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In reversing the conviction, the Court recognised that sexual HIV exposure risks should not be based on outdated beliefs or theoretical risks and must be specific to the individual acts and situations that are before the Court.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allow his initial guilty plea – which the Court accepted was due to being poorly advised by his initial lawyer – to be withdrawn.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The ruling came two weeks after Iowa’s Governor repealed the draconian HIV-specific law under which Mr Rhoades was convicted, replacing it with an infectious disease law that, amongst other significant improvements,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

UK: Court of Appeal upholds man’s conviction for recklessly passing on genital herpes during sex with ex-girlfriend

Today, the Court of Appeal upheld David Golding’s 2011 conviction for ‘recklessly’ infecting his ex-girfriend with genital herpes (HSV-2) during a brief relationship.  However, his original 14 month sentence was reduced to three months (as time served, Mr Golding was released on bail in September 2011 after spending six weeks in prison) because of the exceptional delay in bringing the case to appeal. “Accordingly,” wrote Lord Justice Treacy on behalf of fellow judges Mr Justice Bean and His Honour Judge Lakin, “notwithstanding our view as to the propriety of the initial sentence, we exercise our power to reduce that sentence in the light of what has occurred subsequently.”

The Court found that Mr Golding understood both that he had the infection and how it is transmitted, and by not preventing transmission – or disclosing his condition thereby allowing the complainant to make an informed decision whether or not she wanted to risk acquiring herpes – was guilty of reckless grievous bodily harm under Section 20 of the Offences Against The Person Act 1861.

Notably, the Court reaffirmed that in this case herpes was a “really serious bodily harm”, although it noted that in a future contested trial it would be up to a jury to consider whether the herpes infection was, indeed, really serious, on a case-by-case basis.

20. As to the impact of herpes, the evidence was that whilst it was not a life threatening condition, it is incurable. The initial infection is described as an unpleasant and painful acute illness with debilitating effects. On occasion admission to hospital may be required, (not in this case), and most affected people can return to work within a week or so. Episodes may recur throughout life. Generally when they do, they are milder and shorter in impact. Psychological disturbance is common in the immediate aftermath of the initial episode. HSV-2 has a higher recurrence rate than HSV-1.

62. ….The evidence of the painful symptoms, their effect at the time, their recurrence, and the prospect of their recurrence without effective cure for an indefinite period was in our judgment sufficient for a jury to consider that it amounted to really serious bodily harm.

During the Appeal, Mr Golding testified that he had not been given clear information that genital herpes might be transmtted even in the absence of a “flare up”. The Court did not believe Mr Golding, and because there were no medical notes regarding how he had been counselled (despite him testifying that he only received confirmation of his herpes diagnosis over the phone from a GUM receptionist and a general leaflet on STIs at his initial visit) and because both medical experts – Dr Kenneth Mutton (for the Crown) and Professor George Kinghorn (for the defence) –  said that “best practice” would be for a newly diagnosed person to be counselled about “the possibility of infectivity even when a person is asymptomatic” the Court found Mr Golding was, in fact, reckless.

22. The available medical notes were not specific as to advice provided to the appellant. According to Dr Mutton, he would have expected a full discussion to have taken place in April 2008 at the Genito-urinary Clinic following the guideline of the British Association for Sexual Health and HIV. This refers to condom use when lesions are present, the possibility of infectivity even when a person is asymptomatic, and disclosure of the condition to a partner.

23. Professor Kinghorn, in the absence of particular evidence as to the advice given to the appellant, thought that it was less likely that the appellant would have been told that he was infectious when no lesions were present. However, he conceded that since the turn of the century, the state of medical knowledge in this respect available to general practitioners had improved. He also acknowledged that a GP following best practice would have included advice about asymptomatic transfer.

This will have important future implications for the clinician-patient relationship, not only at GUM clinics, but also for GPs. It suggests that courts will assume this “best practice” has taken place – even if it hasn’t – and it will be hard for a future defendant to prove that he or she hadn’t been counselled in this way if there is nothing in their medical notes.

Given the public policy implications of this ruling, there may well be an application to appeal the case to the Supreme Court.

Unusually, it was the CPS that had initiated this appeal after seeing a report from Dr Mutton, produced after Mr Golding was sentenced (following an initial guilty plea) which raised the issue of whether genital herpes could be described as “really serious bodily harm” so as to come within Section 20. In the latest (unpublished) version of its legal guidance on prosecuting Intentional or Reckless Sexual Transmission of Infection it had suggested that genital herpes could be prosecuted under Section 47 of the OAPA 1961, actual bodily harm.

Mr Golding had been prepared to plead guilty under Section 47 in his original trial, but the judge had made it clear that he would only accept a plea (or a full trial) under Section 20. In effect, however, the Court of Appeal has dodged a bullet by avoiding a clear statement that sexual herpes transmission is always serious bodily harm.

As it stands, the reckless (or intentional) transmission of any sexually transmitted infection (whether or not it is considered to be objectively serious by, for example, BASHH or other medical experts) could be prosecuted in England & Wales and a jury will decide whether the infection is subjectively serious according to the testimony of the complainant and medical experts.

It should be recalled that the original draft of the CPS guidance, published in 2006, covered not only the intentional or reckless sexual transmission of HIV, but also chlamydia; genital herpes; gonorrhoea; hepatitis A, B and C; LGV (lymphogranuloma venereum); non-specific urethritis (NSU), and syphilis.

Back in 2007, in response to the draft, the Government’s Expert Advisory Group on AIDS (EAGA) noted that including so many non-serious STIs was “one of the most disturbing aspects of the document.” It conceded that “broadening the policy to cover other infections may be desirable to avoid stigmatising HIV,” but added that “there is a danger of confusion because of significant differences between the infections listed.” It questioned the CPS’s understanding of the nature of STIs, how they are transmitted and whether they actually cause any serious harm in pragmatic terms.

As an example it used the case of genital herpes, which “is simply a cold sore on the genitals, indeed half of all cases in the UK are thought to be caused by transmission of herpes from the mouth to the partner’s genitals during oral sex. It causes little serious physical harm and most people who contract it are not even psychologically disturbed by it in the longer term. Even given the definition in the document, it seems to defy common sense that this could constitute grievous bodily harm.”

EAGA added that HSV, the virus that causes genital herpes, is often passed from parent to child with a kiss on the cheek. “Why should it be grievous bodily harm to infect a partner with genital herpes through sex, but not when an adult infects a child by kissing their cheek, or another adult by kissing their mouth?”

It stressed that “the CPS needs to take the advice of experts regarding the seriousness of [STIs]. In the vast majority of cases, seeking to prosecute transmission would be an entirely disproportionate response.”

The Herpes Viruses Association (HVA) issued a press release following today’s verdict which stated that “we are appalled at the court’s failure to overturn the guilty verdict. Herpes virus transmission should not be in the legal arena at all.”

HVA charity director Marian Nicholson said: “This charity represents around forty million people in the UK who carry herpes simplex infections. Over half the cases of genital herpes are caused by the common facial cold sore type (HSV-1) usually by oral sex. The implications of the judgment are that any of them could be sent to prison if they transmit this infection to a partner.”

She said: “I am pleased that David Golding has not been sent back to prison – but this ruling is inappropriate. It is not in anyone’s interest to send people to prison for passing on such a common and usually unnoticed condition.”

She continued, “We should take responsibility for our own sexual health and not assume that a partner is infection-free. Many infections are caught from people who don’t know they have them so blaming someone else is pointless.”

 

R v Golding [2014] EWCA Crim 889

Canada: Supreme Court rules that unwanted pregnancy is a similar 'harm' to HIV

Men who sabotage condoms may turn an otherwise consensual act with a woman into sexual assault, and women who lie about using birth control have been left with some uncertainty about whether they, too, could face charges, under a Supreme Court ruling yesterday on deception before sex.

See also Court avoids making HIV prosecutions easier

The Supreme Court of Canada heeded the warnings of HIV groups in a narrow 4-3 judgment March 7.

The court upheld the conviction of Craig Hutchinson for aggravated sexual assault. Hutchinson poked holes in condoms he used with his girlfriend. He did this without her consent, hoping that she would become pregnant, which she did. There are parallels with HIV -ondisclosure cases, which also involve keeping information from someone before a sexual encounter.

The court had two legal routes available to it to convict. One route would have used the fraud provisions in the Criminal Code. This is essentially the same legal principle used in HIV-nondisclosure cases and requires both a dishonest act and some harm, or risk of harm. The majority of the Supreme Court endorsed this approach today.

The other route could have further crowbarred open HIV-nondisclosure prosecutions. A minority of judges at the Supreme Court would not have required any proof of harm in order to secure a conviction in Hutchinson’s case. This was also the reasoning of the majority of the Nova Scotia Court of Appeal.

The Canadian HIV/AIDS Legal Network and the HIV and AIDS Legal Clinic Ontario (HALCO) intervened last year to argue that the Court of Appeal’s approach would unfairly extend the criminal law to cases where there was no realistic risk of HIV transmission.

Chief Justice Beverley McLachlin agreed, saying that the court must act to protect the existing legal test and avoid “replac[ing] the clarity and restraint achieved by [HIV-nondisclosure] decisions with confusion and over-criminalization.”

This will likely seem insufficient for those who believe courts already go too far to criminalize the lives of HIV-positive people. But the court did accept the reasoning of HIV groups that intervened in the case — which it refused to do the last two times HIV nondisclosure was before the Supreme Court.

Cecile Kazatchkine, a lawyer at the Legal Network, says that the court avoided setting a bad precedent.

“This case doesn’t have any implications for people living with HIV,” Kazatchkine says. “There was a danger that it would, but it didn’t.”

“The Legal Network and HALCO have been really diligent; we decided to intervene, and put all of our energy into this case, even though it wasn’t an HIV case, to make sure the court didn’t reach a decision that makes things worse for people living with HIV.”

In December 2012, the Supreme Court released its decision in the HIV non-disclosure case of Mabior. Panned by HIV groups, a unanimous court required HIV positive people to inform their partners about their health status, unless they have both a low viral load and wear a condom.

In Mabior, the Crown asked the court to criminalize non-disclosure, regardless of whether there was any risk of transmission. That approach was rejected by the court at the time, and rejected again in the March 7 decision. Kazatchkine says that the decision will send a message to Crowns to stop trying to equate non-disclosure in all cases with sexual assault.

Kyle Kirkup, a doctoral student at the University of Toronto Faculty of Law, agrees.

“I think maybe this shows that Mabior is the high water mark of criminalization and that’s the message that the Supreme Court of Canada is trying to send, that the court is not willing to go further.

“If you adopted a broader definition of consent, the concern was that people with HIV would have to disclose in all kinds of situations where there is not a realistic possibility  of transmission, like oral sex and mutual masturbation.”

Nonetheless, the reaction to today’s decision is a far cry from years past, when HIV groups called for an end to criminal prosecutions altogether.

Kazatchkine admits that the Legal Network was in an awkward position when it argued for the court to uphold its earlier decision — a decision which the Legal Network publicly denounced at the time.

The case nonetheless may prove to be an important one in the development of the law of sexual assault. While Hutchinson may have opened the door to other non-HIV related fraud charges, the facts in the case were so unusual that it’s hard to know how broad the impact of the case will be, says Kirkup.

 

US: Will Donald Bogardus be the last person to be convicted under Iowa’s overly draconian HIV-specific law?

Earlier this month, Donald Bogardus, 42, was given the lightest-ever sentence for HIV non-disclosure in Iowa.  He had faced up to 25 years in prison but was given a suspended sentence with two to five years of probation. However, he will also have to register as a sex offender and will likely lose his job as a certified nursing assistant as a result.

Watch Donald tell his story to the SERO Project.

Donald, who was diagnosed in 2007, was arrested in 2009 for having consensual unprotected sex three times with a male partner (who remained HIV-negative) without disclosing that he was HIV positive.

He was charged under Iowa Code § 709C.1, which states: “a person commits criminal transmission of [HIV] if the person, knowing that the person’s [HIV] status is positive … [e]ngages in intimate contact with another person.” The statute defines “intimate contact” as “the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of [HIV].”

As recently as July 2013, the Eighth Circuit Court of Appeals ruled that Iowa’s HIV law was not unconstitutionally vague and upheld the conviction of Adam Musser, who was sentenced to 50 years for not disclosing his HIV-positive status to four women.

Donald was supported through this ordeal by fellow criminalisation survivor, Nick Rhoades, who used a condom, had an undetectable viral load and did not transmit HIV but was sentenced to 25 years by an Iowa court for not disclosing his HIV-positive status to his male partner.  Later reduced to a year served, he now must register as a sex offender for the rest of his life.

(Nick’s story has been covered sympathetically by mainstream news outlets, including CNN, and formed the basis of a major ProPublica investigation, published last December 1st.)

Last September, the Iowa Court of Appeals upheld Nick’s conviction, finding that because he did not use a condom during oral sex there was stll a chance of transmission.

However, Rhoades and his attorneys at Lambda Legal will have another opportunity to argue that the charge and conviction is not based on current science, and the case will soon be heard at the Iowa Supreme Court.

These three cases are the tip of the iceberg, however. There are only 2000 people living with diagnosed HIV in Iowa and yet

Between January 1999 and June 2011, 25 people were charged and 15 were convicted. In 2012, Iowans were paying for the prison sentences of eight Iowans because of this law.

This quote comes from one of two editorials published this week in Iowa newspapers that are supporting a change in the law. The Des Moines Register‘s editorial, entitled ‘Lawmakers should correct Iowa’s HIV mistake‘ begins

During an election year, Iowa lawmakers are reluctant to do anything that could be construed as remotely controversial. it should not be controversial for them to fix a mistake they made 15 years ago that is ruining the lives of innocent Iowans. Lawmakers and Gov. Terry Branstad should repeal a statute that criminalizes the actions of Iowans who are HIV-positive when they have harmed no one.

Meanwhile the Press-Citizen argues that there is ‘Still time to fix Iowa’s HIV law this session’. It covers both Nick’s appeal and the law reform process.

We can only hope the Iowa Supreme Court will be more inclined than the lower court to take new scientific evidence into consideration and move away from past rulings. But whatever the state Supreme Court decides, it’s time for state lawmakers to fix the law. At the very least, lawmakers need to clarify that both intention to transmit and actual transmission is needed for prosecution. They also should specify that the type of sex act, condom usage and the defendant’s viral load need to be taken into account for decisions on prosecution and sentencing. At best, they could repeal the misguided law completely.

These editorials are the result of extremely hard work undertaken by a broad coalition of local and national advocates, and were timed to coincide with yesterday’s “Day on the Hill” when HIV advocates in Iowa visited the Capitol in Des Moines to talk with State legislators about modernising Iowa’s HIV specific legislation.

According to Tami Haught, of CHAIN (the Community HIV/Hepatitis Advocates of Iowa Network) they were able to speak with half of all state Representatives and nearly two thirds of all Iowa Senators.  This may create the final push for law reform this legislative session (which ends in April).

Immediately following Donald Bogardus’ sentencing, according to the Waterloo Cedar Falls Courier

Sen. Steve Sodders, a Democrat from State Center, proposed changes to “modernize the draconian law.” The bill has been referred to the Senate Judiciary Committee, causing a ripple of Capitol support. “It’s important that we decriminalize some of the effects of this old law. It’s just outdated, and we have to keep up with modern medicine,” Sodders said.

Sen. Charles Schneider, a Republican from West Des Moines and ranking member on that committee, said GOP members in both chambers agree there should be changes to the law. “What I think we need to do is just educate people that the current penalty is more punitive than it needs to be for people who are treating effectively the transmittable disease that they have,” he said.

Attorney General Tom Miller, who supported changes to the law last year, reaffirmed his support this session. Miller said he’s “firmly convinced the statute needs to be changed” and that his office is working with lawmakers to update the statute.

The full text of Senate File 2086, which would create a new law, The Contagious or Infectious Disease Transmission Act, can be found here.

This is a summary what they are proposing.

The proposed Contagious or Infectious Disease Transmission Act would try people who transmit diseases like HIV, Hepatitis C and tuberculosis under the same statute.

It aims to delineate between someone with a criminal intent to infect and simply failing to disclose their status, taking into account whether an infected person used protection or is taking medications to limit the risk of transmission.

Under the new law, a person does not act with criminal intent necessary for a conviction simply by knowing their status and having sex.

Offenders who knew their status would get up to 10 years incarceration — a class C felony — for intentionally transmitting a disease. If they didn’t infect their partner, the sentence would drop to a class D felony or 5 years in prison.

If a person who knew their status and didn’t intend to infect their partner, but acted with a reckless disregard for their health, the violation becomes an aggravated misdemeanor.

The bill eliminates the requirement to register as a sex offender.

With a groundswell of support for modernisation, it seems very likely that Iowa will soon become the first state in the United States to achieve HIV criminalisation law reform.

Global Commission on HIV and the Law Jan 2014 newsletter highlights important legal and policy developments as well as new resources

We are pleased to share this first Newsletter Issue of 2014 containing several important developments. Perhaps most significantly, there have been a number of controversial recent anti-LGBT rulings and legislation around the world. In the same week in December, both Nigeria and Uganda adopted harsh new anti-LGBT related laws, which no doubt will have repercussions on the HIV response in those countries. Also, in December in response to the Supreme Court of India’s overruling of an earlier lower court decision to strike down an anti-sodomy law, effectively recriminalizing same sex behavior, former Commissioners of the Global Commission on HIV and the Law jointly issued a statement expressing dismay at the decision of the country’s top court. On a more positive note, in October Uzbekistan lifted all restrictions on entry, stay and residence for people living with HIV – see this UNAIDS infographic on current travel restrictions for PLHIV.

Several national and local level dialogues on HIV, human rights and the law were held in recent months, including in Brazil (November), China (December), Democratic Republic of Congo (November), and Dominican Republic (June). On 28-31 October, the first Eastern and Southern Africa Regional Judicial Dialogue on HIV and the Law was held in Nairobi. Also in October, UNDP and UNAIDS organized an information session on access to affordable medicines in Nay Pyi Taw, Myanmar, attended by more than 30 parliamentarians. Visit our recently updated interactive map for more information on efforts by UN agencies, including UNDP and UNAIDS, in partnership with governments, civil society and international donors, to support countries in creating enabling legal environments for HIV responses and advance the findings and recommendations of the Global Commission on HIV and the Law.

A number of key knowledge products were published this past quarter, such as: Judging the epidemic: A judicial handbook on HIV, human rights and the law (UNAIDS, 2014); Protecting the rights of key HIV-affected women and girls in health care settings: A legal scan (UNDP, SAARCLAW, WAP+, 2013); HIV and human rights manual for the Democratic Republic of the Congo (French) (UNDP, 2013); Young people and the Law in Asia and the Pacific: A review of laws and policies affecting young people’s access to sexual and reproductive health and HIV services (UNESCO, UNFPA, UNAIDS, UNDP, Youth Lead, 2013); and Compendium of Judgments for Judicial Dialogue on HIV, Human Rights and the Law in Eastern and Southern Africa (UNDP, 2013).

Switzerland: How effective HIV treatment has impacted upon the criminalisation of HIV exposure

The preventative effect on HIV transmission of being virally suppressed due to antiretroviral therapy (ART), as recognized by the Swiss Commission for HIV/AIDS in 2008, has helped to reduce the criminalization of HIV exposure in Switzerland. Since the Swiss statement’s release, there have been acquittals of two HIV exposure cases in 2009, no further prosecutions for HIV exposure and alterations to the law used in these cases, according to study results presented at EACS 2013 in Brussels, Belgium.

Although Switzerland is not the only country to criminalize HIV, the country did have one of the most severe HIV criminal legislation in Europe, together with Sweden and Austria. Swiss law had considered exposure to HIV, defined as sex without a condom between an HIV-infected individual and an HIV-uninfected individual, a criminal offense. This was the case even if the HIV-uninfected partner gave consent, there was no transmission or the HIV-infected partner did not know his or her status.

The criminal cases were based in two articles of the Swiss penal code: 122, which concerns serious bodily harm, and 231, which covers transmission of human diseases. The latter, despite supposedly being a public health measure, had only been invoked in cases of HIV exposure or transmission. From 1990 onward, this legal apparatus had resulted in more than 80 proceedings, with 48 prosecutions — over half of them due to exposure only, with no transmission having happened.

This scenario started changing in 2008, according to Deborah Glejser and Sascha Moore Boffi, from Groupe Sida Genève, a Swiss community-based HIV organization. Glejser performed a survey that reviewed criminal judgments in Swiss cantonal and federal courts, statements by stakeholders and policy makers and records of parliamentary sessions since 2009. Glejser states that the turning point for advocacy work against criminalization was the declaration issued by the Swiss Commission for HIV/AIDS (now known as the Swiss Commission for Sexual Health) in 2008.

The Swiss statement, as it became known, stated that “HIV-positive individuals on effective antiretroviral therapy who have had an undetectable viral load for at least six months and without sexually-transmitted infections are sexually non-infectious.” Due to the worldwide controversy created by the declaration, it was not immediately used in court, with Swiss prosecutors trying to have it removed from debates so as not to be used as a defense. Although there was international acknowledgement of the Swiss statement in 2009, advocacy groups did not wait for it, using policy briefs by UNAIDS to show that criminal laws against HIV transmission had no impact on the spreading of the virus or containment of the epidemic.

A breakthrough came in December 2008 in the case of an HIV-infected man who was condemned to a year and a half of prison by a Geneva court. The man knew he had an undetectable viral load and had sex with two consenting HIV-uninfected women. Although no transmission occurred, the two women sued the man, who appealed the sentence. Three months later, the court cleared him of the charges stating that he was undergoing ART at the time and had little chance to infect his partners. This was the first decision of its kind in Switzerland, but not the only one. A second acquittal happened in 2009. Since then, no further prosecutions have been carried out for HIV exposure when the HIV-infected partner was on effective ART.

For Glejser, these acquittals were a major step forward and set a legal precedent, leading to a significant decrease in the number of prosecutions after 2009. This was supported in later years by changes in legislation, such as the 2012 reformation of article 231, preventing prosecution when informed consent is given. With the new wording, the article will only be invoked for intentional or malicious transmission.

HIV exposure can still be prosecuted under article 122, but thanks to a 2013 ruling by the Swiss federal court (equivalent to the U.S. Supreme Court), HIV transmission is no longer considered serious bodily harm, falling under common assault and making it easier for defendants to use the Swiss statement for defense, as well as resulting in lesser sentences.

African HIV criminalisation achievements and challenges highlighted at ICASA 2013

The African continent has more countries with overly broad and vague HIV-specific laws relating to HIV non-disclosure, exposure and/or transmission than any other global region, nearly all of which have been enacted in the past decade.

Although North America is the continent with the most known prosecutions, 26 African countries have overly broad and/ or vague HIV-specific criminal laws with a further three countries considering new HIV-specific criminal laws. This is worrying and disappointing given the growing evidence base and consensus of international agencies that such laws are counterproductive to HIV prevention efforts and generally fail to deliver ‘justice’.

Although there are few known prosecutions the majority of those prosecuted have been women – who are usually the first in a couple to know their HIV status due to routine antenatal testing and who are often erroneously accused of bringing HIV into a relationship.

In addition, South Africa recently prosecuted alleged criminal HIV transmission as attempted murder despite no evidence of intent to harm. (Read the judgement from the High Court of South Africa on alleged HIV exposure being attempted murder here.)

However, there have been some positive legal changes brought about by local advocacy supported by international civil society and UN agencies. Since 2010, at least four countries – Congo, Guinea, Senegal and Togo – have revised their existing HIV-related legislation or adopted new legislation that restrict use of criminal law to cases of intentional transmission.

And more recently advocacy in Malawi and Nigeria has resulted in the removal of overly broad HIV-specific criminal statutes from draft omnibus HIV Bills.

View the poster below or download the A4 double-sided printable version of the poster here.

Advancing HIV Justice: Achievements and challenges in global advocacy against HIV criminalisation – African…

Sweden: Court of Appeal acquits ‘HIV exposure’ case, recognises National Board of Health and Welfare endorsement of ‘Swiss statement’, Minister for Social Affairs will consider reviewing application of law

Today, the Court of Appeal for Skåne and Blekinge has acquitted a man from Malmö previously convicted of exposing four women to HIV on the grounds that since he had a stable undetectable viral load on antiretrovirall treatment with no other STIs he could not cause danger to another person.

He had previously been sentenced to a year in prison and and fined 150,000 kronor (€17,000) by the lower court, but was released last week pending the appeal after the Court consulted experts from the Swedish Institute for Communicable Disease Control (SMI).

A press release from the Swedish Courts notes the following (unofficial translation)

The Court of Appeal, for its assessment of the probability of transmission by sexual intercourse, had access to information other than that which existed at the district court. The Court of Appeal has obtained an expert opinion from the Swedish Institute for Infectious Disease Control (SMI) regarding the risk of transmission of HIV through unprotected sexual intercourse. Furthermore, Professor Jan Albert of the Karolinska Institute, was consulted as an expert.

For expert opinion and data Jan Albert has said it can be clearly concluded that the risk of transmission of HIV in vaginal intercourse without a condom is very low, provided that the HIV-infected party is on stable HIV treatment. For an HIV-positive patient to be considered to be on stable HIV treatment, as is apparent from the opinion, it requires that the patient has a consistently high adherence to their medication, that at least two consecutive viral measurements with 3-6 month intervals show that patient’s virus levels in the blood were below the lowest detectable levels in routine testing, and the patient does not carry any other sexually transmitted infection .

The Court of Appeal noted in its judgment that the investigation did not show anything other than the accused was on stable HIV treatment during the time that the charges related to, and based on what the SMI and Jan Albert have said about risk of infection, assessing the likelihood that sexual intercourse to which the charges relate means that the risk of HIV transmission was so small that no real danger could be presupposed. Since this does not meet the required elements of the crime of creating danger to another, the indictment was dismissed.

Major policy shift

The ruling reflects a major shift in policy announced last week by the National Board of Health and Welfare (Socialstyrelsen).

In a press release entitled, ‘Effective treatment reduces the risk of infection by HIV’, the agency, which is part of the Swedish Ministry of Health and Social Affairs, clarified the treating physician and the individual’s responsibility under the Communicable Diseases Act – which creates a ‘disclosure obligation’ for anyone with an infectious disease.

The criteria to not be legally bound to disclose are very similar to those set out in January 2008 by the Swiss Federal AIDS Commission’s ‘Swiss statement’. They are, as follows:

For treatment of HIV infection to be considered well-functioning, patients must be highly adherent to antiretroviral treatment. Virus levels in the blood should be tested regularly, verified by two measurements between three to six months apart and the result should be virus levels below 50 copies per milliliter.

Follow-up tests should be performed two to four times a year. No other ongoing sexually transmitted disease should be suspected, as this could increase the risk of infection. When these criteria are met, the SMI estimates that infectivity is minimized in a person infected with HIV similar to wearing a condom during sexual intercourse.

HIV infection is one of the dangerous diseases included under the Communicable Diseases Act. The law states that the attending physician has the responsibility to advise people with dangerous diseases of appropriate conduct. It also says that if the person knows, or has reason to suspect, that he or she is carrying a contagious disease that person is obliged to protect others from infection.

The attending physician, when he or she takes a position on the conduct that the individual should have, should consider that a person with HIV infection who is on well functioning treatment is not required to inform their sexual partners about their infection…

People who have HIV infection, however, must act on their own initiative if there is a significant risk, for example if he or she also gets another sexually transmitted infection. This is true no matter what advice the person has previously received by their treating physician. A significant risk includes situations when someone risks coming into contact with his or her body fluids, for example during blood tests, at the dentists, or during sex with a risk of bleeding.

Coaltion of HIV experts

The National Board of Health and Welfare was itself influenced by a coalition of HIV experts. An editorial by Johan Carlson (Director of SMI), Anders Tegnell  (State epidemiologist, SMI), Jan Albert (Professor of Communicable Diseases, Karolinska Institute and Senior Physician at Karolinska University Hospital) and

Anders Sönnerborg (Professor of Clinical Virology,Karolinska Institut and Senior Physician at Karolinska University Hospital) entitled ‘HIV is no longer a life-threatening disease’, also published last week, heralded this new (for Sweden) paradigm.

Today, 21 October, SMI publishes along with Reference Group for Antiviral Therapy (RAV) a report summarising the state of knowledge with regard to the significant reduction in infectivity in treated HIV infection.

SMI and RAV estimates that the infectivity of a patient living with HIV and who have been stabilized on treatment is very low by sexual contact and minimal if a condom is used in vaginal and anal intercourse. This applies provided that there is no other sexually transmitted infections that can affect the risk of HIV transmission. It is therefore important to always use a condom, especially to protect against other sexually transmitted infections, but also to minimize any residual infectious risk for HIV.

This knowledge provides two important conclusions. Firstly, we improve the chances of early diagnosis and initiate treatment as early as possible…

The second conclusion is that current knowledge about HIV will have to influence society’s attitudes to and treatment of people living with HIV. Knowledge about HIV, how the virus is transmitted and what it means to live with HIV, need to be improved in the whole society. Especially within the health care and disease control work, but it is equally important in other areas of society, such as education and social services, the media and the judiciary.

Minister for Social Affairs will consider reviewing application of law

Göran Hägglund, Sweden’s Minister for Social Affairs reacted to the report by telling Sweden’s public broadcaster, SVT, that he will consider reviewing the application of law as it relates to HIV non-disclosure, exposure and transmission.

“If you have an illness that has the potential to infect, it is reasonable to disclose,” he said. “I just think that one would like to know in this situation. But the application of law is another question. Where it is possible to discuss how the law looks and applied, it may be time to consider a change.”

This policy shift is a major victory for the advocates who have been working tirelessly to change Sweden’s draconian attitude towards people living with HIV, notably the partnership of RFSU (the Swedish Association for Sexuality Education), HIV-Sweden and RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) who have been lobbying and campaigning to raise awareness and advocate against Sweden’s over-punitive HIV-related policies.

Hägglund also reacted to a recently-published editorial by Marielle Nakunzi, a lawyer at RFSU, which argued that the justice system has such an outdated view of HIV that it still lives in the 1980s.

“It is a matter of making sure that we always have laws that are in tune with the state of knowledge available,” he told SVT. “Therefore, we should always consider the knowledge we have. It’s about educating the justice system.”

GNP+ and the HIV Justice Network release ‘Advancing HIV Justice: a progress report of achievements and challenges in global advocacy against HIV criminalisation’

A new report released today by the Global Network of People Living with HIV (GNP+) and the HIV Justice Network highlights the tireless work of advocates around the world challenging inappropriate criminal laws and prosecutions for HIV non-disclosure, potential or perceived exposure and transmission.

Advancing HIV Justice shows that advocates around the working to repeal, modernise or otherwise limit laws and policies that inappropriately regulate and punish people living with HIV have achieved considerable success.  This is especially the case when policymakers or criminal justice system actors are open to learning more about scientific and medical advances in HIV prevention, treatment, care and support, and involve civil society – led by people living with HIV – to ensure that critical criminal law and human rights principles are followed.

“That is why we welcome the new, detailed guidance on limiting overly broad HIV criminalisation that was released last week by UNAIDS,” says Kevin Moody, International Coordinator and CEO of GNP+. “The guidance will help to continue advancing HIV justice, serving as a powerful new tool for people living with HIV, and those advocating on our behalf, in our work with policymakers and criminal justice system actors.”

Writing in the foreword, Susan Timberlake, Chief, Human Rights and Law Division, UNAIDS Secretariat, notes that Advancing HIV Justice “powerfully demonstrates that civil society advocacy on this issue is not only alive – it goes from strength to strength.”

In the 18-month period covered by the report (September 2011 to March 2013), significant advances were made in terms of:

  • building the global evidence base in order to better understand the ‘who, what, where, when and why’ of laws and prosecutions around the world;
  • generating persuasive social science that shows exactly why overly broad HIV criminalisation does more harm than good, often achieving exactly the opposite of what law- and policymakers intend in terms of public health and human rights;
  • challenging inappropriate or overly broad new laws in Africa, Asia, the Caribbean, Latin America and the United States;
  • advocating for law reform in Europe and the United States, including successful repeal in Denmark and modernisation of one of Switzerland’s two laws used to prosecute potential or perceived HIV exposure; and
  • addressing legal processes and enforcement, including the creation of prosecutorial guidelines in Scotland.

However, the report also highlights that the road to law and policy reform is not always straightforward or easy, due not only to complex intersections of laws, policies and practices, but also because of each country’s unique social, epidemiological and cultural contexts.

“Despite the many incremental successes of the past 18 months, more work and more funding is required to strengthen advocacy capacity,” says the HIV Justice Network’s co-ordinator, Edwin J Bernard, who co-authored the report with Sally Cameron. “HIV criminalisation is a complex issue. It entails a detailed understanding of diverse aspects of the criminal justice system; collection and analysis of evidence of the scope and impact of prosecutions across local and national boundaries; articulation and argument about complex moral and ethical issues of trust, blame and responsibility; and inclusion of HIV prevention and human rights priorities. Development of strategies against HIV criminalisation relevant to each individual jurisdiction requires time, effort, and the involvement of multidisciplinary experts.”

Advancing HIV Justice: A progress report of achievements and challenges in global advocacy against HIV criminalisation is available as a 52 page pdf that can be read or downloaded at: http://www.advancing.hivjustice.net

Switzerland: Swiss Federal Supreme Court rules that criminal HIV exposure or transmission is no longer necessarily a serious assault

The Swiss Federal Supreme Court has ruled that HIV infection may no longer be automatically considered a serious assault, due to improved outcomes in life-expectancy on antiretroviral therapy.

A news article on the ruling, featuring Groupe sida Genève‘s spokesperson, Deborah Glejser, appeared (in French) in yesterday’s Le Temps.

Case 6B_337/2012 was heard on 19th March 2013 and published on Wednesday.  This note, written by Sascha Moore of Groupe sida Genève, explains the ruling in detail.

In a recent ruling, the Swiss Federal Supreme Court revisited its long standing jurisprudence on the severity of an HIV infection. Since 1999 (BGE 116 IV 125), any transmission or attempted transmission of HIV has been deemed to inflict or attempt to inflict severe harm and qualifies thus as an offence under article 122 of the Swiss Criminal Code relating to serious assault.

The appellant had appealed his conviction by the Superior Court of the Canton of Zurich under both article 122 and article 231 of the criminal code pertaining to transmission of human diseases for transmitting HIV to a sexual partner. The Superior court had imposed a 30 month partially suspended custodial sentence.

In the third part of his appeal, the appellant objected to the qualification of transmission of HIV as a serious injury on the grounds that, although still an incurable chronic medical condition, HIV infection is well managed thanks to current medical treatment. Life expectancy of individuals living with HIV is now nearly equal to those of persons not infected and as a result of this progress transmission should only qualify as common assault under article 123 of the criminal code.

The Federal Court agreed with the appellant to the extent that recent scientific progress and current treatment options lead to the conclusion that HIV infection does not necessarily constitute a serious threat to life. The Court nevertheless held that HIV infection still causes complex and life-long physiological and psychological changes which in some cases may lead to serious or even life threatening harm.

The ruling in effect overruled the Federal Court’s own jurisprudence that held that HIV infection is a serious injury that qualifies as serious assault and allows a finding of serious assault only if the facts of the case warrant. It thus imposes a duty on lower courts to determine in every case brought before them whether the transmission or attempted transmission qualifies as common assault under article 123 or rather as serious assault under article 122 of the criminal code.

Serious assault is punishable with a custodial sentence not exceeding 10 years, whereas the maximum sentence for common assault is 3 years. The courts reversal will certainly limit some sentences to the maximum of 3 years for common assault whereas the average sentence for HIV transmission or attempted transmission had previously varied from 2 to 4 years in cases where 122 and 231 were applied concurrently.

As opposed to serious assault which is prosecuted ex officio (without complaint), common assault is prosecuted ex officio only for those exceptions provided in paragraph 2 of article 123 that cover use of poison or weapons, assault on persons in the care of the accused or unable to defend themselves and finally assault on spouses, registered partners or cohabitating partners.

The Federal Court rejected the appellant’s other contentions that the lower court had arbitrarily rejected the appellant’s defence invoking the victim’s consent to unprotected sexual relations as well as that the Court had erred in determining that the appellant was indeed the person who infected the victim. The Court did not follow the appellant’s argument there was sufficient doubt as to the victim’s testimony to benefit the accused.

The case is remanded to the Superior Court for a fresh determination whether the conduct in question may be qualified as common or serious assault.