UK: Developing guidance for HIV prosecutions: an example of harm reduction?

I’m including an excerpt here – the conclusion, actually – of an excellent article by Yusef Azad of the National AIDS Trust, in the July issue of the HIV/AIDS Policy and Law Review, published by the Canadian HIV/AIDS Legal Network, which describes the way the HIV sector managed to successfully intervene and manage the harm of criminal prosecutions in England & Wales for ‘reckless’ HIV transmission following an initial period of shock and panic.

By persuading the Crown Prosecution Service (CPS) to consult with the community on the production of a policy statement, as well as legal guidance for prosecutors and caseworkers in this area of law, he argues that this was pragmatic ‘harm reduction’. Certainly, the process has resulted in a much higher burden of proof of transmission and guilt, and there have been no successful prosecutions since an African migrant living in Bournemouth pleaded guilty in January 2007.

Since then, three cases have been dismissed by a judge in pretrial hearings, including two gay cases (in Preston in April 2007 and Cardiff in May 2008) and one heterosexual case (in Manchester in October 2007). These prosecutions all failed because the men had the same informed solicitor who successfully argued that the CPS failed to provide uneqivocal proof that the defendant, and only the defendant, could have, in fact, infected the complainant(s). Although the CPS guidance was only published in March 2008, even the existence of draft versions was enough to persuade the judge in the earlier two cases.

The full article, ‘Developing guidance for HIV prosecutions: an example of harm reduction?’, can be found here.

Judging success depends a lot on one’s initial expectations. The CPS were not in a position to end prosecutions for reckless transmission or disagree with the interpretation of the OAPA 1861 as set out by the Court of Appeal.

What they could do — and what they did do — was consider in greater depth, and on the basis of detailed evidence, what is required to prove responsibility for infection, knowledge, recklessness and appropriate use of safeguards. An informed understanding of these elements has, even in the context of current criminal law, resulted in fewer and fairer prosecutions.

As the CPS says in its Policy Statement, “[O]btaining sufficient evidence to prove the intentional or reckless sexual transmission of infection will be difficult … accordingly it is unlikely that there will be many prosecutions.” Therefore, we should consider this to be a successful example of policy intervention as harm reduction.

It was not without its risks. Success was due to a number of factors, not least of which was a CPS that was already committed to taking seriously the concerns and experiences of affected communities when considering prosecutions in socially sensitive areas of law.

Some jurisdictions will not have such an enlightened prosecution service, and so the HIV sector will need to start further back in terms of engaging with the authorities. But it may be possible, even given the different legal contexts of different countries, to use the CPS Guidance to help bring about improvements in practice elsewhere.

The process was helped immensely by the commitment from an extraordinarily wide range of partners within the HIV sector, encompassing NGOs, academics, clinicians, virologists and, above all, people living with HIV.

Although harm may be reduced, it has not been ended — prosecutions for reckless HIV transmission remain and will continue. There is an urgent need to restate the ethical and policy case against such prosecutions and to consider freshly how and when we might engage with political decisionmakers on this issue.

UNAIDS says criminal prosecutions do more harm than good

This week UNAIDS has released a fantastic new policy paper firmly establishing that criminal prosecutions for HIV exposure or transmission – whether through sex, drug use or mother to child transmission – do far more harm than good.

The paper coincides with the the XVII International AIDS Conference in Mexico City, where this issue is high on the agenda. There’ll be more from the conference soon, but for now, this policy paper is an extremely important addition to the anti-criminalisation armamentarium.

In some countries, criminal law is being applied to those who transmit or expose others to HIV infection. There are no data indicating that the broad application of criminal law to HIV transmission will achieve either criminal justice or prevent HIV transmission. Rather, such application risks undermining public health and human rights. Because of these concerns, UNAIDS urges governments to limit criminalization to cases of intentional transmission i.e. where a person knows his or her HIV positive status, acts with the intention to transmit HIV, and does in fact transmit it. In other instances, the application of criminal law should be rejected by legislators, prosecutors and judges….

 

Download the entire paper (8 pages) here.

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

Edwin J. Bernard,
aidsmap.com
Friday, July 18, 2008


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.ch

Switzerland’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 2008

If 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.

Africa’s criminal HIV transmission laws are highly inefficient, says Justice Michael Kirby

Australia’s most eloquent and insightful High Court judge, Justice Michael Kirby, spoke at the International Criminal Law Reform conference in Dublin yesterday, arguing that the move to criminalise HIV transmission in sub-Saharan countries such as Benin, Guinea, Guinea-Bissau, Mali, Niger, Togo and Sierra Leone will do more harm than good.

He also also argued that countries which focused on human rights-based laws that encouraged the undiagnosed to test for HIV did better at containing the epidemic than those which “adopted punitive, moralistic, denialist strategies, including those relying on the criminal law as a sanction.”

 

Third World should help HIV sufferers, not punish them: judge

Victor Violante, Legal Affairs Reporter

The Canberra Times

16/07/2008

Developing countries should introduce laws that encourage potentially HIV-positive people to seek diagnosis and treatment, High Court judge Justice Michael Kirby said last night.

Speaking at the International Criminal Law Reform conference in Dublin, Justice Kirby said governments that had focused on educating rather than punishing those with HIV or AIDS were most successful in containing their spread.

”Those countries that have adopted a human rights-respecting approach to the HIV/AIDS epidemic have been far more successful in containing the spread of HIV than those countries that have adopted punitive, moralistic, denialist strategies, including those relying on the criminal law as a sanction,” he said.

Justice Kirby has been heavily involved in the international fight against AIDS, having served as a member of the World Health Organisation’s Inaugural Global Commission on AIDS from 1988 to 1992. Since 2004 he has been a member of the UNAIDS global reference panel on HIV/AIDS and human rights.

While many developed countries, including Australia, had laws that criminalised the deliberate spread of HIV, such laws should not be used as part of the strategy to curb infection rates.

”Legal and punitive laws have been kept in reserve because their aggressive deployment has generally been seen as counterproductive.

”This is so because of the typical ineffectiveness of criminal law as a response to activities important to individual identity and pleasure [such as sex and drug use].”

Justice Kirby, who is openly homosexual, spoke about his indirect experience with HIV, having seen friends die from the virus.

”From 1985, I lost a number of close friends, several of them members of the legal profession. I witnessed the substantial helplessness of the medical profession in the early days of HIV.”

He urged the thousands of lawyers, judicial officers and lawmakers from all over the world at the conference to avoid enacting what he called ”HILs”, or highly inefficient laws.

Of concern were laws introduced in some African nations, including Benin, Guinea, Guinea-Bissau, Mali, Niger, Togo and Sierra Leone, that impinge on the human rights of those infected with HIV or AIDS.

One law criminalised the ”wilful transmission” of HIV, but defined the offence as the transmission of HIV ”through any means by a person with full knowledge of his or her HIV status to another person”.

Justice Kirby said, ”Potentially, [that law] imposes criminal liability, although a person may practise safer sex which reduces or eliminates actual risk of transmission to a sexual partner; takes steps to disinfect injecting or skin-piercing equipment; or involving mother-to-child transmission of HIV regardless of the actual risks involved in the particular case.”

He urged governments to introduce laws and programs that were proven strategies in the war against HIV and AIDS, even if they were unpopular with their cultures.

”Taking the effective measures is not always popular. Yet taking punitive measures, depending on their terms and enforcement, is, on current information, unlikely to succeed in the environment where there is no effective vaccine and no curative therapy which can be offered to persons living with HIV and AIDS.”

Uganda: Influential judge echoes Museveni’s calls for harsh criminal HIV transmission laws

An influential Ugandan judge has joined President Museveni in calling for tough laws for criminal HIV transmission.

Justice David Wangutusi, director of Uganda’s Judicial Studies Institute told a judicial workshop on gender equality that HIV-positive husbands who conceal their HIV status from their wives resulting in HIV transmission, should be given harsh sentences as a deterrent.

Uganda’s president, Yoweri Museveni gave a speech in March calling for the death penalty for anyone who is found guilty of Uganda’s proposed criminal HIV transmission laws. The president’s remarks drew sharp criticism from human rights advocates.

Judge calls for tough law on HIV/AIDS
Sunday, 29th June, 2008
By Vision Reporter

A spouse who knowingly conceals his or her HIV/AIDS status and infects the partner should be prosecuted, a High Court judge has suggested.

During a workshop for judges and magistrates at Pauline Hotel in Lira recently, Justice David Wangutusi said the sentence for such people should be harsh to deter other likely offenders.

“Magistrates should be responsive to the plight of women living with HIV/AIDS. You should also be gender sensitive when handling cases in which women seek judicial redress,” Wangutusi, who is also the director of the Judicial Studies Institute, told the participants.

The two-day workshop drew judicial officers from the north and Masindi district.

It was organised by the National Association of Women Judges of Uganda and the International Association of Women Judges, with support from Irish Aid.

Wangutusi called upon the participants to approach gender issues with critical minds to effect quality and equal justice to all.

“A closer examination reveals that inspite of the existence of equality principle in Constitution, there still exists beliefs, traditions, customs and attitudes that prevent the translation of abstract rights in the law into substantive rights in reality,” Wangutusi said.

He castigated the custom of widow inheritance saying it does not recognize the widow as a human being with a mind and conscience.

“It is in conflict with the equality principle. The tradition that only males may become heirs discriminates against females,” Wangutusi observed.

Under the theme Jurisprudence of equality in a time of HIV/AIDS, judicial officers were sensitised on issues of promoting awareness within the legal fraternity and the public to the passive effects of gender discrimination and violence, the pervasive effects of gender discrimination and violence.

They were also trained in skills needed to decide cases involving discrimination against women in accordance with International Human Rights norms among other issues.

US: Idaho Supreme Court upholds HIV exposure sentence

Just found this excellent blog posting from Leonard Link, originally posted on June 12th. Click here to read the complete posting.

The Idaho Supreme Court spoke unanimously yesterday, upholding what may turn into something like a life sentence to an HIV+ man convicted under I.C. sec. 39-608 of eleven counts of “transferring body fluid which may contain the human immunodeficiency virus.” This draconian sentence was upheld in State of Idaho v. Mubita, 2008 Westlaw 2357703, where it appears that the acts in question presented little or no risk of HIV transmission, there is no evidence that HIV was actually transmitted, and the police learned the identity of the defendant through unauthorized disclosure of his medical records and forms he filled out at the health department in order to access HIV-related benefits.

US: Delaware considers mandatory HIV testing for alleged sex offenders

The US state of Delaware is proposing mandatory HIV testing of alleged sex offenders, within 48 hours of their arrest, if the alleged victim, or court, asks for it.

Unlike the existing law, the bill does not require that the state actually show some possibility that the virus may have been transmitted before requiring testing. The bill also authorizes testing around the time of arrest, instead of around the time of arraignment.


It’s not clear if this is primarily for the purposes of ascertaining whether PEP (post-exposure prophylaxis) might be necessary for the alleged victim – which can be the only ethical reason for a change in the law.

Although PEP is thought to be most effective when taken within a few hours of exposure, current guidelines have a recommended maximum window of 72 hours from exposure, so the alleged attacker would have to have been arrested immediately after for that specific purpose.

However, an HIV antibody test would not be accurate enough to detect whether the alleged offender was recently infected with HIV himself (making him much more likely to expose his alleged victim to high enough levels of HIV to transmit the virus).

In any event, PEP should be offered to all alleged victims of sexual assault regardless of the perceived status of their alleged attacker.

One wonders whether the charges would be harsher if the alleged offender did not know his HIV status and transmitted HIV, or did know his HIV status but did not?

However, the story, from the Associated Press, via delmarvanow.com, hints that the change in law is primarily for political, funding reasons.

Supporters say passage of the bill would allow the state to continue to receive up to $500,000 a year in federal grants through the Violence Against Women Act.

DELAWARE: HIV testing eyed for accused sex offenders
June 5, 2008
Associated Press

DOVER — A Delaware House committee has released a bill that would strengthen HIV testing for accused sex offenders.

The bill requires an accused sex offender to submit to HIV testing within 48 hours of arrest, in response to a request from the alleged victim or a court order.

Defendants, including those whose initial tests were negative, also would have to submit to follow-up tests as deemed appropriate.

Unlike the existing law, the bill does not require that the state actually show some possibility that the virus may have been transmitted before requiring testing. The bill also authorizes testing around the time of arrest, instead of around the time of arraignment.

Supporters say passage of the bill would allow the state to continue to receive up to $500,000 a year in federal grants through the Violence Against Women Act.

Egypt: Appeals court upholds convictions of HIV-positive gay men

Egypt continues to criminalise people living with HIV, according to Human Rights Watch.

Police and guards beat several of the men in detention. A prosecutor told one of the men that he had tested positive for HIV by saying, “People like you should be burnt alive. You do not deserve to live.”

Nine HIV-positive men have been sent to prison so far this year, simply because they were HIV-positive – apparent ‘proof’ that they were in the “habitual practice of debauchery” – or gay – which is against Egyptian law.

Full story from pinknews.co.uk.

Egypt accused of “indifference to justice and public health” as HIV convictions upheld
By Staff Writer, PinkNews.co.uk
May 30, 2008

A Cairo appeals court has upheld the sentences handed down to five men jailed as part of a ‘crackdown’ on men who are HIV positive or living with AIDS.

Nine men have been sent to prison so far.

“To send these men to prison because of their HIV status is inhuman and unjust,” said Joe Amon, director of the HIV/AIDS programme at Human Rights Watch.

“Police, prosecutors, and doctors have already abused them and violated their most basic rights, and now fear has trumped justice in a court of law.”

As in previous cases, authorities forced the detainees to undergo HIV tests without their consent.

Four of the five convicted last month tested positive.

They were charged with the “habitual practice of debauchery,” a term which in Egyptian law includes consensual sexual acts between men.

These convictions occurred after police used information coerced from men already in detention, according to the Health and Human Rights Programme of the Cairo-based Egyptian Initiative for Personal Rights (EIPR).

A lawyer for the five men has claimed they were beaten by police who tried to get them to confess to homosexual acts.

More than 115 organisations that advocate human rights and the rights of people living with HIV/AIDS have protested to the government of Egypt.

The groups signing the letter represent 41 countries on six continents, among them Human Rights Watch and Amnesty.

In a letter to the Health Ministry and the Egyptian Doctors’ Syndicate, the groups said that doctors who helped interrogate men jailed on suspicion of being HIV-positive violated their own medical ethics.

EIPR reportedly found a document from the Ministry of Health and Population titled Questionnaire for Patients with HIV/AIDS in one of the men’s case files.

It includes ‘yes’ or ‘no’ questions that doctors from the ministry apparently use to interrogate people in the crackdown about whether they had sexual relations ‘with the other sex’ or ‘with the same sex,’ and ‘with one person’ or ‘with more than one person.’

Prosecutors included the men’s answers that they had relations with the same sex as evidence of their guilt.

Malcolm Smart, director of the Middle East and North Africa programme of Amnesty International, said:

“It is unacceptable for doctors to perform forcible HIV tests, or to examine people to ‘prove’ offences that should never be criminalised.

“Doctors who engage in or enable human rights abuses are violating their most elemental responsibilities.”

The current wave of arrests began in October 2007, when police intervened between two men having an argument in the street in central Cairo.

When one of them told the officers that he was HIV-positive, police immediately took them both to the Morality Police office and opened an investigation against them for homosexual conduct.

Police demanded the names of their friends and sexual contacts during interrogations.

The two men told lawyers that officers slapped and beat them for refusing to sign statements the police wrote for them.

The men spent four days in the Morality Police office handcuffed to an iron desk, and were left to sleep on the floor.

Police later subjected the two men to forensic anal examinations designed to “prove” that they had engaged in homosexual conduct.

Such forcible examinations to detect “evidence” of homosexuality are not only medically spurious, but also can amount to torture.

On January 14, 2008, a Cairo court sentenced four of those men to one-year prison terms on “debauchery” charges.

An appeals court upheld those sentences on February 2. The five defendants whose appeal was rejected this week were tried in March.

Authorities released three other men, who tested negative for HIV, without charge, after months in detention.

Police and guards beat several of the men in detention. A prosecutor told one of the men that he had tested positive for HIV by saying, “People like you should be burnt alive. You do not deserve to live.”

The prisoners who tested positive were chained to their beds in hospitals for months. After a local and international outcry, the Ministry of Health ordered the men unchained on February 25.

“Putting these men in prison serves neither justice nor public health,” Mr Amon said.

“The Egyptian government and the country’s medical profession must act to end this campaign of intolerance.”

Angola: Criminal HIV transmission laws under consideration

Angola’s government is considering a new law criminalising ‘intentional’ HIV transmission, according to a report from PlusNews, a UNAIDS-funded HIV/AIDS news and information service for sub-Saharan Africa.

ANGOLA: Should intentional infection be a crime?
LUANDA, 26 May 2008

Proposed reforms to Angola’s Penal Code have divided opinion in the country about whether HIV-positive people who intentionally infect others with the virus should be punished.

The law under discussion calls for a sentence of between three and 10 years in prison for those knowingly pass on infectious diseases, including HIV. Some argue that the law will act as a deterrent; others say it will bring more problems than benefits.

“Criminalisation is going to backfire. It goes against human rights and the fight against discrimination, and it won’t prevent intentional infection,” Roberto Brandt Campos, a coordinator with UNAIDS in Angola, told IRIN/PlusNews.

UNAIDS and the World Health Organisation voiced their opposition to such a measure being introduced anywhere in the world in a document released in 2007, saying that it represented a step backwards in HIV prevention efforts.

This is not the first time such a law has been tabled in Angola: the country introduced legislation relating to HIV and AIDS in 2004 but a measure calling for the criminalisation of purposeful infection was among those not included.

Victim and executioner

According to Campos, one of the main difficulties with such a law is determining the intention to infect. In his view, proving transmission from one specific individual to another is already difficult, and proving that an infection was intentional even more so. “Transmitting the virus out of negligence is different from transmitting it in on purpose,” he stressed.

Carolina Pinto, an activist with the non-governmental organisation Luta pela Vihda (Fight for Life in Portuguese), believes those who infect their partners on purpose should be punished, but acknowledges that the line between negligence and intention is a thin one.

“Doing it on purpose is different from not telling, but those who have the virus must accept their condition and protect their partner’s life,” she said, adding that both partners should take some responsibility for protecting themselves.

Even so, Pinto, who is HIV positive, said there were some behaviours that suggested deliberate transmission. “If it happened once, okay; but if the person continues to practice unprotected sex even while knowing that he or she is infected, I think it’s on purpose,” she told IRIN/PlusNews.

In cases of sexual transmission, Campos worries that such a law would only deepen the damaging perception that people who contract the virus are victims and those who give it to them are their executioners.

“There is no such thing as a victim; people are the subjects of their own life stories,” Campos said. “Sex is a two-person relationship, in which responsibility is necessarily shared.”

In cases of mother-to-child HIV transmission, Campos said criminalisation could set a precedent for children to take their parents to court. He cited a case in Florida, in the United States, where a boy sued his mother for giving him HIV. “Parents will feel intimidated about revealing their condition. All this does is feed the chain of stigma and discrimination.”

Unintended consequences

In a country where people often don’t reveal their HIV-positive status out of a very real fear of rejection, Campos argued that criminalisation would only heighten such fears, and mentioned the example of an HIV-positive woman who became an activist and went public on television. The residents of her neighbourhood did not want their district to be shown in the television report.

“With this level of discrimination, how can you expect someone to have the courage to take the test and then tell their partner?” he said.

Criminalising intentional transmission could also have the unintentional affect of discouraging voluntary testing. “People are going to think: ‘if there’s a law that says I’m going to be penalised, it’s better not to know my HIV status’,” Campos said.

António Coelho, director of the AIDS Service Organisation Network (Anaso), believes a more practical approach to breaking the chain of HIV transmission is to counsel people on how to change their behaviour.

Fiji: Updated: Moral, legal panic after one man linked to two women’s HIV infections

Update: 28th April. There have been fewer than 260 HIV diagnoses in Fiji since records began (I originally quoted a source claiming fewer than 30), so it must come as something of a shock for Fijians to have to come to terms with the fact that an HIV-positive man is not disclosing his status before having unprotected sex.

The hunt is now on for a 33 year-old Fijian man who allegedly transmitted HIV to two women. The Fiji Times has published four stories since Friday covering the issue.

Update: 28th April. In fact, Fiji now seems to be hunting down six HIV-positive individuals.

Interestingly, according to one of the articles, reckless or intentional HIV transmission (or exposure) is not a crime in Fiji, although the transmission of HIV via shared needles is.

Police spokesman Corporal Josaia Weicavu said wilfully passing on the HIV virus had not been criminalized.

Police can only advise women in Labasa to be careful when engaging in sexual activity after health and police authorities mounted a search in recent weeks for a 33-year-old man of Labasa.

Consequently, Reverend Sekove Veisa, head of a Methodist church circuit, has “called for lawmakers to criminalise the wilful spread of the disease by anyone.”

Highlights of the four news stories from The Fiji Times are below, followed by a brief report from the Australian Broadcasting Corporation on the missing six.

Hunt for HIV man
SERAFINA SILAITOGA
Saturday, April 19, 2008

HEALTH authorities are on the hunt for a HIV positive patient who they believe is engaged in promiscuous sex and deliberately spreading the disease.

Acting general manager community health North Doctor Pablo Romanik confirmed the search for the 33-year-old Fijian man started early this month after two women who were admitted to the Labasa Hospital tested positive for HIV (human immunodeficiency virus).

Dr Romanik said what worried them was that the patient did not have a stable address and efforts to find him the past three weeks were unsuccessful.

“We are looking for this man to counsel him. The reason for our search is because he is the same man identified by his two ex-girlfriends who were admitted and tested HIV positive,” he said. “All we want to do is counsel him and help him. The fact that he does not have a stable address is of great concern because he could continue to have other partners and spread the disease.”

Dr Romanik said the second woman was admitted in January this year after health officials carried out a blood test on her which tested HIV positive.

He said they interviewed the woman who then told them about her partner who is a known HIV positive patient.

“That’s when we found out, and strongly believe, that she contracted the disease from him because he is a known patient who was tested positive in 2004 when he came to donate some blood to the hospital,” Dr Romanik said.

“The first case involved his other girlfriend who was also admitted last year and tested HIV positive. She also identified the same man as her boyfriend.”

Stop, HIV lover told

Sunday, April 20, 2008

THE head of a Methodist Church circuit has pleaded with a HIV patient being hunted by health authorities to stop infecting women.

And Reverend Sekove Veisa, who leads the Macuata circuit, called for lawmakers to criminalise the wilful spread of the disease by anyone.

[…]

Mr Veisa said the fact that the HIV positive man was deliberately infecting women was hard to fathom.

He said the church had a program that dealt with such issues as HIV and urged the man not to destroy lives.

Police assistant spokesman Corporal Josaia Weicavu said he had to clarify whether wilfully spreading the disease was a criminal offence.

Isolate HIV suspect
AMELIA VUNILEBA
Sunday, April 20, 2008
Update: 4:47PM

HEALTH authorities have the power to isolate people that have contracted HIV, police said today.

Police spokesman Corporal Josaia Weicavu said wilfully passing on the HIV virus had not been criminalized.

Police can only advise women in Labasa to be careful when engaging in sexual activity after health and police authorities mounted a search in recent weeks for a 33-year-old man of Labasa.

Acting general manager community health North Doctor Pablo Romanik said the search for the man started early this month after two women who were admitted at the Labasa Hospital tested positive for HIV.

The ministry has identified 28 HIV positive cases since 1995.

Of this, there is one case under the age of 20, 15 cases between the ages of 20 to 29, three cases between the ages of 30 to 39, seven between 40 and 49 and two cases over the age of 50.

Out of this, 40 per cent are males and 60 per cent females. Fijians top the list at 84 per cent, Indo-Fijians at 8 per cent and 8 per cent for other races.

No laws on HIV

Monday, April 21, 2008

WHILE there are no laws to charge people living with HIV and wilfully spreading the virus, the Ministry of Health has powers to isolate these people.

Police assistant spokesman Corporal Josaia Weicavu said the act of knowingly passing on the HIV virus was not a criminal offence yet.

“It’s not criminalised yet, however, the Ministry of Health has powers to isolate these people who have HIV,” said Cpl Weicavu.

He said people could be charged if they were caught passing on the virus through needle injections. However, this did not apply to transmission of the virus through sex.

Attempts were made to get comments from interim Health Minister Jiko Luveni.

[…]

Ministry of Health permanent secretary, Doctor Lepani Waqatakirewa, said health officials could search for HIV positive patients for counselling.

Fiji seeks missing HIV patients
Updated April 28, 2008 04:25:33

Fiji health officials are trying to find six people with HIV in the country’s northern division.

The Division’s acting Chief Medical Officer for Community Health told Fijilive there are 15 known AIDS cases on record in the north, but that health officials only have addresses for nine of those individuals.

The youngest known HIV patient in the North is a 20-year-old student in Labasa.

Fiji has reported 259 HIV cases since 1989, with more than 15 reported cases last year alone.