field of sexually transmitted infections who cross a certain threshold of recklessness in the nature of their conduct, in the potential harm that they’re exposing others to as such that they are probably a bit closer to those who are intentional than those who are not blameworthy at all.  So I would just perhaps invite you to reflect a bit further on, you know, what sort of mindset are you looking for here.

Lisa Power:  I think you’ve just opened up another two-hour discussion Arwel. However, what I would say is, you’ll notice that some of the language earlier today was intentional or malicious which is part of that shifting around. And also I think that’s why some people find it easier to say, “No prosecutions at all,” because those are very shifting sands.  But actually you’ve picked on something which was a major issue for debate within the UNAIDS work around what is the barrier between intent and recklessness.  And you’re coming from a point of view of the English law where the barrier for intent is set about as high as the barrier for intent goes. If you were in South Africa, you’d have a very different definition of how far intention goes.  And so that’s another thing is whenever we’re using any of these terms, we’ve always got to remember the cultural context because intention in the UK is totally different from intention in South Africa and God knows in most of the American states they don’t care about intention at all.  You know, intention is absolutely almost anything. So I think we’ve gotta bear the cultural context in mind when we’re having these discussions and that’s why it’s so helpful actually to have the UN and UNAIDS actually being willing to thrash some of this out, and being willing to show leadership that makes our governments more likely to, because they’re not used to being scolded by UNAIDS or any organ of the UN. Now some of them may be a little contemptuous of that but actually I think that’s mainly because they’re like, “Oo, are we as bad as other people then?” So I just wanna thank you for keeping plugging at it.  And I think everybody who’s around here is, you know, everybody’s trying to do something about this. So we should all exchange as much information as we can and do what we can to mitigate harm in our own jurisdictions, and try and share what we learn with each other, whatever it may be –  the negative and the positive.  So thank you and thank you Susan.

 

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

Update: December 18th

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

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

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

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

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

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

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

The prosecution has until Friday to appeal the acquittal.

Original post: December 14th

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

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

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

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

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

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

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

Austria: HIV-positive Man Prosecuted for Safer Sex

Trial next Monday in Vienna

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

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

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

Threat to effective HIV-prevention

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

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

Double game played by the (Minister of) Justice?

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

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

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

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