On 17 February 2011, Denmark’s Minister of Justice announced the suspension of Article 252 of the Danish Criminal Code. This law is reportedly the only HIV-specific criminal law provision in Western Europe and has been used to prosecute some 18 individuals.
New Zealand: Charges dropped in criminal HIV transmission case
All charges against a Wellington man accused of not disclosing his HIV-positive status prior to unprotected sex with his female partner who subsequently tested HIV-positive have been dropped because police are unable to trace the complainant.
Not only did Justice Simon France drop the charges of “wounding with intent to cause grievous bodily harm” but also ordered that the man’s name be suppressed.
Jo Murdoch, a lawyer from the Public Defence Service, successfully argued in court that the man’s identifying particulars should be suppressed.
Justice Simon France said the issue became whether the man’s HIV status – a particularly private and sensitive medical fact – should be exposed when grave doubts had been raised about the alleged victim’s credibility.
The case did not have the public interest element of a person accused of having put multiple partners at risk or having risky casual sex. Also, the alleged crime was irrelevant to his employment and his contact with the public generally. Taken together the circumstances outweighed the usual principle that justice should be carried out publicly, Justice France said.
Details of the case are sketchy and come from a single story in today’s Dominion Post via Stuff.co.nz.
(Pdf of webpage here if link no longer works.)
Police said he did not tell his partner he had HIV, the couple had unprotected sex and she contracted the disease. The man said his partner of several years knew of his condition and that they always had protected sex.
Shortly before the trial was due, information came to light which, if true, would have affected a court’s view of her honesty. Police were unable to find her and thought she was hiding from them. They had wanted to check the information before expensive tests to see if the couple had the same strain of HIV.
The Crown offered no evidence against the man, resulting in a discharge which amounted to an acquittal.
Denmark: Justice Minister suspends HIV-specific criminal law, sets up working group
Denmark’s Justice Minister Lars Barfoed has today suspended Article 252 of the Criminal Code – the so-called ‘HIV law’ – pending an inquiry by a government working group to consider whether the only HIV-specific law in Western Europe should be revised or abolished.
The move was announced today in a press release by AIDS-Fondet (AIDS Foundation) and covered in the gay magazine, Out and About. (Both of these are in Danish, and so I’m relying primarily on Google Translate, although colleagues in Denmark have also been in touch to tell me the exciting news.)
Denmark prosecuted its first case in 1993, but the Supreme Court found in 1994 that the wording of the existing law (“wantonly or recklessly endangering life or physical ability”) did not provide a clear legal base for conviction. The phrase “fatal and incurable disease” was added in 1994, and HIV was specified in 2001.
According GNP+’s Global Criminalisation Scan here have been at least 18 prosecutions: at least one failed due to the accused committing suicide. At least ten involved non-Danish nationals, including seven people of African origin. At least eleven convictions for either sexual HIV exposure or transmission are reported. The maximum prison sentence is eight years.
Today’s announcement came about as a result of a Parliamentary question from opposition Unity MP, Per Clausen on behalf of the Parliamentary Legal Committee.
“The Minister should state whether the Ministry [of Justice] will consider changing or eliminating the special clause in the legislation that criminalises [HIV-positive individuals for] unprotected sex with uninfected [individuals] in light of the significantly improved treatment options for HIV-positive people, in particular since treatment is able to reduce the risk of infection to [near] zero.”
In his reply, Justice Minister Lars Barfoed explains the history of the legislation and then quotes the Health Protection Agency about HIV ‘risk’ and ‘harm’.
“Modern combination therapy reduces HIV in the blood by more than 99% during the first weeks of treatment, whereby patients’ general condition improves. The strongly reduced amount of HIV in blood and tissue fluids also greatly reduces the risk of transmission from an HIV-positive person on antiviral therapy. This greatly reduced risk is difficult to quantify but considering the risk to be near zero is a theory that some doctors have put forward, but there is no national or international consensus that about this…The life-expectancy of someone with HIV is no different from the age- and gender-matched background population. HIV is, in other words, not in itself fatal if treated in time; medication taken regularly; and there are otherwise no complications from other diseases, etc. Timely treatment is now so effective and well tolerated, that 85-90% of patients can live normal lives if they take their medication daily. It is the 5-10% of patients who are diagnosed late who still experience a substantial excess mortality and morbidity. [However] HIV is still incurable.”
He goes on to say that the law as it is currently written – casting HIV as a life-threatening condition and criminalising unprotected sex by a person with HIV – appears to be obsolete and that the working group must consider whether to amend, or totally rewrite, Article 252.
The working group will comprise Justice Minister Barfoed and Interior Affairs and Health Minister Bertel Haarder with representatives from the Ministry of Interior, Ministry of Health, the Health Protection Agency and the Prosecutor General. It is believed they will come to a conclusion later this year. (Update Feb 22: My contact at AIDS-Fondet tells me this process will take place much sooner, within the next two months.)
In their press release AIDS-Fondet notes that it has been working on changing the law for years and so this development is very welcome.
We hope this suspension is the beginning of the end of the so-called HIV Criminal Law. This criminal provision is in itself a barrier to prevention, and there has also long been a need for the improved treatment of HIV-people to be reflected in the Penal Code, says Henriette Laursen, AIDS-Fondet’s director.
Two of Denmark’s foremost HIV experts, Professor Jens Lundgren and Professor Jens Skinhøj, have previously called for the law’s abolition.
US: Michigan bite man charged under anti-terrorism laws gets 11 months probation in plea deal (update-4)
Update: Dec 8th 2010
Macomb County Circuit Court Judge Peter Maceroni today sentenced the 46 year-old Michigan man once charged under terrorism laws for allegedly biting his neighbour to eleven months on probation after pleading guilty to a single assault charge.
“This was nothing more than gay-bashing,” attorney James L. Galen Jr. told Fox 2. “The only reason my client took a plea deal was because of his health, and one of the witnesses didn’t show up for the defense.”
Mlive.com’s headline, ‘All bark, small bite: Probation for Clinton Twp man with HIV once charged with bioterrorism’ can only hint at the ridiculousness of the charges and the pain and financial cost suffered by this man. In the end, probation is still too much of a penalty, and it is far too late to repair the damaged reputations of both the man accused and HIV itself.
Update: Nov 5th 2010
Todd A Heywood of the Michigan Messenger, who has been following the case of the 46-year-old Michigan man who was charged with terrorism after biting his neighbour in October 2009, reports that the man has reached a plea deal on the two felony charges that remained following the rejection of the bioterrorism charges in June 2010.
Daniel Allen was originally charged with one count of bioterrorism, one count of assault with intent to maim and one count of assault with intent to do great bodily harm less than murder. Macomb County Circuit Court Judge Peter Maceroni rejected the bioterrorism charges in June, leaving Allen facing the two, ten-year felonies.
The charges stem from an October 2009 altercation between Allen and his neighbor Winfred Fernandis, Jr. Fernandis alleges that Allen attacked him without provocation, while Allen says the incident was part of a long running series of anti-gay harassment by Fernandis and his family. Fernandis says Allen bit his lip during the fight.
Under the plea deal, Allen has agreed to plead no contest to assault with intent to maim. Under the deal, if Allen successfully concludes a probation period, the charge will be changed to a misdemeanor of aggravated assault and the second charge, assault with intent to maim would be dismissed.
But Fernadis, the victim, told the Daily that he might back out of the agreement. He specifically told the newspaper he would be OK with the deal if Allen moved from the home he owns in Clinton Township.
Allen faces a sentencing hearing in front of Maceroni Dec. 8.
Update: Nov 20th 2009
Journalist Todd A Heywood reports in another Michigan Messenger article that
HIV activists from the group Michigan Positive Action Coalition have issued a press statement encouraging people with infectious diseases, including H1N1, HIV or the common cold, to call the Macomb County prosecutor and “voluntarily turn themselves in” to be charged with terrorism. In the statement issued by Mark Peterson, a director for the group, activists called the charges leveled against 44-year-old Clinton Township resident Daniel Allen “ridiculous.”
Update: Nov 18th
Journalist Todd A Heywood has published a second article in the Michigan Messenger that includes an interview with the man’s lawyer, James Galen Jr.
The story has also been picked up by Michael Carter at aidsmap.com.
Original post: Nov 10th
Last week I reported on the case of an HIV-positive gay man in Michigan whose HIV status was revealed in a TV interview and who is now facing serious criminal charges for biting his neighbour during a fight.
Todd A Heywood of the Michigan Messenger has followed up on this story and discovered that one of the charges the man faces is a Kafkaesque terrorism charge – possession or use of a harmful device – that would create a legal precedent in Michigan if the charges actually stick.
The piece also includes an interview with a Republican State Rep. Rick Jones, who sits on the Judiciary Committee, and who believes that spitting should remain criminalised.
Jones said during an interview that if someone with HIV spits at a police officer while screaming ‘I hope you get AIDS,’ that that person should be charged with a crime, because that shows an intent, even if the mode of possible transmission via spitting “would be a very difficult way to transmit” the virus. He said the intent to spread the disease is the issue, not necessarily the mode.
The entire article is posted below, with Todd’s permission.
State lawmakers question terrorism charges for HIV-positive man
Bite during fight called use of a ‘harmful device’ under anti-terror lawBy Todd A Heywood, Michigan Messenger
An HIV-positive Macomb County man is facing charges created under Michigan’s 2004 terrorism laws for biting another man in a neighborhood scuffle. That, HIV advocates, state lawmakers and legal experts say is “cowardly” and “nonsense” and increases ignorance and stigma surrounding the virus.
State Rep. Mark Meadows, who chairs the House Judiciary Committee said in an interview he does not believe the legislature had the neighborhood fight situation in mind when it drafted the terrorism laws. The Democrat from East Lansing also said he thought the prosecution was “silly.”
“Is this a dangerous instrumentality? It’s like saying that because I breathed on you and I have tuberculosis and we are fighting, that somehow because I have this disease it suddenly becomes more than just that I have this disease,” said Meadows, a former assistant attorney general. “The other charges are more than sufficient to deal with the issues involved.”
In the end, Meadows believes that the circuit court judge will toss out the terrorism charge, which he said was “a stretch.”
A fight among neighbors
The case arose out of an Oct. 18 fight between 44-year-old Daniel Allen and his neighbor Winfred Fernandis Jr. What happened that day is disputed.
According to a report from Clinton Township Police Department, Fernandis said Allen jumped him without provocation when he went to retrieve a football neighborhood kids accidentally threw onto Allen’s yard. Fernandis, according to the police report, said Allen “hugged up” to him and began to bite him. Fernandis suffered a bite wound on the lip so severe, police say, it went all the way through the lip. Fernandis sought medical treatment and the wound was sewn shut.
Allen, however, alleges that Fernandis, his wife Denise and Fernandis’ father assaulted him, and he does not recall biting the younger Fernandis. He too sustained injuries during the incident, and his lawyer during a Nov. 2 hearing presented 37 photographs of injuries, including bite marks to Allen’s body. Allen and his attorney maintain Allen was the victim of a hate crime because Allen is gay. Since the incident, Allen has filed a personal protection order against the Fernadis family and a criminal complaint with the township police.
Following the incident, police were called in and after a brief investigation, placed Allen under arrest and charged him with two crimes: aggravated assault, a misdemeanor charge which carries a punishment of up to one year in jail and/or $1,000 fine and assault with intent to maim, a 10-year felony.
Macomb County Prosecutor Eric Smith refused to return multiple messages left for him. Allen’s attorney, James Gallen, did not return calls.
HIV Becomes the Feature of the Story
The story, a man severely biting another man, drew the attention of the Detroit-area media, and Fox 2 News soon had Allen on video admitting he was HIV-positive.
That admission lead Smith, a Democrat, to say he would seek additional charges. On Nov. 2, Smith’s office amended its complaint to add a charge of possession or use of a harmful device. That law is a 25-year felony and was part of a 2004 package of terrorism laws created by the legislature in the wake of the Sept. 11, 2001, attacks.
The law makes it a crime to have a harmful device, which is defined as either biological, chemical, electronic or radioactive. Smith’s office is arguing that Allen being infected with HIV was “a device designed or intended to release a harmful biological substance,” and that his bite was thus an attempt to spread HIV.
Smith’s office is relying on a Michigan Court of Appeals ruling in a case of an HIV-positive, and hepatitis B infected prisoner who spit at prison guards during an altercation in the prison. In that case, People v. Antoine Deshaw Odom, the three judge panel found:
We therefore conclude that HIV infected blood is a ‘harmful biological substance,’ as defined by Michigan statute, because it is a substance produced by a human organism that contains a virus that can spread or cause disease in humans.
The three judge panel was silent on whether the hepatitis infection weighed in as a factor as a harmful biological substance. As a result of this finding, the court upheld a stricter sentencing score for Odom. In 2008, the Michigan Supreme Court refused to hear an appeal on the matter, upholding the Appeals Court decision.
On Nov. 2, District Court Judge Linda Davis concurred with Smith’s office and bound Allen over to Macomb Circuit Court to face the three charges.
According to The Macomb Daily, the judge said:
“[Allen] knew he was HIV-positive, and he bit the guy,” Davis said from the bench. “That on its own shows intent.”
Criminalizing HIV with traditional, non-HIV specific laws not new
HIV experts say it is a near impossibility to spread HIV through a human bite.
The Centers for Disease Control and Prevention in Atlanta said it has one case on record where it believes HIV was transmitted through a human bite. But the case, out of South Carolina, is of an older man who claims to have had no other risk factors except being bit by a sex worker who was infected with HIV. That sex worker claims the man refused to pay for her sexual services, and she bit him in an attempt to get her money.
But, even allowing for that case, experts say there are other factors to consider. In 2003, the most recent year available for statistics on the CDC website, about 1 million people in the United States were living with HIV/AIDS, putting the prevalence of HIV transmission via biting at .000000001 percent. In contrast, an online search of news reports finds hundreds of media reports of biting incidents involving HIV-positive people.
“Even if you accepted that as a transmission case,” said Catherine Hanssens, executive director of the New York City-based Center for HIV Law and Policy. The charges against Allen, she said, simply aren’t warranted. “It’s just nonsense. It’s cowardly. It’s the kind of thing that keeps kids [with HIV] out of day care and camps and allows kids [with HIV] to be kicked out of karate case.”
She said cases like Allen’s are proof that the nation is failing to address the epidemic with common sense. “It’s continuing the boogey-man characterization of people with HIV,” she said.
“This troubles me very much,” says Lambda Legal HIV Project Director Bebe Anderson. “I think it is a very dangerous thing for prosecution to proceed with a charge or an enhanced charge based on a person’s HIV status. Typically these prosecutions are based on ignorance about HIV transmission. These prosecutions add to ignorance in the general public about HIV transmission, and they certainly add to the stigmatization of people living with HIV.”
The move to charge Allen with terrorism-related charges, Anderson said, was deeply troubling.
“Its a very dangerous notion that somebody who has a physical condition such as H1N1 or HIV or some other virus, that, that person then can then be charged with having a harmful biological substance and then if they are out there in contact with other people and they are putting other people at risk it is troubling.” said Anderson. “That’s not something that is legitimately criminalized and these prosecutions start us in that direction in a very dangerous way, I think.”
Anderson said to her knowledge this is the first time she has seen a terrorism law used in connection with an HIV-infected persons prosecution. She said she believes the terrorism law is being misapplied, and that Allen’s defense is going to have to make basic information about HIV and its transmission clear to the courts.
“I think it is very important to try to get in front of the judges and the prosecution accurate information about HIV,” Anderson said. “I think what happens is that these prosecutions are fueled by ignorance, then unfortunately that ignorance gets compounded because the judge makes a ruling or the jury makes a ruling based on fear and myths of HIV and not the actual risk posed by particular conduct.”
Hanssens and Anderson said that the trend of charging HIV-positive people with charges based on their HIV status is nothing new, but both say there has been an increase in cases in recent years.
“What seems new is there seems to be a sudden uptick in the number of these type of cases in the last year or so,” Anderson said.
HIV activist Mark Peterson, from Michigan POZ Action said he is also concerned about this case. In an email statement to Michigan Messenger, Peterson said:
“This sort of conflict is sad anytime it happens. At the same time, charging a person with possession or use of a harmful device simply because they have an infection, especially where the is NO scientific evidence of HIV ever being spread this way, is just another example of how our laws are based on fear and ignorance and not science…Its interesting to see how the impact of stigma and homophobia that still surrounds HIV shows up in our legal system.”And Meadows is not the only legislator sounding off on the case.
State Sen. Hansen Clarke, a Detroit Democrat and a vocal advocate on behalf of people living with HIV/AIDS, said in an interview that the charges are out of proportion.
“I think we need to put this in perspective in light of the tragic events at Fort Hood,” Clarke said. “That should be investigated as terrorism. The magnitude of the instances is not even similar.”
He said the impact of such a prosecution was “harmful” to addressing HIV stigma in the state.
“I don’t think our legal system should treat everyone that has a disease that could be communicated to some one else differently,” Clarke said.
State Rep. Rick Jones, a Republican from Grand Ledge who sits on the Judiciary Committee, said the terrorism charge was likely not appropriate.
“If it was a fight and people were biting each other I would not think that is an appropriate charge,” said Jones, a former Eaton County sheriff. “I think you should able to be charged with attempt to transfer HIV if it can be shown in a court of law you made a genuine attempt to transfer [it].”
Changes in law deemed necessary
While the use of non-specific HIV laws to criminalize those infected is not a new trend, neither are the laws to criminalize HIV. Michigan passed a law in 1988 which makes it a felony for a person who knows he or she is infected with HIV to engage in sexual penetration, however slight, without disclosing that status first.
In April, Michigan Messenger highlighted the story of Michael Holder who spent eight years in a Michigan prison for allegedly failing to disclose his HIV-status to his partner. The Iowa Independent, Michigan Messenger’s sibling site, has closely followed the criminal prosecution and conviction of Nick Rhoades, who was convicted of failing to disclose his HIV status and sentenced to 25 years in prison. He was released in September and is serving a five-year stint on probation after a judge reconsidered his harsh sentence.
Federal law mandated all states to certify each had a law in place to criminally prosecute people with HIV who did not disclose that to people before engaging in behavior which might spread the virus. That mandate was made in 1990 and by 2000 all 50 states had certified.
But two decades into the epidemic, with science getting a better understanding of HIV and how it is spread, lawmakers are beginning to say the current laws need to be revisited.
Jones said during an interview that if someone with HIV spits at a police officer while screaming ‘I hope you get AIDS,’ that that person should be charged with a crime, because that shows an intent, even if the mode of possible transmission via spitting “would be a very difficult way to transmit” the virus. He said the intent to spread the disease is the issue, not necessarily the mode.
Jones, who also once served as a jail administrator, was tasked with knowing universal precaution rules inside and out. He also added that the law should be expanded to include other diseases, such as tuberculous and hepatitis.
Jones discussed Michigan’s 20-year-old disclosure law which makes it a crime for an HIV-positive person to engage in sexual penetration, however slight, without first disclosing their HIV infection. He was surprised to learn the law did not address sharing needles, but including activities that cannot spread HIV, such as sex toys. Asked if he believed it was time to revisit the disclosure law, he said: “Yes. Yes, I would agree with that. But I might add things like needle sharing, and I might subtract things to make more of an intent crime.”
Evidence: Claims that phylogenetic analysis can prove direction of transmission are unfounded, say experts
I’m reproducing this news article I wrote for aidsmap.com in case anyone hasn’t seen it, because it is a really important issue. Claiming that phylogenetic analysis is so reliable as to be able to ‘prove’ who infected who in a criminal court case is reckless and somewhat self-serving.
A report from the United States published last week in the Proceedings of the National Academy of Sciences claims to show for the first time that direction of HIV transmission from one individual to another for use as evidence in criminal trials can reliably be established by phylogenetic analysis. However, international experts in phylogenetics who have acted as forensic advisors in criminal courts tell aidsmap.com that the report “draws unwarranted conclusions”.
The report, co-authored by Michael Metzker, associate professor at the Baylor College of Medicine Human Genome Sequencing Center and David Hillis, a professor of evolutionary biology at the University of Texas, details the phylogenetic analysis methodology used in two criminal HIV transmission cases in the United States, in Washington State in 2004 and Texas in 2009, respectively.
These cases were only the second and third times that phylogenetic analysis was used as evidence in a criminal prosecution in the United States, despite at least 350 convictions under HIV-specific and/or general criminal laws for HIV non-disclosure, alleged exposure and/or transmission since prosecutions began in the mid-1980s (CHLP, 2010). Of note, both of these cases involved allegations of multiple heterosexual transmissions from a single source. Such allegations are extremely rare in criminal cases.
Phylogenetic analysis requires the use of complex computational tools to create a hypothetical diagram (known as a phylogenetic tree) that estimates how closely related the samples of HIV taken from the complainant(s) and defendant are likely to be in comparison to other samples.
The report refers to several recent studies (including a 2008 study from Keele and colleagues) which suggest to the authors that a “significant genetic bottleneck” may occur during HIV transmission, and that at least three-quarters of infections may result from a single virus. It also notes that since HIV evolves rapidly following initial infection, this results in “increased diversity of HIV sequences within a newly infected individual.”
However, the report argues that if blood samples are taken from the accused and complainant(s) “shortly after a transmission event” the population of viral sequences in one individual would be expected to be more closely related to the population in the other(s) than other populations of viral sequences used for comparison. This is known as a “paraphyletic relationship.” The paper then suggests that “paraphyly provides support for the direction of transmission and, in a criminal case, could be used to identify the index case (i.e., source).”
In both cases, the investigators were blinded as to the identity of the accused and the complainants, which was only revealed in court once they had provided their report to the prosecution. Again, in both cases, the sample they identified as being the source of infection was that of the accused. It is unknown how much weight the judge and jury gave to the phylogenetic reports, but it is known that the prosecution provided a great deal of supporting evidence – including, in the Texas case, contact tracing and HIV testing of most of the complainants’ prior sexual partners – and that it was the totality of such evidence that led to guilty verdicts and lengthy prison sentences in both cases.
The paper and its assertions have been widely disseminated via a press release and several articles primarily aimed at the scientific community. Such articles include quotes from the investigators that suggest their methods are unquestionably sound and it was this evidence alone that led to the guilty verdicts. “This is the first case study to establish the direction of transmission,” Professor Metzker was quoted in an AFP story with the headline ‘ Lab detectives use science to nab HIV criminals’.
He asserted to the American Statesman that “[our analysis] provided sound scientific evidence of the direction of transmission, and from that we could identify the source.” The article also quotes the main prosecutor in the Texas case, who characterises phylogenetic analysis as “good evidence”. Of note, the defence attorney in the case is quoted as saying they were unable to find an expert to testify in court against the reliability of Hillis and Metzker’s findings.
“It made a lot of difference in trying the case because we couldn’t find an expert for our side,” he said.
However, Professor Metzker’s claims and the paper’s assertion that he and his colleagues have established that their methodology is both a new and reliable method of proving the direction of transmission has been questioned by several international experts contacted by aidsmap.com. All of the experts have served as witnesses in criminal trials outside of the United States.
These experts all agree that phylogenetic analysis remains an informed but sometimes imperfect estimate of the relationship between viruses. Although there are a variety of methods by which it is possible to increase the confidence that the samples are very closely related in comparison to other samples, there could never be complete confidence that the defendant infected the complainant(s) based on phylogenetic analysis alone.
Anne-Mieke Vandamme, a professor at Leuven Catholic University and Rega Institute in Belgium, has serious reservations regarding the paper’s assertions. “This paper draws unwarranted conclusions,” she tells aidsmap.com. “There is still the possibility that there is a missing link, a consecutive transmission with an intermediate missing link. I would only use such paraphyletic clustering to exclude a direction of transmission. The elimination of all other possible contacts is something to be done outside the phylogenetic analysis.”
Jan Albert, a professor at the Karolinska Institute and Karolinska University Hospital in Sweden, tells aidsmap.com that “the study suggests, but does not prove, transmission between the examined persons. The main reason for the caveat is that the analyses do not exclude the existence of unsampled persons belonging to the same clusters. The paraphyly does not exclude this possibility. In light of this it is surprising that only 20 local controls were investigated in the Washington case and none in the Texas case.”
Thomas Leitner, staff scientist at Los Alamos National Laboratory in the United States, tells aidsmap.com that the methodology described in the paper to test the hypothesis of direction of transmission is not, in fact, new, and that along with co-author Walter Fitch he published a paper outlining a similar methodology eleven years ago. (Leitner T, Fitch WM 1999) He adds that his research suggests that even when all persons involved in an alleged transmission chain are sampled, it may still be the case that the two closest samples in a phylogenetic tree are two individuals who may not have ever met.
Professor Vandamme is also lead author of a paper currently in press with The Lancet Infectious Diseases along with several authors including Professor Albert and Dr Anna Maria Geretti, of University College London Medical School, Royal Free Hospital, in London, which highlights the substantial risk of miscarriages of justice based on a flawed view of the science behind phylogenetic analysis. It concludes, in concurrence with a briefing paper co-authored by Professor Vandamme and Dr Geretti and published by NAM and NAT in 2007, that the only ‘safe’ use of phylogenetic analysis in criminal HIV transmission cases is to exonerate the accused.
A fuller discussion of how phylogenetic analysis and other evidence can – and cannot – be used to establish the fact of transmission from the accused to complainant(s) in a criminal case can be found in the ‘Proof’ chapter of NAM’s new international resource, HIV and the criminal law.
References
Scaduto DI et al. Source identification in two criminal cases using phylogenetic analysis of HIV-1 DNA sequences. Proceedings of the National Academy of Sciences, published online before print November 15, 2010, doi: 10.1073/pnas.1015673107, 2010.
Abecasis AB et al. Science in court: the myth of HIV ‘fingerprinting’. Lancet Infectious Diseases, 2010 (In Press).
Center for HIV Law and Policy (CHLP) Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions, Vol.1, CHLP’s Positive Justice Project, First Edition, Fall 2010.
Leitner T, Fitch WM The phylogenetics of known transmission histories. Pp. 315-345 in K. A. Crandall. Molecular Evolution of HIV. Johns Hopkins, Baltimore, MD 1999.
US: Majority of gay US men support criminal non-disclosure laws
The overwhelming majority (70%) of HIV-negative and untested men (69%) in the United States support prosecutions for not disclosing known HIV-positive status before sex that may risk HIV transmission, according to a new study by Keith J. Horvatha, Richard Weinmeyera and Simon Rosser at the University of Minnesota, Minneapolis. Even more disturbing is the fact 38% of HIV-positive men endorsed criminalisation.
The most worrying finding is that suppport of non-disclosure laws strongly suggested a reliance on disclosure as an HIV prevention method. As I have discussed in HIV and the criminal law, this is unreliable and problematic.
There’s a summary of the study’s findings at aidsmap.com and the full text article can be downloaded here.
Canada: New report calls for prosecutorial guidelines to establish ‘significant risk’
A new report, launched at AIDS 2010 in Vienna last month, recommends that the Ontario Ministry of the Attorney General establish a consultation process to inform the development of prosecution guidelines for cases involving allegations of non-disclosure of sexually transmitted infections, including HIV.
HIV Non-Disclosure and the Criminal Law: Establishing Policy Options for Ontario contributes to the development of an evidence-informed approach to using the criminal law to address the risk of the sexual transmission of HIV infection in Ontario, and offers the most comprehensive, current discussion of the criminalisation of HIV non-disclosure in Canada.
The report was triggered by the absence of policy-based discussion of this issue amongst key decision makers in government and by community concerns about the intensified use and wide reach of the criminal law in circumstances of HIV non-disclosure.
In Canada, people living with HIV have a criminal law obligation to disclose their status before engaging in activities that pose a “significant risk” of HIV transmission. The report emphasises that uncertainties associated with that obligation and interpretations of the obligation that are not informed by current scientific research on HIV transmission risks are foundational to current problems in the use of the criminal law to regulate the risk of the sexual transmission of HIV and explores various forms of evidence relevant to a thorough policy consideration of the use of the criminal law in situations of HIV non-disclosure in sexual relationships.
York University has produced a 1200 word pdf summary of the report which I’m including in its entirety below. A pdf of the entire report can be downloaded here.
Title: The criminal law about sex and HIV disclosure is not clear
What is this research about?
According to the Supreme Court of Canada, HIV-positive people are required to disclose their status before engaging in sexual activities that pose a “significant risk” of transmitting HIV to a sex partner. Canadian courts, however, have yet to clearly define what sex acts, in what circumstances, carry a “significant risk.” This has led to an expansive use of the criminal law and created a problem for people with HIV—they can face criminal charges even though the law is not clear about when they must tell sex partners about their HIV. For example, people with HIV who are taking anti-HIV medications are much less likely to transmit HIV during sex, even where no condoms are used. But Ontario police and Crown Attorneys continue to interpret “significant risk” broadly. In fact, charges have been pursued in cases where, on a scientific level, there is little risk of HIV transmission.
This uncertainty has created problems not only for people with HIV but also for public health staff, and health care and social service providers. It has challenged these front-line workers in their attempts to counsel and support people with HIV. It has also caused many people with HIV to be further stigmatized. The media, in its coverage of these cases, has tended to exaggerate the risk of HIV transmission at a time when more and more experts have come to think of HIV as a chronic and manageable infection.
Despite these problems, and over 100 criminal cases in Canada, there has been a lack of evidence to inform public discussion about this important criminal justice policy issue. In Ontario, policy-makers have not weighed in publicly on the criminalization of people who do not reveal to their sex partners that they have HIV.
What did the researchers do?
A project team, led by Eric Mykhalovskiy, Associate Professor in the Department of Sociology at York University, set out to explore how the criminal law has been used in prosecutions involving allegations of HIV non-disclosure. The team included members of community organizations in Toronto and front-line workers, some of whom are living with HIV. Their goal was to create evidence and propose options to guide policy and law reform. They created the first national database on criminal cases of HIV non-disclosure in Canada. Professor Mykhalovskiy interviewed over 50 people with HIV, public health staff, and health care and social service providers to find out how the criminal law is affecting their lives or their work—another Canadian first.
What did the researchers find?
From 1989 to 2009, Canada saw 104 criminal cases in which 98 people were charged for not disclosing to sex partners that they have HIV. Ontario accounts for nearly half of these cases. Most of the cases have occurred since 2004. Half of the heterosexual men who have been charged in Ontario since 2004 are Black. Nearly 70% of all cases have resulted in prison terms. In 34% of these cases, HIV transmission did not occur.
Looking at the cases in Ontario and Canada, the researchers found inconsistencies in the evidence courts relied on to decide whether a sex act carried a significant risk of HIV transmission. They also found inconsistencies in how courts have interpreted the legal test established by the Supreme Court, and inconsistencies between court decisions in cases with similar facts. It appears, in some cases, that police and Crown prosecutors have not been guided by the scientific research when deciding whether to lay charges or proceed with a prosecution.
Because it is important to understand the scientific research when assessing whether there is a “significant risk” of HIV transmission during sex, the researchers included in their report a succinct summary of the leading science. The risk, in general, is low. Activities like unprotected sexual intercourse carry a risk that is much lower than commonly believed. Most unprotected intercourse involving an HIV-positive person does not result in the transmission of HIV. But the risk of transmission is not the same for all sex acts and circumstances. Antiretroviral therapy, however, can reduce the amount of HIV in a person’s bloodstream and make the person less infectious to their partner. Also, because of antiretroviral therapy, HIV infection has gone from being a terminal disease to a chronic, manageable condition in the eyes of many experts and people living with the virus.
Many people with HIV who were interviewed remain concerned that even if they disclose their HIV, their sex partners might complain to police. Health care and service providers stated that they are confused by the vagueness of the law. They also stated that criminalizing HIV non-disclosure prevents people from seeking the support they need to come to grips with living with HIV and disclosing to partners. But people with HIV and their providers have many suggestions for improving public policy and the law. The “significant risk” test needs to be clarified. The public health and criminal justice systems need to work together. And policies and procedures to guide Crown Attorneys need to be put in place.
How can you use this research?
Policymakers have several options to respond to the lack of clarity in the law and the resulting expansive use of the law. They can continue to let police, Crown Attorneys, and courts deal with cases as they arise. They can work to amend the Criminal Code. But the best solution, in the short term, would be the development of policy and procedures to guide Crown Attorneys working on these types of cases. The Ontario Ministry of the Attorney General should establish a consultation process to help develop policy and procedures for criminal cases in which people have allegedly not disclosed that they are HIV-positive to their sex partners.
What you need to know:
The criminal law can lead to very serious consequences for people who are charged or convicted. So policymakers need to make sure that the criminal law about HIV disclosure is clear and clearly informed by scientific research about HIV transmission. They also need to look to research to assess whether the law is having unintended consequences that get in the way of HIV prevention efforts.
About the Researchers:
Eric Mykhalovskiy is an Associate Professor and CIHR New Investigator in the Department of Sociology. Glenn Betteridge is a former lawyer who now works as a legal and health consultant. David McLay holds a PhD in biology and is a professional science writer.
This Research Snapshot is from their report, “HIV Non-disclosure and the criminal law: Establishing policy options for Ontario,” which was funded by the Ontario HIV Treatment Network and involved a research collaboration between York University, Canadian HIV/AIDS Legal Network, HIV and AIDS Legal Clinic (Ontario), Black Coalition for AIDS Prevention, AIDS Committee of Toronto, and Toronto PWA Foundation.
Global: AIDS 2010 round-up part 2: Posters
This selection of posters presented in Vienna follows up from my previous AIDS 2010 posting on the sessions, meetings and media reporting that took place during last month’s XVIII International AIDS Conference. I’ll be a highlighting a few others in later blog posts, but for now here’s three posters that highlight how the law discriminates; why non-disclosure is problematic to criminalise; and how political advocacy can sometimes yield positive change.
In Who gets prosecuted? A review of HIV transmission and exposure cases in Austria, England, Sweden and Switzerland, (THPE1012) Robert James examines which people and which communicable diseases came to the attention of the criminal justice system in four European countries, and concludes: “Men were more likely than women to be prosecuted for HIV exposure or transmission under criminal laws in Sweden, Switzerland and the UK. The majority of cases in Austria involved the prosecution of female sex workers. Migrants from southern and west African countries were the first people prosecuted in Sweden and England but home nationals have now become the largest group prosecuted in both countries. Even in countries without HIV specific criminal laws, people with HIV have been prosecuted more often than people with more common contagious diseases.”Download the pdf here.
In Responsibilities, Significant Risks and Legal Repercussions: Interviews with gay men as complex knowledge-exchange sites for scientific and legal information about HIV (THPE1015), Daniel Grace and Josephine MacIntosh from Canada interviewed 55 gay men, some of whom were living with HIV, to explore issues related to the criminalisation of non-disclosure, notably responsibilities, significant risks and legal repercussions. Their findings highlight why gay men believe that disclosure is both important and highly problematic. Download the pdf here.
In Decriminalisation of HIV transmission in Switzerland (THPE1017), Luciano Ruggia and Kurt Pärli of the Swiss National AIDS Commission (EKAF) – the Swiss statement people – describe how they have been working behind the scenes to modify Article 231 of the Swiss Penal Code which allows for the prosecution by the police of anyone who allegedly spreads “intentionally or by neglect a dangerous transmissible human disease” without the need of a complainant. Disclosure of HIV-positive status and/or consent to unprotected sex does not preclude this being an offence, in effect criminalising all unprotected sex by people with HIV. Since 1989, there have been 39 prosecutions and 26 convictions under this law. A new Law on Epidemics removes Article 231, leaving only intentional transmission as a criminal offence, and will be deabted before the Swiss Parliament next year. Download the pdf here.
Global: AIDS 2010 round-up part 1: sessions, meetings and media reports
A remarkable amount of advocacy and information sharing took place during the XVIII International AIDS Conference held in Vienna last month. Over the next few blog posts, I’ll be highlighting as much as I can starting with a round-up of sessions, meetings, and media reports from the conference. A separate blog post will highlight posters, a movie screening and some inspirational personal meetings.
Sunday: Criminalisation of HIV Exposure and Transmission: Global Extent, Impact and The Way Forward
A meeting that I co-organised (representing NAM) along with the Global Network of People Living with HIV (GNP+) and the Canadian HIV/AIDS Legal Network received quite a lot of coverage.
Criminalisation of HIV Exposure and Transmission: Global Extent, Impact and The Way Forward was a great success with many of the 80+ attendees telling me it was Vienna highlight. The entire meeting, lasting around 2 1/2 hours, has been split into eight videos: an introduction; six presentations; and an audience and panel discussion. The entire meeting can also be viewed at the NAM and Legal Network websites, with GNP+ soon to follow.
Reports from the meeting focusing on different parts of the meeting were filed by NAM and NAPWA (Aus) and I was interviewed by Mark S King for his video blog for thebody.com.
Richard Elliott of the Canadian HIV/AIDS Legal Network, Moono Nyambe from GNP+ and UNAIDS’ Susan Timberlake – all of whom took part in the meeting – were interviewed for a piece in Canada’s Globe and Mail, with the headline, U.S., Canada lead world in prosecuting those who transmit AIDS virus: Criminal charges are justified only when infection is intentional, activists contend.
The same day, an editorial in the Globe and Mail completely undermined the rather balanced article by stating, quite bluntly
Disclosing one’s status is, of course, a difficult and emotional journey, fraught with potentially negative consequences. HIV-positive people can be marginalized, and discriminated against in terms of housing, employment and social relationships. However, the collective rights of this minority group cannot take precedence over their individual responsibility not to infect others.
It concluded
But in Canada the law is clear: Exposure without disclosure is a crime. And that is a good thing.
Judging by the comments left by readers of both articles, although there is some sympathy for the person with HIV, there’s a long way to go before Canadian hearts and minds are won over by the anti-criminalisation advocacy movement.
Wednesday: Policing Sex and Sexuality: The Role of Law in HIV
Lucy Stackpool-Moore (IPPF) and Mandeep Dhaliwal (UNDP)co-chaired a satellite session on the Wednesday that included presentations by Anand Grover, UN Special Rapporteur on Right to Health, and my colleague Robert James of Birkbeck College, University of London.
Thursday: HIV and Criminal Law: Prevention or Punishment?
This debate included discussion of criminalisation from the point of view of increased stigma. Lucy Stackpool-Moore again contributed. The session was not only recorded by the rapporteur, Skhumbuzo Maphumulo, but also reported on by PLUS News.
Thursday: Leaders against Criminalization of Sex Work, Sodomy, Drug Use or Possession, and HIV Transmission
This was the session with the highest profile names (rapporteur summary here). Chaired by Stephen Lewis, Founder of AIDS Free World, it was left to none other than Festus Mogae, Former President of Botswana, and a member of the Global Commission on HIV and the Law, to make a statement against the criminalisation of HIV exposure and transmission: “Criminalisation of HIV transmission is…futile”, he said, quite a few times. (Audio of his statement, at around 38:00, can be heard here).
Although it was mostly a repetition of some of the well-worn public health and human rights reasons already presented two years earlier by Edwin Cameron at AIDS 2008, it is significant that a former president of an African country made this statement, given the ‘legislation contagion‘ that has occurred on that continent. President Mogae noted that he had written to some of his estwhile colleagues pleading with them not to pass HIV-specific laws in their countries. With more than 25 African countries with such laws on the statute books and at least another eight African countries considering them, I think they need some more convincing.
This was the only oral abstract session at AIDS 2010 dedicated exclusively to the criminalisation of HIV exposure and transmission, and I was honored to have two abstracts represented. The rapporteur summary is here.
I’ve already included a blog posting on my presentation, which you can see here. The other presentations included Criminalization of HIV transmission and exposure and obligatory testing in 8 Latin American countries, presented by Tamil Rainanne Kendall. (Audio and slides here); Tanzania case study on how AIDS law criminalizes stigma and discrimination but also stigmatizes by criminalizing deliberate HIV infection, presented by Millicent Obaso (Audio and slides here); and If there is no risk and no harm there should be no crime. Legal, evidential and procedural approaches to reducing unwarranted prosecutions of people with HIV for exposure and transmission, presented by Robert James (and co-authored by yours truly). (Audio and slides here).
The session was also reported on by aidsmap.com.
Thursday: Late Breakers (Track F)
This session included three oral abstracts on criminalisation of HIV exposure and transmission.
A quantitative study of the impact of a US state criminal HIV disclosure law on state residents living with HIV, presented by Carol Galletly. (Audio and slides here).
Roger Pebody of aidsmap.com provides an excellent summary of her findings here
Under [Michigan] state legislation, people with HIV are legally obliged to disclose their HIV status before any kind of sexual contact. Disclosure is meant to occur before sexual intercourse “or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body”. This would include even fingering or the use of a sex toy.
Carol Galletly reported on a study with 384 people with HIV who live in Michigan (but recruitment methods and demographics were not fully described). Three quarters of respondents were aware of the law.
She wanted to see if the existence of the law had any impact on her respondents’ behaviour. Comparing those who were aware of the law with those who were not, people who knew about the law were no more likely to disclose their HIV status to sexual partners. Moreover they were not less likely to have risky sex.
On the other hand, approximately half of participants believed that the law made it more likely that people with HIV would disclose to sex partners. Having this belief was associated with being a person who did disclose HIV status to partners.
In fact a majority of participants supported the law. Individuals who Gallety characterised as possibly being marginalised were more likely to support the law: women, non-whites, people with less education and people with a lower income.
The two other presentations were: HIV non-disclosure and the criminal law: effects of Canada’s ‘significant risk’ test on people living with HIV/AIDS and health and social service providers, presented by Eric Mykhalovskiy (Audio and slides here) and Advocating prevention over punishment: the risks of HIV criminalization in Burkina Faso presented by Patrice Sanon (Audio and slides here).
Other media reports
Other reports mentioning the criminalisation of HIV exposure and transmission published during the conference include:
A piece in the Montreal Gazette, headlined, Advocates raise concerns over prosecuting HIV-positive people
The troubling increase in the number of new HIV cases in Canada may be attributed to the country’s reputation of being a world leader in prosecuting HIV-positive people who fail to disclose their status, according to one group of AIDS advocates. “We’re looking at rising numbers of infection, especially among certain risk groups,” said Ron Rosenes, vice chair of Canadian Treatment Action Council. “And now we’re looking at the criminalization issue as one of the reasons people have been afraid to learn their status.”
Austria: AIDS 2010 delegates warned about criminal HIV exposure laws; law clarified but not binding
The organisers of the International AIDS Conference, due to be held in Vienna from next Sunday (18th July), have today provided an important update on Austria’s criminal HIV exposure and transmission laws.
They recommend that anyone who is aware they are living with HIV practice safer sex and safer injecting practises whilst in Austria to minimise the legal risks.
Although the Austrian Ministry of Justice has issued various opinions clarifying the law on HIV exposure and transmission – including recognising that sex with a condom or unprotected sex with an undetectable viral load is not a criminal offence – and that this is a “firm directive to the courts, it should be noted that it does not actually change the law and is not necessarily binding on the courts. As such, conference delegates are advised to always adopt safer sex practices to protect their health, minimize the risk of transmission and the associated legal risks.”
Full statement below.
Statement on Austrian Laws Impacting People Living with HIV/AIDS (PLHIV)
from AIDS 2010, GNP+ and ICWLocal and international organizers for the XVIII International AIDS Conference (AIDS 2010) look forward to welcoming delegates to Vienna this month.
As delegates plan their stay in Vienna, this short statement provides an overview of some Austrian laws that impact on people living with HIV/AIDS (PLHIV). The organizers of AIDS 2010 recommend that conference delegates read this statement to understand their legal position with respect to these areas of law.
There are two key points in this statement:
- Intentional and negligent acts capable of transmission of HIV are criminal offences in Austria
- Legal risks can be minimized through safer sex and safer injecting practices
Intentional and negligent acts capable of transmission of HIV are criminal offences in Austria
The Austrian Penal Code provides that it is a criminal offence to commit an act which is capable of causing the danger of spreading an infectious disease. Under the law, the disease must be reportable or notifiable. HIV is considered such an infectious disease, along with Hepatitis C, tuberculosis and gonorrhoea. An ‘act’ capable of causing danger includes sexual activity such as vaginal or anal intercourse, oral intercourse or heavy kissing where there is biting or open wounds. An ‘act’ could also include the sharing of injecting equipment.
If the act is carried out with the intent of spreading the disease then the penalty is a maximum three years imprisonment or a financial penalty. If it is an act of negligence, then the penalty is a maximum of one-year imprisonment or a financial penalty.
Under Austrian law, the following factors are irrelevant in establishing a criminal offence:
- Whether the disease was actually transmitted. The key point is whether the act caused danger. This can be a real danger or an abstract (hypothetical) danger.
- Whether the person carrying out the act thought, ‘without good cause’ (negligently), that the other person already carried the disease. [Note that if person who carried out the act thought ‘with good cause’ (not negligently) the other person was already infected, then the act is not a criminal offence.]
- Whether the other person consented to the act.
- Whether the person who carried out the act disclosed his/her disease, although this may reduce the severity of the penalty.
The Global Criminalisation Scan prepared by GNP+ shows that there have been at least 40 prosecutions in Austria resulting in at least 30 convictions. [Note that GNP+ has noted the lack of reliable data as a problem.]
It is important to note that a broad range of organisations now agree that laws that criminalise HIV transmission violate human rights and undermine public health interventions, including HIV prevention initiatives.
Legal risks can be minimized through safer sex and safer injecting practices
There have been a number of developments in Austrian case law that provide greater legal clarity on how PLHIV can minimize their legal risks in relation to the transmission of HIV. This legal information has been kindly provided by Dr Helmut Graupner, an Attorney at Law specializing in sexuality and the law in Austria.
In the lead up to AIDS 2010, the Ministry of Justice has issued an opinion clarifying the law on HIV transmissions. Whilst this opinion is a firm directive to the courts, it should be noted that it does not actually change the law and is not necessarily binding on the courts. As such, conference delegates are advised to always adopt safer sex practices to protect their health, minimize the risk of transmission and the associated legal risks.
For a person living with HIV, sexual intercourse with a condom does not constitute a criminal offence. The Supreme Court of Austria has issued a decision that sexual intercourse with a condom for a PLHIV does not constitute a criminal offence. Please note that the case law on sexual intercourse with a condom only concerns vaginal intercourse and not anal intercourse, however, the opinion of the Ministry of Justice provides that this applies to anal intercourse too.
Oral intercourse (PLHIV giving) without a condom does not constitute a criminal offence. Austrian courts have found that oral intercourse from a PLHIV to another person without a condom does not constitute a criminal offence. However, there is no case law concerning oral intercourse from an HIV-negative person to a PLHIV, so the legal position in this case remains unclear. Such intercourse should not constitute a criminal offence if safer sex practices are observed and no ejaculation into the mouth takes place. However, an HIV positive person ejaculating into the mouth of someone who is HIV negative may constitute a criminal offence. [An element of HIV transmission law in Austria is ‘abstract’ risk or hypothetical risk. Whilst there have been no cases concerning oral intercourse from an HIV-negative person to a PLHIV, due to the abstract risk element of the law, we have been advised to include this advice in the statement.]
If a PLHIV has an undetectable viral load, unprotected sexual intercourse does not constitute a criminal offence. The Ministry of Justice has provided a firm opinion that if the PLHIV has an undetectable viral load and is consistently following an effective ART regimen then sexual intercourse without a condom does not constitute a criminal offence, given that such persons are not infectious. Please note that the opinion is not binding on the courts. As such, delegates are advised to adopt safer sex practices even if they have an undetectable viral load.
The AIDS 2010 organisers recommend that all conference participants practice safer sex and safer injecting practices to protect their health, minimize the risk of transmission and the associated legal risks.
There are no restrictions in Austria for PLHIV in accessing public spaces
The Vienna public transportation system (Wiener Linien) has no regulations denying PLHIV the right to use the system and there has never been a reported incident of denied service to a PLHIV. Further, regulations denying entry to those with contagious diseases to public swimming facilities in Vienna were removed recently.Conference organizers are grateful to representatives of the Austrian Government, the City of Vienna and the Austrian Parliament for their efforts to work with us to clarify Austrian laws impacting PLHIV. We are also grateful to them for all the other support given to the conference to make it a success.