Africa: HIV Laws Do More Harm Than Good by Miriam Mannak (IPS)

I received an email last week from Miriam Mannak, a freelance writer based in Cape Town, South Africa who keeps on blog on AIDS in Africa. She recently contributed this excellent piece on the spectre of criminalisation on her continent to the Inter Press Service News Agency, whose mission is to give voices to the voiceless.

 

AFRICA: HIV Laws Do More Harm Than Good by Miriam Mannak (IPS)

CAPE TOWN, Jul 30 (IPS) – In Sierra Leone, a mother who transmits HIV to her child can be fined, jailed for up to seven years, or both. Human Rights Watch reports that in 2008, several men were arrested in Egypt simply for being HIV positive. New legislation is currently being discussed in Angola that could lead to a three to ten year jail sentence for those who knowingly pass on HIV.

The legislation is inspired by a September 2004 workshop organised by the influential reproductive health organisation Family Health International developed an “African Model Law” intended to protect those who are infected and exposed to HIV.

But various civil society organisations fear that these legislative measures will hurt more than help the fight against HIV/AIDS.

Discourages testing, delays treatment

“If being HIV positive is being regarded as a crime, people will be less likely to get themselves tested,” said Johanna Kehler, director of the Aids Legal Network (ALN) – a South African non-governmental organisation that aims to protect the human rights of people living with and affected by HIV/AIDS.

“This means that they are more likely to spread the disease unknowingly, and will not have access to antiretrovirals that may help to prolong their lives.”

Jennifer Gatsi Mallet – coordinator of the Namibian branch of the International Community of Women Living with HIV/AIDS (ICW), a global network run for and by HIV positive women – agrees with Kehler’s statements.

“The criminalisation of HIV will be yet another reason why people will stay away from testing facilities and clinics,” she said.

The International Planned Parenthood Federation, a global organisation that advocates sexual and reproductive health and rights, counts 58 countries around the world with laws in place to prosecute HIV transmission and 33 others that are considering passing such legislation. Of these, twenty are in Africa.

Women lose more

“Women will be the first ones in line to be prosecuted, as they are more likely to know their status compared to men, simply because they visit clinics more often, for instance during and after their pregnancy,” Kehler explained.

Gatsi Mallet added that in “many parts of Africa, clinics and men are like water in fire. While some accuse health facilities of being unfriendly to men because most of the health care workers are female, others consider visiting as unmanly, especially when it comes to HIV and other sexual related transmitted diseases,” she added.

“They therefore rather prefer to go to traditional healers, whom are in general more male orientated.”

Because women are more likely to discover they are HIV positive, their male partners often blame them for bringing the virus home – regardless of the fact that the infection may well have travelled the other way.

“Women across the world, including in Africa, experience difficulties negotiating safe sex,” Kehler said. “If a man does not want to use a condom, they often are left with no choice.”

Angela from Cape Town, who requested anonymity – contracted the virus a few years ago. “I never had sex with anyone else but my husband, but I suspected that he was sleeping around. I just knew. So sometimes I asked him to use a condom, but he always blatantly refused,” she explained.

“He said that a wife is supposed to trust her husband. When I went for prenatal care two years ago, I was told I was HIV-positive. After confronting my husband, he accused me of sleeping around and of infecting him. He threw me out of the house.”

In countries like Egypt, such an accusation could lead to prosecution. The same is true in Togo, where HIV-positive people are prohibited by law from having unprotected sex, regardless of whether they have disclosed their status to their partner.

“In case of prosecution, women are left in a terribly vulnerable position, as many do not have the resources to, for instance, prove that they were HIV negative before intercourse,” Kehler noted. “Neither can they prove if they did not do it deliberately.”

Laws against mother to child transmission (MTCT) should also be banned, the ALN argues.

An HIV-positive mother can pass the virus to her child during pregnancy, whilst giving birth, or through breast feeding. Of the 370,000 cases of MTCT each year, about 90 percent occur in Africa, according to UNAIDS.

In countries like Guinea, Guinea-Bissau, Mali and Niger, a mother can be criminally charged if she does not take steps to prevent HIV transmission to baby, including taking antiretrovirals during the pregnancy.

MTCT is almost entirely preventable, by taking antiretrovirals and giving birth in a sterile environment. Breast feeding poses certain risks: WHO studies indicate that a mother who is HIV positive risks passing the virus on to her child. But in certain situations – for example where a mother does not have access to clean water to mix formula and sterilise bottles, but is on antiretrovirals – exclusive breastfeeding is recommended.

Formula-fed babies in developing countries are six times more likely to die from diseases like diarrhoea and respiratory infections than breast-fed babies, according to WHO.

“The problem is that many African women do not have access to proper health care facilities and cannot afford formula,” Kehler said. “These are things governments should provide. If they fail, they should be the ones that are to be held accountable for MTCT.”

SIDEBAR: Who’s responsible for MTCT?Chantelle Heunis* from Overcome Heights – an informal settlement near Cape Town – was infected by her now ex-husband with the disease in 1999. At the time she was pregnant with her second daughter.

“I only found out after my baby was three months old, after I went for a check-up as she was ill due to lactose intolerance. The nurse offered to test me for HIV – which was not a routine procedure back in the days. The results came back positive.”

The next step was to test the baby. “It was dreadful, but thank god she was found HIV negative,” Heunis said. “She is ten years old now, and as healthy as can be.”

According to Heunis, it should not be allowed for women to be punished for MTCT. “I was lucky because I was in good hands, but many women do not have this privilege. They transmit the virus through unhygienic birthing practices, for instance, or because they do not have access to ARVs to prevent MTCT.”

She also rejects the notion that HIV positive women should not be allowed to have children. “It is within our rights to have children. Besides, if a mother is HIV positive, that does not mean the baby is also.”

* not her real name.

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.

Editorial: Burden of HIV disclosure falls on Uganda’s women

An article in today’s Toronto Star highlights the heavy burden that HIV-positive women will carry under Uganda’s proposed HIV/AIDS Prevention and Control Law.

In the article, children’s rights activists, Marc and Craig Kielburger, note that many HIV-positive women in Uganda – who are likely to be tested before their husbands as part of ante-natal screening – face violence and even death for disclosing their HIV status to their husbands. They highlight the fate of Glorius Kyarihunda, 25, who was murdered by her husband within days of disclosing her HIV status to him.

According to the Ugandan branch of the International HIV/AIDS Alliance, Glorius was one of five women murdered in 2008 under similar circumstances. Thousands more suffered abuse or eviction. In a survey of just one district by ActionAid Uganda, 100 out of 465 women said they experienced domestic violence as a result of disclosing their status.Disclosure is not only difficult, it’s dangerous. Yet, just months after Glorius’ death, the Ugandan Parliament is debating a bill that gives a person six weeks after testing positive to tell their partner before the government does.

Given the inequalities in both inter-personal relationships, and the legal status of women in Uganda, this is simply unfair, they argue given:

the rules of predominantly male-dominated societies leave women unable to negotiate condom use or family planning. Many men, like Glorius’ husband, hold their wives responsible for infection.

The article then goes on to critique other criminal HIV transmission laws in Africa:

In Togo, anyone who doesn’t use a condom in “all risky sexual relations” is breaking the law while Guinea requires mandatory testing before marriage. In Zimbabwe, a woman was convicted for “deliberately infecting another person.” Her lover has never tested positive for the virus. In Sierra Leone, women can also be criminalized for exposing their infants to HIV.

That this anti-criminalisation article was published in a Canadian paper is somewhat ironic given the number of prosecutions taking place there, but then there is often a lack of joined-up-thinking in many low-prevalence countries when it comes international concern about AIDS and domestic HIV policies.

US: Iowa’s criminal HIV transmission law placed under the microscope

A series of articles published this week in the Iowa Independent, have scrutinised Iowa’s poorly-written, erroneously named ‘criminal transmission of the human immunodeficiency virus’ law (transmission is not required to be found guilty) following the May sentencing of 34 year-old Nick Rhoades to 25 years in prison after he pleaded guilty to a one-off act of non-disclosure with another man he met online. The articles suggest that there is a growing, grass-roots movement to reform the law, confirmed by a regular reader of my blog from Iowa, who tells me “some disparate elements are forming to get this law off of Iowa’s books. My state senator seems to be on board and hopefully we can all get ourselves together to form a lobby by this fall to ready ourselves for the legislative session in January.”

Journalist Lynda Waddington’s first article for the Iowa Independent, published last Monday, focuses on the Rhoades case and the history of Iowa’s HIV-specific law passed in 1998, the same year that Mr Rhoades was diagnosed HIV-positive. Since then, 36 people have been charged of whom 24 have been convicted. Ten men and two women are currently in an Iowa prison serving sentences up to 25 years for this ‘crime’.

She critiques the law for being poorly-written, allowing it encompass sexual acts with a “minuscule risk of transmission — such as kissing”. She then writes:

Further, Iowa law not only mandates informed consent of the specific act, but for the person consenting to have knowledge “that the action of exposure could result in transmission.” While this particular phrase could have been added as a protection for individuals with mental deficiencies, could it also be used to prosecute someone who engaged in a low-risk intimate activity without realizing that the activity could potentially result in transmission?

Indeed, sources close to the Rhoades case have informed me that oral sex was the only HIV transmission risk that occurred between the two men, although the Court is vague on this, and the police report too squeamish to mention anything other than “intimate contact”.

In her second article, published on Wednesday, Waddington examines further the impact of this law in Iowa, which she notes has been upheld by the Iowa Supreme Court three times.

She quotes Rhea Van Brocklin, community relations director for the AIDS Project of Central Iowa who states that the law does not appear to dissuade people at high-risk of HIV from testing:

“It could be hearsay within the community that people are afraid to get tested because of the law, but our agency specifically hasn’t seen that,” she said. “In fact, we doubled our testing numbers in 2008. We had a goal to test between 400 and 500 high-risk individuals and we tested about 800 last year. What we see is that people are taking HIV seriously and they want to know their status.”

[This is extremely interesting since I’m currently researching the claim made by many anti-criminalisation advocates that criminal HIV transmission laws deter people from testing, and, from what I am reading, there is no evidence to support these claims.]

The rest of the second article explores whether Iowa’s law should be revised or repealed. She interviews former Iowa representative, Ed Fallon, who voted for the law in 1998, but who now “believes that it might be time for the state to revisit criminal transmission laws.”

“It seems to me that since it is now 11, almost 12, years later, it wouldn’t be bad time to take a look at it again,” said Fallon, who admits he had some reservations before casting his affirmative vote for the bill. “I can think of so many bills we worked on that in the following year, or a few years later, we were rewriting or revisiting. … So, yes, surely the are some tweaks or changes that the legislature could consider relevant to this law, especially with all the new knowledge we have of the disease.”

He recalls that the impetus to pass the law was based on the State accessing Ryan White HIV funding from the Federal Government. However, the homophobia that informed the banning of gay marriage in the same legislative session may also have played a role.

“Certainly, in terms of that conversation, AIDS was a ‘gay disease,’ and we had to crack down on the lifestyle that helped spread the disease. So, there may have been a connection [between criminal transmission and same-sex marriage], but I honestly can’t recall if those types of sentiments continued into this debate.”

The discussion around reform or repeal is the subject of Waddington’s third article published on Friday. She interviews Bob Rigg, an experienced academic who is part of a committee examining the reorganising of Iowa’s criminal code, who warns advocates fighting for reform to be careful what they wish for.

“When people start playing around with the criminal code or they start saying that we should amend our Constitution, I’m like, ‘No, we shouldn’t.’ I err on the side of caution,” he said. “If you think what you’ve got is bad, be careful. You just might end up with something even worse.”

He suggests that a more pragmatic (if extremely conservertive), softly-softly approach might produce better outcomes for individuals convicted under Iowa’s ‘criminal transmission of HIV’: let the judges do what they do, but since the prison authorities have leeway to release individuals on parole, it is they who end up deciding how long a 25 year sentence really is.

“Just because a defendant is sentenced to 25 [years], doesn’t mean he or she is going to serve 25. Some of these individuals could be paroled in as little as two.”While state intervention to reduce prison sentences may not be an intended consequence of the initial legislation, Rigg argues that it can have “a moderating effect” on an otherwise extreme sentence.

“It is the judge’s job to sentence them. It is the DOC’s job to evaluate them for release,” he said.

Of course, this doesn’t the address the fact this is still a discriminatory, outdated law. The article ends somewhat downbeat, however, noting that law reform can be a long, long road.

A comment after the last article, from an HIV-positive Iowan, highlights that such long-term goals are absolutely necessary:

If it’s not possible to eliminate the HIV law in Iowa, amend it to add intent; probably most persons in Iowa that know their HIV status (and you have to know it to be prosecuted under the law) are under treatment and extremely low infection risk. When I was considered for prosecution under the law I was defending myself from an assault–I bit someone on the finger (he stuck his finger in my mouth, actually). Now, it’s not likely I could infect someone in the normal way, let alone a finger bite and yet THREE of Johnson County assistant DA’s recommended I be prosecuted under Iowa’s HIV law.

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.

New Zealand: Article examines implications of ‘HIV predator’ case

After all the hysterical media reporting surrounding the current ‘HIV predator’ case comes a thoughtful analysis of the situation from the New Zealand Herald. The article also usefully includes a summary of the most important criminal HIV transmission cases over the years.

I include the first few paragraphs below. Click here to read the full article.

HIV-positive: The case for disclosure
By Chris Barton
Saturday Jun 06, 2009

Many questions arise from the case of the 40-year-old HIV-positive man charged with wilfully infecting three other men with HIV and attempting to infect a fourth.

Not just why the man, now in custody with name suppression, allegedly did what he did. Or why it took so long for the police to stop him. Or why our laws are so out of date that doctors and other health professionals are uncertain about what to do when they come across such reckless behaviour. Or why HIV is not a notifiable condition.

Puzzling as all that sounds, the greater mystery here is why did the man’s sexual partners participate the way they did? Why, after decades of messages honed from the reality of the Aids epidemic 25 years on, did they not practise safe sex?

Past cases include:

1994 Kenyan musician Peter Mwai sentenced to seven years jail for having unprotected sex with five women and infecting two with HIV. Deported in June 1998 having served four years in jail here, Mwai died in Uganda in September 1998.

1999 David Purvis, a 31-year-old Pakuranga invalid beneficiary, sentenced to four months jail for committing a criminal nuisance by having unprotected sex with another man who did not contract HIV. Pleaded guilty.

2001 Former male prostitute Christopher Truscott held in “secure” care (he has escaped many times) in Christchurch after being prosecuted in 1999 for having unprotected sex with four men. Intellectually impaired, Truscott seemed unable to comprehend the implications of his HIV infection.

2004 Zimbabwean Shingirayi Nyarirangwe, 25, was sentenced to three years jail after pleading guilty in the Auckland District Court to four charges of criminal nuisance and three of assault relating to unprotected sex with several women.

2005 Justin Dalley found guilty of criminal nuisance by failing to inform a woman he was HIV positive – sentenced in Wellington to 300 hours’ community work, six months’ supervision and told him to pay $1000 reparation to the woman to cover her counselling costs and expenses. The woman did not contract HIV. Soon after, Dalley was acquitted on a second, similar charge because on that occasion he did wear a condom – possibly setting a legal precedent that by wearing a condom an HIV positive man is taking “reasonable precautions” against infection and need not disclose his HIV status.

Current A New Zealander originally from the Democratic Republic of Congo awaiting trial on charges that he had unprotected sex with a woman and infected her with the virus. It is possible he also infected other women.

Uganda: Article examines why HIV/AIDS Prevention and Control Bill is flawed

An excellent article from Andrew Bahemuka, policy advocacy officer of the Uganda Women’s Network, summarises all of the arguments against HIV-specific criminal HIV transmission legislation, published today in New Vision.

Criminalising HIV/AIDS: Not a win-win situation
Publication date: Wednesday, 15th April, 2009
By Andrew Bahemuka

AFTER nearly 30 years of addressing the HIV/AIDS pandemic, Uganda has reinforced the importance of breaking the silence around the epidemic, talking openly about HIV, and encouraging people to live positively.

Presently the Government seeks to complement the existing policy framework on HIV/AIDS with an overarching legal response.
The Government’s push to come up with the HIV/AIDS Prevention and Control Bill, 2008 is driven by the wish to respond to serious concerns about the ongoing rapid spread of HIV/AIDS in the country; coupled by what is perceived to be a failure of existing HIV prevention efforts.

However, applying criminal law to HIV exposure or transmission, except in very limited circumstances, does the opposite. It reinforces the stereotype that people living with HIV are immoral and dangerous criminals, rather than, like everyone else, people endowed with responsibility, dignity and human rights.

In some countries, which have passed the law, women have been prosecuted for mother-to-child transmission (PMTCT) of HIV. This is particularly outrageous when globally prevention of mother-to-child transmission coverage is only at 33%.

In resource poor settings, criminalisation is likely to put the blame solely on the woman for transmission that she may be unable to prevent due to dismally poor PMTCT coverage.

Criminalising HIV transmission does nothing to address the real problem which is women’s overall lack of power in society. Women often learn they are HIV positive before their male partners because they are more likely to access health services and thus are blamed for bringing the HIV virus into the relationship, according to a UNAIDS report.

Criminalisation therefore, is unlikely to prevent new infections or reduce women’s vulnerability to HIV. Criminalisation may harm women rather than assist them, and negatively impact both on public health and human rights.

Criminalising HIV exposure or transmission is generally an unjust and ineffective public policy. The obvious exception involves cases where individuals purposely or maliciously transmit HIV with the intent to harm others. Article 13 in particular provides for compulsory testing of targeted groups (drug abusers, sexual offenders and commercial sex workers) contrary to the international guidelines on HIV/AIDS and human rights.

The targeted groups are predominantly vulnerable and marginalised categories who should, in fact, be subjects of protection by the state. In these cases, existing criminal laws can and should be used rather than passing HIV-specific laws.

In addition, the Government should effectively prosecute all cases of sexual violence and ensure that rape in marriage is recognised as a crime. This is unlikely to happen soon with the Government’s delay in passing the Domestic Relations Bill, the Sexual Offences Bill and the Domestic Violence Bill.

Criminalisation of HIV immediately invokes stigma, discrimination and a disincentive for voluntary testing, and access to care and treatment. Save for a few cases, most people who transmit HIV either do so not knowing they are infected and not knowing they are transmitting HIV, or because they fear to reveal their HIV status.

Examples include women in abusive relationships who may fear to disclose their status for fear of the repercussions. Even in these cases, however, the creation of HIV-specific offences is generally not warranted, as existing criminal laws are sufficient to punish individuals who specifically intend to transmit HIV to others.

For example, laws against causing bodily harm can be applied to HIV transmission. Even under criminal law, caution has to be taken where there was no significant risk of HIV transmission or where a person:

-Did not know that he or she was HIV-positive
-Disclosed his or her HIV-positive status to the person at risk (or had reason to believe the other person was aware of his status)

-Did not disclose his or her HIV-positive status because of fear of violence or other consequences.

-Took risk-reducing measures (such as practising safer sex through using a condom or other precautions), or

-Previously agreed on a level of mutually acceptable risk with the other person.
In view of the above, HIV/AIDS specific legislation is not a necessity and should not be encouraged. The Government should focus on empowering people living with HIV to seek HIV testing, disclose their status, and practise safer sex without fear of stigma and discrimination.

The Government could aim at empowering HIV-positive persons by enacting and enforcing anti-discrimination laws and promoting social campaigns to reduce stigma. In order to slow down the spread of the HIV epidemic, vast numbers of people would have to be prevented from having unsafe sex, sharing syringes, or engaging in other risky behaviour, which no HIV-specific criminal law could possibly do.

HIV risk behaviour is prevalent in prisons, and most prison systems continue to reject introduction of evidence-informed prevention measures such as condoms and sterile injecting equipment and fail to undertake measures to reduce the prevalence of rape and other forms of sexual violence.

There is need therefore, for the Government to consult widely with the different stakeholders to make the current bill, human rights responsive. That is when we shall consolidate the gains the country has made in the HIV/AIDS struggle.

US: New York DA calls for HIV-specific laws following new ‘reckless endangerment’ case

A New York State man charged with nine counts of reckless endangerment for having sex with nine males aged between 16 and 20 (the age of consent in NY is 17) without disclosing his HIV status has unleashed a political maelstrom reminiscent of the Nushawn Williams case in the late 1990s.

Suffolk County District Attorney Thomas Spota is teaming up with Parents for Megan’s Law – a group that advocates cracking down on sex offenders – and calling for HIV-specific laws in New York State because, according to an article in today’s Newsday, the man is “a walking public health menace.”

“Often, it is not until confronted with a case such as this that inadequacies in the law are revealed to prosecutors and the public,” Spota said. “The penal law needs to be reviewed and revised to enhance the penalty and the ability to prosecute an individual who knowingly exposes individuals to HIV,” the virus that causes AIDS.

The current case involves a 36-year-old newspaper deliveryman from Oceanside, who was arrested in December for having sex with a 16 year-old male in his car. When officers found HIV medications in the car, he was arrested and charged with reckless endangerment, criminal sex acts and endangering the welfare of a child.

Yesterday, he was charged on another eight counts of reckless endangerment after investigations uncovered a further eight males, aged 16 to 20, with whom he allegedly had sex without disclosing his HIV status. Unlike Williams, who pleaded guilty and was tried in the media, the man has pleaded not guilty on all nine counts of first-degree reckless endangerment.

A second news story from Newsday does not clarify whether any of the males have tested HIV-positive, and also shows a certain amount of ignorance regarding HIV transmission from Spota.

Suffolk County District Attorney Thomas Spota said medical privacy laws prevent him from revealing whether any of the alleged victims had contracted HIV or AIDS. He also noted New York law does not allow him to prosecute the suspect on charges of intentionally spreading the disease, adding he intends to ask state lawmakers to consider a change in the law.

Spota said [the man] faces a maximum of seven years if convicted of the most serious charge.

“On the other hand, each of the victims of this crime have been sentenced in our view to a lifetime of worry and testing,” he said.

Today’s sensitive HIV antibody tests have reduced the ‘window period’ between infection and diagnosis to a few weeks. A few people may produce antibodies outside this period, but all tests are now accurate by 3 months. Therefore, this will not result in a “lifetime of worrying and testing,” as long as the young men are advised of the medical facts.

Complicating matters somewhat is the fact that the man is a registered sex offender due to “a 1992 sodomy conviction involving a 6-year-old relative. He was released from prison in 2001.”

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.

US: Nebraska Senator proposes new HIV exposure laws

Senator Pete Pirsch of Omaha, Nebraska has proposed an amendment to Nebraska’s Revised Statutes that would criminalise “intentionally, knowingly, or recklessly engag[ing] in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life-threatening communicable disease.”

The law, of course, makes no sense, and is badly written, like so many HIV-exposure laws. It will basically criminalise any diagnosed HIV-positive person who has unprotected sex without first disclosing their HIV status to their prospective partner, and the individual will be punished (by up to 20 years’ imprisonment) regardless of whether there was a real risk of HIV transmission, or even whether HIV transmission occurred.

This is the second time that Nebraska has attempted to pass an HIV exposure law. In 2004, Senator Lowen Kruse proposed a similar law which did not pass. Let’s hope the same happens this time.

Below, I include the Associated Press story (complete its a stigmatising and incorrect headline) from an Omaha radio station website, and the full text of the proposed law, which can be downloaded as a pdf here.

Update: The reason behind the new push for a law is this case from December.

Allen J. Moore won’t have a chance to spread HIV to anyone – at least not anyone outside of prison – for the next 10 years…Moore was sentenced for manufacturing child pornography after Omaha police investigators discovered a tape of him having sex with a 17-year-old boy and a young man. The 17-year-old told police that he consented to sex with Moore. The teenager said, however, that Moore never told him he had HIV. Now, the teen is saddled with the virus that can cause AIDS. And now, state senators are prepared to reconsider a bill that would make it a crime to knowingly transmit HIV without informing an intimate partner. Without such a charge, prosecutors had to scramble to find anything to hold Moore accountable. State Sen. Brad Ashford, chairman of the Judiciary Committee, called Moore a “poster child” of why Nebraska needs such a law.

Spreading AIDS could be felony in Neb.
Associated Press – January 21, 2009

LINCOLN, Neb. (AP) – Having sex with the intention of spreading a deadly disease like AIDS would be a felony in Nebraska under a proposal in the state Legislature.

State Sen. Pete Pirsch of Omaha introduced the bill (LB625) Wednesday that would also make it illegal to sell or donate organs, blood, semen and other bodily fluids with the intention of spreading a deadly disease. Sharing hypodermic needles with the same purpose would also be illegal.

Pirsch wants a harsh penalty for violating the proposed law. Violators would be guilty of a Class 1B felony, which carries a minimum prison sentence of 20 years, and a maximum sentence of life in prison.

LEGISLATURE OF NEBRASKA
ONE HUNDRED FIRST LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 625
Introduced by Pirsch, 4.
Read first time January 21, 2009
Committee: Judiciary
A BILL
1 FOR AN ACT relating to crimes and offenses; to amend section
2 28-101, Reissue Revised Statutes of Nebraska; to prohibit
3 the intentional exposure to another of a life-threatening
4 communicable disease; to harmonize provisions; and to
5 repeal the original section.
6 Be it enacted by the people of the State of Nebraska,

1 Section 1. Section 28-101, Reissue Revised Statutes of
2 Nebraska, is amended to read:
3 28-101 Sections 28-101 to 28-1350 and section 2 of this
4 act shall be known and may be cited as the Nebraska Criminal Code.
5 Sec. 2. (1) It is unlawful for an individual who knows
6 oneself to be infected with a life-threatening communicable disease
7 to intentionally, knowingly, or recklessly:
8 (a) Engage in sexual intercourse or sodomy with another
9 individual with the intent to expose that individual to that
10 life-threatening communicable disease;
11 (b) Sell or donate one’s own organs, tissue, or blood,
12 blood products, semen, or other bodily fluids with the intent to
13 expose the recipient to a life-threatening communicable disease;
14 and
15 (2) Share with another individual a hypodermic needle,
16 syringe, or both for the introduction of drugs or any other
17 substance into, or for the withdrawal of blood or body fluids
18 from, the other individual’s body with the intent to expose another
19 person to a life-threatening communicable disease.
20 (3) For purposes of this section:
21 (a) Sexual intercourse does not include penetration by
22 any object other than the male sex organ; and
23 (b) Sodomy does not include the penetration of the anal
24 opening by any object other than the male sex organ.
25 (4) Violation of this section is a Class IB felony.