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Denmark: Man convicted in 2007 under now suspended law acquitted; further cases to be reviewed
A court in Denmark has acquitted a person living with HIV who had previously been found guilty under the country’s now-suspended HIV-specific criminal statute. The man’s sentence was reduced to six months, due to his conviction for other, drug-related, offences.
In its brief ruling, published below, the Eastern High Court reasoned that since there is now evidence that HIV is not a “life-threatening condition” he could no longer be guilty of exposing another to a “life-threatening illness”.
The Danish Justice Minister suspended the law in February 2011 noting that HIV can no longer be considered life threatening because, for people living with HIV in Denmark who are on treatment, HIV has become a manageable, chronic health condition.
According to sources in Denmark, it is believed that the courts are in the process of reviewing all HIV-related criminal cases from 2007 – this is the year that National Board of Health informed the Ministry of Justice that HIV was no longer a life threating illness (as defined in the law), even though it took the Ministry another four years to suspend the law.
This would make Denmark the first country in the world to fulfill the fifth recommendation relating to HIV criminalisation of the Global Commission on HIV and the Law.
2.5. The convictions of those who have been successfully prosecuted for HIV exposure, non-disclosure and transmission must be reviewed. Such convictions must be set aside or the accused immediately released from prison with pardons or similar actions to ensure that these charges do not remain on criminal or sex offender records.
Denmark: Eastern High Court Prosecutor v. Jackie Madsen,7 August 2012
Eastern High Court Prosecutor v. Jackie Madsen, 7 August 2012 (unofficial translation).
Denmark: Eastern High Court Prosecutor v. Jackie Madsen,7 August 2012
Transcript the Eastern High Court book of judgments
Verdict
Delivered on August 7th 2012 by the Eastern High Court’s 13th department
(country judges (names) with lay assessors)
…
Prosecutor v. Jackie Madsen
…
(Lawyer (Name)… )
Frederiksberg Legal verdict December 20th 2007 (…) is being appealed by the prosecution based on claim of acquittal of violation of Penal Code § 252 paragraph 2 (issue 2) and appeasement
Defendant has alleged alleviating circumstances.
High Court’s reasoning and result
Since HIV could not, at the time of the crime is crime, be considered a life-threatening illness according to the Penal Code § 252, paragraph 2, the defendant is acquitted for issue 1 in accordance with the prosecution’s claim on this matter.
As a result of this, the sentence is reduced to 6 months of imprisonment. In the decision of the sentence, the court has taken into account (put weight on) the amount of heroin and that the accused himself was a drug addict.
Moreover, the verdict is confirmed.
It is thus decided:
The District Court’s judgment in the case against Jackie Madsen is altered so that he is punished by imprisonment for 6 months.
The Treasury must pay the costs of the High Court.
(Sign.)
The accuracy of the transcript is confirmed. Eastern High Court…
US: New York Court of Appeals Says HIV+ Man’s Saliva Is Not a “Dangerous Instrument” (Press Release)
New York Court of Appeals Says HIV+ Man’s Saliva Is Not a “Dangerous Instrument”
Punishing People on the Basis of Physical Attributes Would Create “Sliding Scale of Criminal Liability”
New York, June 7, 2012 – Legal and public health experts are applauding the New York Court of Appeals, decision today to vacate the 2006 conviction and sentencing of David Plunkett, an HIV-positive man, for aggravated assault for biting a police officer. The state prosecutor argued that Plunkett had used his saliva as a “dangerous instrument” when he allegedly bit a police officer during an altercation involving several police who were restraining him following an outburst in a medical facility. Plunkett currently is serving a 10-year prison term in Sing Sing.
New York’s highest court vacated Mr. Plunkett’s conviction and dismissed the aggravated assault complaint against him on the basis that his saliva, or any body fluid or part, cannot be treated as “dangerous instruments” and a basis for charging someone with aggravated assault under New York law.
In a 1999 decision, The NY Court of Appeals had ruled that a person’s teeth cannot be characterized as a dangerous weapon, or “instruments” under the terms of the law, as an element of an assuault charge. The prosecutor and lower court attempted to get around this by stating that the “dangerous instrument” in the indictment was in fact the defendant’s saliva, which was “readily capable of causing death or other serious physical injury.”
In its ruling, the Court “sought not simply to reach a textually and historically correct understanding of what the Legislature meant” the law to include, but also to avoid the injustices that “would result if criminal liability varied with the corporeal attributes of assailants and their victims.” This interpretation would make an individual’s health, disability or even physical characteristics relevant to a determination of the ability to do harm, resulting in a “sliding scale of criminal liability,” the Court concluded.
The ruling is particularly important because it makes clear that a person’s health status, disability or other physical attributes should never be the basis for increased charges or sentencing.
Medical and public health experts long-ago dismissed the risk of HIV transmission through spitting or biting as near-zero, too small even to be measured.
“HIV is not a particularly easy virus to transmit, and it is virtually impossible for it to be transmitted through biting,” explained Terrance Moore,Director, Policy and Health Equity at the National Alliance of State and Territorial AIDS Directors (NASTAD). “However, it is important that we realize that treating HIV or any disease as something that should be the basis of criminal charges, absent actual harm, is terrible for public health efforts. The Court’s implicit recognition of the injustice of basing liability on health status is a huge boon for our work.”
The Plunkett case is one of hundreds across the country where HIV-positive individuals face criminal charges and long sentences on the basis of their HIV status for no-risk conduct and consensual adult sex. Members of the Positive Justice Project, a national group challenging the medical, legal and ethical support for such laws, object to the gross scientific mischaracterizations reflected in HIV-specific criminal laws and prosecutions as “flying in the face of national efforts to get people with HIV tested and into treatment.”
“The decision has important implications for cases where people with HIV essentially are being charged and imprisoned on the basis of their health status rather than any intent to do harm,” said Catherine Hanssens, Executive Director of the Center for HIV Law and Policy (CHLP). “The Court of Appeals has gone beyond the issue of transmission risk to say that relying on disability or health status at all is an unfounded and unjust application of aggravated assault statutes.”
Dr. Jeff Birnbaum, Executive Director of the Health and Education Alternatives for Teens (HEAT) Program and the Family, Adolescent and Children’s Experience at SUNY (FACES) Network added, “I have to battle the type of stigma reflected in the prosecutor’s point of view all the time. I treat young people who are being told on one hand that HIV is something they can manage, that it doesn’t make them a pariah, and on the other that their spit and blood are lethal weapons and that they are dangerous to be around. The prosecutors bringing these cases make my job so much harder. Today’s decision is really good news.”
Dozens of U.S states and territories have laws that criminalize HIV non-disclosure and “exposure,” such as through spitting or biting. Sentences imposed on people convicted of HIV-specific offenses have ranged as high as 50 years, with many getting decades-long sentences despite lack of evidence that HIV exposure, let alone transmission, even occurred. A growing number of defendants are also being required to register as sex offenders.
In New York, prosecutors have used the general criminal law to pursue people with HIV charged with HIV transmission or exposure, resulting in long prison terms despite a lack of proof that the individual charged even was the source of a partner’s infection, and even when no transmission occurs.
David Plunkett was represented by Audrey Baron Dunning. Lambda Legal submitted an amicus brief joined by the the American Academy of HIV Medicine, the Association of Nurses in AIDS Care, the Center for HIV Law and Policy, and the HIV Medical Association
###
The Positive Justice Project (PJP) is the first coordinated national effort to address HIV criminalization in the United States, and is coordinated by the Center for HIV Law and Policy. For more information on PJP and HIV criminalization, go to http://www.hivlawandpolicy.org/public/initiatives/positivejusticeproject.
New Zealand: Court of Appeal rules HIV non-disclosure is sexual assault
Update(s): 12/13th March 2012
The New Zealand Court of Appeal has ruled that otherwise consensual unprotected sex without disclosure of known HIV-positive vitiates consent, meaning that potential HIV exposure (non-disclosure without transmission) could well be upgraded from criminal nuisance to sexual assault in future criminal cases.
The ruling is the result of a long-running civil liability compensation suit from the female complainant in a 2005 New Zealand case. See my original post from 2009, below, for details of the case.
Although the ruling relates to a civil suit and not the criminal law, it provides “a really good steer” for police, prosecutors and judges to use the ruling in future criminal cases, according to the New Zealand Law Society’s Jonathan Krebs, interviewed on Radio New Zealand about the case.
The ruling was reported today in The Dominion Post, and on TVNZ.
However, only Radio New Zealand’s website reported the reaction of the New Zealand AIDS Foundation to this precedent-setting ruling that could mean that in the future HIV non-disclosure may be punishable by up to 20 years in prison.
The Aids Foundation says that a Court of Appeal ruling that says people with HIV could be charged with rape if they do not tell a sexual partner about their disease, is over the top.
In a precedent setting decision on Monday the Court of Appeal in Wellington ruled people with HIV could be charged with rape if they do not tell a willing sexual partner about their disease.
However, The Aids Foundation’s executive director Sean Robinson says the law is adequate in dealing with people who did not disclose their disease.
Original post: 14th July 2009
The New Zealand Court of Appeal is to hear a civil liability case from the female complainant in a 2005 New Zealand HIV exposure case that has the potential to change the law and make HIV non-disclosure a more serious crime. The case centres around whether unprotected sex without disclosure vitiates consent, as it does in Canada. If it does, then HIV exposure (non-disclosure without transmission) could be upgraded from criminal nuisance to sexual assault.
According to a story from the NZ Press Association, the woman has been trying to get compensation for years following the ‘distress’ of having had unprotected sex with an HIV-positive man for four months. The woman did not test HIV-positive.
She was in Wellington High Court last week to ask whether she could appeal an earlier High Court decision upholding a previous District Court decision that agreed that the Accident Compensation Corporation’s (ACC, the NZ Government’s accident and injury compensation board) decision to refuse payment for mental injury was correct.
The woman behind this appeal was known as “Shannon” during the first (2004-2005) court case against 35 year-old Justin Dalley.
Although a second complaint led to the groundbreaking ruling that non-disclosure with condom use was not required in New Zealand, in this case Mr Dalley pleaded guilty to the charges of criminal nuisance for having unprotected sex with “Shannon” for four months without disclosing his HIV status.
He was sentenced to “300 hours’ community work, six months’ supervision and… [NZ]$100 reparation to [“Shannon”] to cover her counselling costs and expenses.”
Mental injury caused by criminal nuisance is not covered under the Injury Prevention, Rehabilitation, and Compensation Act (which governs ACC payouts), but “Shannon” and her lawyers are pushing the boundaries of civil and criminal law by claiming “that the man’s offending was also a criminal act of a kind that was covered by the IPRC Act, such as sexual violation or indecent assault.”
Lawyers for the woman accepted that the district court was bound by an earlier decision, CLM v ACC, though that case never went as far as the Court of Appeal. The judge said that in that case, which dealt with similar issues, the High Court had ruled that it was not a criminal act of the kind contemplated because those acts required lack of consent. “In that case, as in the present, the sexual intercourse was consensual[, said Justice Jill Mallon]. The High Court concluded that under New Zealand law, as it presently stood, the non-disclosure by the man that he was HIV positive did not vitiate the woman’s consent.” The High Court judge said at the time that any change to the law in this respect was a matter for Parliament.
By allowing the appeal, Justice Mallon has also allowed for the possibility that HIV non-disclosure may become a more serious crime in New Zealand if the Court of Appeal rules in her favour. This appears to be “Shannon”‘s ultimate goal. An article from TVNZ.com at the time of Dalley’s 2004 arrest in what would become the condom ruling case highlighted that “Shannon” was trying to get NZ law changed to require HIV disclosure regardless of condom use.
Dalley’s ex-girlfriend “Shannon” has been fighting for a law change so anyone with HIV has to disclose their status whether they practise safe sex or not. “I don’t think anyone’s got the right to decide to put someone else’s life at risk and I think it’s only fair that somebody should know all the details,” she says.
Later, in an article published in the New Zealand Herald at the time of Dalley’s 2005 sentencing, “Shannon” was said to be angered by the non-custodial sentence.
The woman, known only as “Shannon”, said the judge’s decision had sent a strong message to every HIV-positive person that Dalley’s behaviour was acceptable. “I was willing to accept home detention but not this.” She said she had been unable to work during the nine-month case and had lost about $30,000 in wages. Judge Behrens said the woman had discovered Dalley’s condition after receiving a letter from someone who knew him. She was traumatised, lost her job and was unable to face friends.
Interestingly, the article also reveals that following the discovery that her partner was HIV-positive, she “had lied to Dalley and his family, telling them she was HIV-positive.” It was that, along with Dalley’s early guilty plea, which had resulted in his lenient sentence.
Given the hysteria surrounding the current ‘HIV predator’ case, which has included calls for public health and privacy law reform, it is entirely possible that the Court of Appeal might be more willing to reconsider whether non-disclosure of HIV status deserves to be upgraded to a more serious ‘crime’.
Canada: British Columbia man guilty again following retrial (update)
Update August 24th 2010
Adrian Nduwayo, has been found guilty again of five charges of aggravated sexual assault involving five women, three of whom subsequently tested HIV-positive, following a retrial at the BC Supreme Court.
He was oringally guilty of the same charges, plus one of attempted aggravated sexual assault and one of sexual assault in 2005 and sentenced in 2006 to 15 years in prison. This time, he was acquitted of those two other charges.
Details of the reasons for the original appeal are in my original post, below.
According to the report in Vancouver’s mid-market tabloid, The Province, the retrial hinged on the issue of lack of consent due to non-disclosure.
Justice James Williams said that, although the sexual relations were “ostensibly consensual,” that consent was taken away when Nduwayo failed to tell the women that he was HIV positive. “The issue of consent is not as simple as yes or no,” Williams said. “It’s more complicated than that.” In the five cases where Nduwayo was convicted, Williams said he believed that each woman would not have had sex with Nduwayo if they had known about his HIV. He was also satisfied that their lives were endangered by Nduwayo’s actions.
In the reports of the original trial, below, Mr Nduwayo testified he always used condoms and didn’t need to disclose. The complainants said that he didn’t always use condoms. It is unclear whether Justice Williams considered the issue of condom use as reducing the risk of HIV transmission to below Cuerrier’s threshold ‘significant risk’. If not, there’s may well be further confusion regarding condom use and obligations to disclose in Canada that can only be satisfied with the production of police and prosecutorial guidance.
Sentencing submissions will take place on September 10.
Original post June 23rd 2008
An HIV-positive British Columbia man who was found guilty in 2005 on five counts of aggravated sexual assault (for HIV exposure), one of attempted aggravated sexual assault and one of sexual assault, and sentenced in 2006 to 15 years in prison, has won an appeal against his original trial and will be retried.
According to the report in the Bugle-Observer, Adrian Nduwayo’s lawyer successfully argued that the jury was not properly instructed to consider each count separately and not to use evidence from one count when deciding guilt on others, compromising his right to a fair trial.
I have also reprinted a couple of articles published at the time of Mr Nduwayo’s original guilty verdict and sentencing, for background, below. Interestingly, although three of the complainants subsequently tested HIV-positive, Mr Nduwayo was not tried for criminal HIV transmission – and it’s not clear from the reports why that was the case.
Appeal court orders new trial for HIV-positive B.C. man convicted of sex assaults
Wednesday June 18th, 2008
THE CANADIAN PRESSVANCOUVER – The B.C. Court of Appeal has ordered a new trial for an HIV-positive man who was convicted of sexually assaulting several women for having unprotected sex with them.
Adrian Nduwayo was given a 15-year sentence in 2005 for five counts of aggravated sexual assault, one of attempted aggravated sexual assault and one of sexual assault.
The incidents involved seven different women who said Nduwayo had sex with them without telling them he was HIV-positive and without a condom, while he insisted he did use protection.
But Nduwayo appealed his convictions, arguing that the jury was not properly instructed to consider each count separately and not use evidence from one count when deciding guilt on others.
The court of appeal agreed, saying the trial judge’s charge to the jury didn’t include adequate cautions on that issue.
The court says the fairness of the trail was compromised and has ordered a new trial.
Jury finds B.C. man guilty of spreading HIV
Wed. Dec. 14 2005CTV.ca News StaffAn HIV-positive B.C. man was found guilty Tuesday night of committing sex crimes for having unprotected sex with women to whom he did not reveal his condition.
A jury in Westminster, B.C. convicted Adrien Nduwayo, 36, of five counts of aggravated sexual assault, one count of attempted aggravated sexual assault and one count of sexual assault.
“The message this sends I think is when you are HIV-positive you have a positive duty to disclose that fact to any perspective partners that you have,” Crown counsel Andrew MacDonald said, minutes after the verdict was released.
He said that all of the women who testified against their former lover showed “tremendous amounts of courage and fortitude.”
The charges relate to Nduwayo’s failure to disclose his virus and engage in unprotected sex with seven women between 2000 and 2003.
Three of those women now have HIV, the virus that causes AIDS.
During the trial, court heard that Nduwayo carried on affairs, and slept with more than one woman at the same time.
Nduwayo contends he always wore condoms to protect his sexual partners and that he didn’t have a legal obligation to disclose his condition to his partners.
But some of his former lovers said they had to insist that he wear them — and that even then he often did not.
Defence lawyer Paul McMurray said outside the court that Nduwayo’s defence was that all of his sexual partners in question were willing partners and that the fact he used a condom was sufficient in law to maintain their consent.
Nduwayo has said he didn’t tell some of his lovers that he was HIV-positive because they didn’t ask.
Some of them found out about Nduwayo’s condition when they saw news reports that the police were looking for him for allegedly spreading the virus, court heard.
“I think we’re dealing with an area where there was, and is, some uncertainty,” McMurray said outside court.
“Everybody I think accepts that you’re supposed to disclose and you’re supposed to wear condoms but this falls short of that and that’s the difficulty here.”
No date has been set for a sentencing hearing.
B.C. man sentenced to 15 years for spreading HIV
Fri. Mar. 3 2006CTV.ca News StaffAn HIV-positive man was sentenced to 15 years in prison for having unprotected sex with seven women to whom he did not reveal his condition.
Before he was sentenced in B.C. Supreme Court in New Westminster, Nduwayo was permitted to address the court.
When he stood up, he went on a lengthy tirade — speaking directly to his accusers and reducing some to tears.
“I feel very bad for these girlfriends who were infected. I did not mean to infect them,” Nduwayo said.
Later, he added: “One day I will prove my innocence.”
Justice John Truscott sentenced Nduwayo to 15 years after deducting two years for time already served.
In December, Nduwayo was found guilty of five counts of aggravated sexual assault, one count of attempted aggravated sexual assault and one count of sexual assault.
“The combined effect of the number of counts that we were dealing with in this case, resulted in the sentence being longer than any others that have been previously been imposed,” Crown counsel Andrew MacDonald told CTV Vancouver.
Nduwayo was accused of deceiving sexual partners about his HIV status and deliberately engaging in unprotected sex between 2000 and 2003. Three of those women now have HIV, the virus that causes AIDS.
“Clearly the complainants who have been infected with the HIV virus have had a serious and devastating toll taken on their lives,” MacDonald said.
During the trial, court heard that Nduwayo carried on affairs, and slept with more than one woman at the same time.
Nduwayo contends he always wore condoms to protect his sexual partners and that he didn’t have a legal obligation to disclose his condition to his partners.
But some of his former lovers said they had to insist that he wear them — and that even then he often did not.
Meanwhile, some AIDS groups argue that cases like Nduwayo’s should not be criminalized.
“We feel that criminalization has the potential to deter people from testing,” said Wayne Campbell, with the British Columbia Persons with AIDS Society. “We encourage people to get tested, every sexually active adult, should be tested every six months.”
With a report from CTV Vancouver’s Michele Brunoro
France: Appeal court upholds three year sentence for HIV transmission
The Court of Appeal in Aix-en-Provence has upheld the three year sentence handed down by a Marseille Criminal Court in June 2008 to a man who pleaded guilty to “administering a harmful substance causing disability or permanent disability” after having been accused of sexually transmitting HIV without disclosing his status to his former girlfriend.
Although the story was covered by several newspapers in France, none make it clear why there was an appeal when the man had pleaded guilty. His original sentence – three years, with a minimum of two years in prison – was upheld during the appeal but he now must serve all three years. If the appeal was called by the man’s lawyer, then it has backfired somewhat.
However, one of the articles, from AFP, mentions that the complainant
avait déposé plainte pour “tentative d’homicide involontaire” et “mise en danger d’autrui” (had filed a complaint for “attempted manslaughter” and “endangering others.”)
Perhaps it was the prosecution who had appealed. According to the report in Le Figaro
Le procureur avait lancé au mis en cause, lors du premier procès: “Vous êtes un salaud!”. (The prosecutor had launched into the respondant at the first trial: “You are a bastard!”.)
The report with the most details of the case appeared in Le Provence. Highlights in French (with rough English translation) below.
Gilles, 42 ans, ancien toxicomane, et Laurence, 41ans, avaient entretenu, en 1998 et 1999, une relation amoureuse durant près de dix mois. (Gilles, 42, a former drug addict, and Laurence, 41, had been in relationship for almost ten months between 1998-1999).
En avril 1999, la jeune femme apprenait tout à la fois sa contamination par le VIH et que toute la famille de son compagnon savait qu’il était séropositif depuis six ans et suivait un traitement. (In April 1999, the young woman learned she had been infected with HIV and that the entire family of her partner knew he had HIV for six years and was receiving treatment.)
Avant d’abandonner l’usage des préservatifs, Laurence avait pourtant demandé à son ami s’il avait récemment pratiqué un test VIH. Ce à quoi, il avait répondu par l’affirmative et qu’il n’y avait aucun problème. (Before abandoning condoms, Laurence had asked her partner if he had recently performed an HIV test. To which he replied in the affirmative and that there was no problem.)
Évoquant des regrets, présentant des excuses, Gilles a expliqué son attitude par son “inconscience” , par le fait qu’il traversait à l’époque “une période critique” . “Je me cachais la maladie à moi-même, je n’arrivais pas à me l’avouer, à y faire face”. (Full of regret, apologizing, Gilles explained his attitude by his “unconscious” by the fact that he was crossing at the time a “critical period”. “I hid the disease from myself, I couldn’t admit it to myself in order to cope.“)
Cependant, l’instruction avait démontré qu’il se soignait en prenant ses trithérapies au domicile de sa mère. “Il a cru qu’il suffisait de ne plus penser à la maladie pour qu’elle n’existe plus” , avait expliqué son défenseur Me Gérard Bismuth, selon lequel on pouvait le considérer comme “responsable mais pas coupable”. (However, investigation showed that he had treated himself by taking his triple therapies in the home of his mother. “He thought it sufficient to stop thinking about the disease so that it no longer exists,” explained his defender Gérard Bismuth, that it could be considered “responsible but not guilty”. )
À la barre, Gilles avait répété ne jamais avoir eu l’intention de transmettre le virus. “Je ne voulais pas nuire à la santé de Laurence, je regrette d’avoir été imprudent”. (At the bar, Gilles repeated that never intended to transmit the virus. “I did not want to harm the health of Laurence, I regret having been imprudent.)
[…]
Pour Jean-Pierre Binon, avocat de la victime, “la peine est sévère mais semble-t-il juste. Elle reconnaît Laurence comme une victime ce qui va lui permettre de passer à autre chose, de refaire sa vie en espérant qu’il n’y ait pas de maladies opportunistes, de cancers dont le risque est augmenté par la maladie. C’est sans aucun sentiment de vengeance qu’elle a agi et qu’elle tourne aujourd’hui la page judiciaire”. (Jean-Pierre Binon, the victim’s lawyer [says], “the punishment is severe but seems right. It recognises Laurence as a victim which will enable her to move on, to rebuild her life in the hope that there are no opportunistic diseases or cancers whose risk is increased by the disease. This is not been about revenge and now the legal battle is over.”)
Switzerland: Federal Court confirms Geneva HIV exposure acquittal, but does not mention viral load (updated)
UPDATE July 8th 2009
The Federal Court has now confirmed the recent HIV exposure acquital in Geneva, but shied away from explicitly discussing the link between an undetectable viral load and risk of transmission. In effect: they lacked the courage to change HIV exposure law throughout Switzerland.
According to AIDS Geneva’s Deborah Glejser, the Federal Court upheld the Geneva court’s finding that HIV exposure charges were no longer possible because the two female complainants were not exposed to HIV, but they did not actually discuss why this was the case (i.e. because the defendent was on effective treatment).
A brief report (in French) on 20minutes online, notes that the Federal Court emphasized that the women were not infected with HIV during unprotected sex and accordingly are not considered by the criminal courts to be victims. They could have sued for psychological harm in the civil court, but didn’t, and so “in the absence of such a request, their action can only be ruled inadmissible.”
Deborah Glejser tells me that she is extremely disappointed in the Federal Court since this was “a great opportunity missed.” Although HIV exposure remains no crime in Geneva, it will now be down to individual cases – and prosecutors as forward-thinking as Yves Bertossa – to change the law in Switzerland’s 25 other cantons.
ORIGINAL POSTING July 1st 2009
Video and reports (in French) are now available following the May 18th meeting convened by Group SIDA Geneve (AIDS Geneva) featuring a discussion between Professor Pietro Vernazza, President of the Swiss Federal AIDS Commission (which produced the January 2008 ‘Swiss statement’ on infectiousness) and Yves Bertossa, Geneva’s deputy public prosecutor, (who pushed for the recent HIV exposure acquital in Geneva), moderated by AIDS Geneva’s Deborah Glejser.
The meeting highlighted the importance of the Geneva court’s ruling that an HIV-positive person on successful treatment, with an undetectable viral load, and no other STI, could not possibly be guilty of exposing another person to HIV if they had not disclosed their status before having unprotected sex.
The Geneva judgement has now been appealed by the complainant which means it will now be heard by the Federal Court, Switzerland’s highest court. Mr Bertossa appeared confident that the Federal Court would confirm the acquittal, making the ruling relevant throughout Switzerland (and possibly providing more legal ammunition for other jurisdictions).
Highlights of the meeting are available to watch on the AIDS Geneva blog. The meeting also received mainstream coverage, including a report in L’Hebdo (Switzerland’s answer to Time or Newsweek) and in the main Geneva broadsheet, L’evenement.
US: HIV exposure conviction overturned by Kansas Supreme Court
On Friday, the Kansas Supreme Court overturned the HIV exposure conviction of Robert Richardson in Lyon county because the case ended up being a discussion of infectiousness, rather than one where the prosecution provided evidence that proved intent – which would have simply required testimony from a complainant about nondisclosure and non condom use.
Richardson’s case is somewhat complicated by the fact that he had previously been found guilty, in another county, of four counts of HIV exposure involving three women. Although originally sentenced to 32 months in prison, the Lawrence Journal-World reports that he “was later re-sentenced to two years probation” and that he was “released from supervision on the Douglas County cases in February.”
So this appeal was about whether Richardson should serve time for HIV exposure in Lyon county. The Emporia Gazette reports that:
Richardson’s defense had said that the prosecution had failed to establish that HIV is always a life-threatening disease; that he had actually exposed the victims because of lack of evidence that bodily fluids were exchanged during intercourse; or that he had the specific intent to expose his sexual partners to HIV.
The Emporia Gazette article then quotes Kansas Supreme Court Judge Lee A. Johnson who exaplains how and why he made the decision.
The trial, which took place without a jury in front of Judge Jeffry Larson,
“consisted entirely of testimony from two medical doctors, Dr. Christopher Penn for the prosecution and Dr. Clifton Jones for the defense.”
“The testimony of both doctors concentrated on whether HIV may be transmitted when a viral load level is low or undetectable and the effect of the virus on an infected individual’s lifestyle.”
Richardson’s “viral load” test in February 2005 had revealed 11,700 parts per millileter, considered a “medium level of the virus.” A new medication was prescribed and Richard’s viral load test in November 2005, after the incidents of sexual intercourse, had dropped significantly.
“The result was a viral load level of less than the minimum which could be measured, i.e., less than 50 parts per milliliter,” Johnson wrote.
This is interesting, given what we now know to be the Swiss statement. However, being somewhat ahead of their time, these arguments failed in the original trial, but what the State failed to do in this trial, explains Judge Johnson, was prove that Richardson had intended to expose the two female complainants to HIV.
Johnson wrote that in addition to the general intent requirement that almost always is in place, some crimes require an additional, specific intent. In this case, the law states it is unlawful for someone who knows he or she is infected with a life-threatening communicable disease to knowingly “engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life threatening communicable disease.”
The state Supreme Court found that the statute creates a “specific intent crime. The State was required to prove that Richardson, knowing he was infected with HIV, intentionally engaged in sexual intercourse … with the specific intent to expose them to HIV.”
Johnson wrote that the state presented evidence at the preliminary hearing from the two women involved with Richardson to establish that Richardson had HIV when they had sex with him, that he did not use a condom, and that he had falsely represented to one of the women that he was free from sexually transmitted diseases.
“These are prime examples of proven circumstances that could support an inference that Richardson intended to expose (the women) to HIV,” Johnson wrote. “Inexplicably, the State chose not to present any of this information at trial, and those facts were not included in the parties’ stipulation.”
Johnson wrote that the evidence was insufficient to support the convictions, prompting the justices to reverse both cases.
So, although this might be good news for Richardson, it’s not good news for anyone else who may be prosecuted under Kansas’s HIV exposure law. All that is required for a conviction is for the complainant to testify that the defendant, knowing he (or she) was HIV-positive, did not use a condom and did not disclose (or concealed) his (or her) HIV status.
Switzerland: Geneva Court of Justice accepts ‘Swiss statement’, quashes HIV exposure conviction
In the first ruling of its kind in the world, a court in Geneva, Switzerland, has quashed the 18 month prison sentence of a young HIV-positive man previously convicted of HIV exposure, after accepting that the risk of sexual HIV transmission on successful treatment is close to zero.
(Update: A more detailed version of this story now appears on aidsmap.com.)
The Geneva Court of Justice acquitted the young man on Monday, reports Le Temps. He had been found guilty last November after two female complainants testified that they had unprotected sex with him (which is against the law in Switzerland, whether or not there is disclosure, and even if the person with HIV is undiagnosed at the time), even though neither were infected.
Article 231 of the Swiss Criminal Code allows prosecution by the police – without the need for a complainant – of anyone who “deliberately spreads a dangerous transmissible human disease.” Informed consent to unprotected sex does not nullify the offence, and even the attempt to spread a dangerous transmissible human disease (i.e. HIV exposure without transmission) is also liable to prosecution.
During the original court case, reports The Geneva Tribune, an (unnamed) medical expert witness had testified that although treatment greatly reduces the risk of transmission, there remained a residual risk. Although the accused’s lawyer, Nicole Riedle, had entered the Swiss Statement from the Swiss Federal AIDS Commision (EKAF) into evidence, and Geneva’s deputy public prosecutor, Yves Bertossa, had wanted to suspend the hearing to interview an expert, the court declined to accept any further evidence.
Interestingly, it seems that it was Bertossa himself who appealed to the Court of Justice for Monday’s hearing, where the expert testimony of Professor Bernard Hirschel, one of the co-authors of the Swiss statement, persuaded the Court that the man had not been infectious when he had unprotected sex.
This now suggests that in Switzerland effectively treated HIV-positive individuals should no longer be prosecuted for unprotected sex, and it is hoped that this ruling may well have consequences for other jurisdictions that have HIV exposure laws.
This is most urgently required in the US and Canada – however, until nationally recognised experts make statements of their own about the beneficial effect of treatment on transmission, neither legal systems are likely to accept it. Sadly, both the CDC and WHO/UNAIDS have so far summarily dismissed the Swiss statement, despite increasing numbers of experts agreeing with it.
Significantly, Yves Bertossa is quoted in Le Temps as saying that despite the fact that there is still debate regarding the residual risks of transmission in people on successful treatment this should not make a difference to the court: “One shoudn’t convict people for hypothetical risks.”
Ce débat, estime Yves Bertossa, ne devrait pas influencer la justice: «On ne condamne pas les gens pour des risques hypothétiques», fait-il valoir.
Switzerland: Federal Court rules that undiagnosed criminally liable for HIV transmission
Switzerland’s highest court – the Federal Court in Lausanne – has ruled that a man who was unaware of his infection is still criminally liable for infecting a woman with HIV.
In effect, the court has ruled that anyone who has had unprotected sex in the past, and does not disclose it to their sexual partner before having unprotected sex with them, may be criminally liable should HIV transmission take place.
An unofficial translation of the article in the Neue Zürcher Zeitung (the original and the translation follow, below) reporting the case, says the following:
..you have to refrain from having unprotected intercourse, if there are concrete indications for a potential HIV infection. Indications can be, in principle, any perceived risky contact in the past, such as unprotected intimate contacts with a person whose sexual past one does not know. In principle the Safer Sex Guidelines of the Federal Health Office are authoritative for this. Irrelevant are the statistical risks of transmission or the fact that signs [of seroconversion] failed to appear.
There are three articles below. First, my article on this published today on aidsmap.com. Then there is a short article in English from swissinfo.ch, and finally the Neue Zürcher Zeitung article (in English and then a jpg of the German original) which contains a lot more information.
I also have a copy of the full judgment in German, which helped inform my article for aidsmap.
I had delayed reporting on this very important case because I had asked the Swiss Federal AIDS Commission (EKAF) to provide an official comment, and to discuss its implications. However, I found out last night that this will not be available until they have their next meeting in September. Nevertheless, I know that some individuals working with EKAF are very concerned about this latest development.
(Thanks to Nick Feustel, of georgetownmedia.de, for providing German to English translations).
Swiss court rules all people with HIV can be criminally liable for transmission, even if untested
Switzerland’s highest court – the Federal Court in Lausanne – has ruled that a man who was unaware of his infection when he had unprotected sex that transmitted HIV is still criminally liable. The ruling suggests that unprotected sex in Switzerland without first disclosing a sexual history may result in prosecution should HIV be transmitted.In 2006, the California state Supreme Court ruled that ‘constructive knowledge’ – when it is reasonably foreseen by a reasonably intelligent person that their actions could lead to harm – of the possibility that HIV transmission may occur, is enough to allow for civil liability. However, this is the first ruling anywhere in the world to find that an undiagnosed individual may be criminally liable for HIV transmission.
The criminal case, reported in some detail in the July 1st edition of the Neue Zürcher Zeitung, began with a trial in Zurich’s District Court in 2005. The complainant was a woman who had tested HIV-positive after having unprotected sex in 2002 with the defendant. Although the man had not been diagnosed HIV-positive before their sexual encounters, he did have a history of unprotected sex.
Notably, in 2000, he had been informed by a former sexual partner that she had been diagnosed HIV-positive. The man testified that he had not taken an HIV antibody test because he did not believe himself to have been infected during unprotected sex with this woman, based on a lack of seroconversion symptoms at the time. However, the District Court found him guilty under both public health and criminal law.
Swiss criminal HIV exposure and transmission laws
Liability for HIV exposure or transmission in Switzerland is based on two distinct sets of laws – those aimed at protecting the general public (public health law) and those protecting the individual (criminal law).Article 231 of the Swiss Criminal Code allows prosecution by the police – without the need for a complainant – of anyone who “deliberately spreads a dangerous transmissible human disease.” Informed consent to unprotected sex does not nullify the offence, and even the attempt to spread a dangerous transmissible human disease (i.e. HIV exposure without transmission) is also liable to prosecution.
Article 122, also allows prosecution for grievous bodily harm if unprotected sex results in HIV transmission. However, informed consent is a defence in this case, and a prosecution requires a complainant in order to prove that informed consent (i.e. disclosure of HIV status before sex) was not obtained.
In effect, “any unprotected sex of an HIV-positive person is a crime, even if there is no transmission,” Professor Pietro Vernazza, of the Cantonal Hospital in St. Gallen, and President of the Swiss Federal Commission for HIV / AIDS, tells aidsmap.com. In part, it was these draconian laws that motivated the Swiss Federal AIDS Commission’s recent statement regarding antiretroviral therapy’s effect on HIV transmission.
Cantonal Court upholds appeal
The undiagnosed man convicted under these laws appealed to the Zurich Cantonal Court in 2007. The appeal had two parts: questioning whether an undiagnosed person has a legal requirement to test for HIV and to disclose their sexual history; and questioning the validity of the phylogenetic analysis evidence used in the original case.The Cantonal Court ruled that not only was he not liable – because there is no law mandating HIV testing or disclosure after unprotected sex – but also that the scientific evidence was not conclusive enough to prove that he had infected the complainant.
Although phylogenetic analysis of the samples linked the man’s rare HIV subtype to the complainant’s own HIV strain, his lawyers successfully argued that phylogenetic analysis cannot rule out that another individual may have infected the complainant. In addition, phylogenetic analysis ruled out a link between the defendant and the HIV-positive woman with whom he had ‘risky’ sex in 2000.
Federal Court reverses appeal
On June 30th 2008, Switzerland’s highest court ruled that the man can be held responsible for HIV transmission under both public health and criminal law. They said the defendant could not ignore the fact that his own past behaviour was risky, particularly since one of his previous partners had told him she was HIV-positive after they had had unprotected sex.It also ruled that the woman did not have joint responsibility for her HIV infection because she did not give informed consent to the risk of unprotected sex. If she had known the man’s sexual history, it was unlikely she would have had consented to unprotected sex, it said.
An unofficial translation of the German-language article in the Neue Zürcher Zeitung quotes the following: “…you have to refrain from having unprotected intercourse, if there are concrete indications for a potential HIV infection. Indications can be, in principle, any perceived risky contact in the past, such as unprotected intimate contacts with a person whose sexual past one does not know. In principle the Safer Sex Guidelines of the Federal Health Office are authoritative for this. Irrelevant are the statistical risks of transmission or the fact that signs [of seroconversion] failed to appear.”
The Federal Court also overturned the ruling on phylogenetic analysis, saying that since the defendant’s strain was so rare, it would have been highly unlikely that the complainant could have acquired it elsewhere.
In effect, Switzerland’s highest court had now ruled that anyone who has had unprotected sex in the past, and does not disclose it to their sexual partner before having unprotected sex with them, may be criminally liable should HIV transmission take place.
Court rules in HIV case
July 1, 2008
swissinfo.chSwitzerland’s highest court has ruled that a man who unknowingly infected a woman with HIV can be held responsible for his actions.
The Federal Court in Lausanne wrote that any person having occasional sex with another should use a condom to protect the other person. Otherwise they should expect to be accused of causing seriously bodily harm through negligence if the occasional partner is diagnosed with the Aids-causing virus.
The decision overturns an earlier one by Zurich’s cantonal court after an appeal by a woman who was diagnosed with the virus. She had had unprotected sex with a man who did not know he was contaminated.
The man had previously had unprotected relations with other partners, and the country’s highest court ruled that he had failed to apply the rules of safe sex.
Even if he did not know he was HIV positive, the judges said he could not ignore the fact that his own behaviour was risky, especially after one of his earlier partners had admitted being infected.
HIV Transmission After Risky Contacts: Conviction required
Neue Zürcher Zeitung
1 July 2008If you ignore the possibility of being infected with HIV after previously having had risky contacts, and then infect a sexual partner by having unprotected intercourse, you can be prosecuted for reckless greivous bodily harm. The Federal court requires the Zurich cantonal courts to convict a man, who had unprotected intercourse with various women for years.
In 2000, one of his former sexual partners informed him she was HIV-positive. He abstained from having an HIV test done, because he relied on not having been infected due to the lack of signs, such as fever attacks. Two years later he had unprotected sex with another woman, who he didn’t inform about that risk. Later she was diagnosed with having the same rare HIV strain as he did.
The Zurich cantonal court fully acquitted the man in March 2007 of the accusation of reckless greivous bodily harm and reckless spreading of human diseases, following an earlier convicion. The court had negated the recklessness of the act, claiming that there is no legal obligation to test for HIV after having had unprotected intercourse.
The Penal Department of the Federal court has now approved of the victim’s remonstrance and sent the matter back to the Cantonal court for the conviction of the man. According to the adjudication from Lausanne, as for the question of recklessness, it is decisive that you have to refrain from having unprotected intercourse, if there are concrete indications for a potential HIV infection. Indications can be, in principle, any perceived risky contact in the past, such as unprotected intimate contacts with a person whose sexual past one does not know. In principle the Safer Sex Guidelines of the Federal Health Office are authoritative for this. Irrelevant are the statistical risks of transmission or the fact that signs [of seroconversion] failed to appear.
The Lausanne judges answered their Zurich colleagues back on another point. The Cantonal court’s perception that the woman could have been infected indirectly via a chain of persons with the relevant virus type, is highly unlikely and therefore indefensible, according to the Lausanne judges.
Finally even a joint responsibility of the woman was negated. If she had known the preliminary history of her sexual partner, she would hardly have had consented to having unprotected intercourse, says the Federal court.
