Singapore: Man gets a year in prison for HIV exposure via oral sex

The first person to be convicted of HIV exposure in Singapore has been sentenced to a year in prison. Incredibly, the HIV-positive man performed oral sex in a public toilet, which, as I had noted in my previous blog posting on this case, results in no risk to the person being sucked.

In a report from Bloomberg, Dr Andrew Grulich, professor of epidemiology at the University of New South Wales in Australia, commented, “In a case like this where the risk is miniscule, it seems ludicrous to be prosecuting a person.”

There are two reports below: the first from Singapore’s Straits Times reporting the story ‘straight’, and the second, from Bloomberg, with commentary.

Man jailed for not telling boy of risk in first HIV case
Elena Chong
July 14, 2008

IN THE first case of its kind, a 43-year-old HIV sufferer was jailed for 12 months on Monday for having sex with a boy without telling him of the risk of contracting the infection and getting him to agree to accept that risk.

Chan Mun Chiong, a former chef, pleaded guilty to performing oral sex on the 16-year-old boy at the third level male toilet of Northpoint Shopping Centre in Yishun last year.

Deputy Public Prosecutor Royce Wee said that Chan had been diagnosed to have human immunodeficiency virus infection (HIV) since March 1999.

On Sept 15 2007, he was at the mall’s toilet cubicle when he initiated some hand signals under the partition to the victim in the adjacent cubicle, indicating that he was interested to engage in sex.

The duo went one floor up to a cubicle for the disabled. He then performed oral sex on the boy for two to three minutes.

The DPP said Chan did not inform the victim of the risk of contracting HIV infection from him and did not get the boy’s voluntary agreement to accept that risk before the sexual intercourse.

After that Chan asked the victim to turn around, but he refused. Chan persisted but the boy again refused. The victim told him to get out of the cubicle.

Angry, Chan left but followed the victim around the shopping centre. The victim became worried and approached a security officer for help.

The court heard that the boy regretted what Chan did to him and his parents no longer speak to him. The DPP said fortunately, he was not infected.

He asked Principal District Judge Bala Reddy to impose an appropriate sentence on Chan, who could have been fined up to $10,000 and/or jailed for up two years.

Under the new laws passed last month, the penalties have been upped to $50,000 or a jail term of up to 10 years or both.

Singapore Jails Man With HIV for Performing Oral Sex on Youth
by Simeon Bennett

July 15 (Bloomberg) — Singapore jailed a man with HIV for performing oral sex on a teenage boy, the first time the city- state has used its laws to prosecute someone with the virus that causes AIDS, the Straits Times reported.

The 43-year-old chef was sentenced to one year in jail after pleading guilty to a charge he exposed the 16-year-old to HIV without informing him of the risks first, according to the report. The teenager didn’t contract the virus, the report said.

“The risk of transmission of HIV through oral sex is so low that it hasn’t been able to be measured in epidemiological studies,” Andrew Grulich, a professor of epidemiology at the University of New South Wales in Australia, said in a telephone interview from Sydney. “In a case like this where the risk is miniscule, it seems ludicrous to be prosecuting a person.”

Singapore is seeking to curb its HIV infection rate, which has doubled in the past decade. In April, lawmakers passed amendments to laws that make it a crime for a person who doesn’t know their HIV status and has “reason to believe” they may have the virus to have sex without informing a sexual partner or taking “reasonable precautions” to protect them.

The man performed oral sex on the teenager in a shopping mall toilet cubicle in September, the Straits Times reported. After the teenager refused his request for anal sex, he followed him around the mall until the boy asked a security guard for help, the newspaper said.

A spokesman for Action for AIDS, Singapore’s HIV advocacy group, said he needed the approval of a committee to comment.

In the April amendments to the law, Parliament also increased the penalties to a maximum 10 years jail and S$50,000 ($37,000) fine. The man was charged before the amendments came into effect.

So far this year, 192 people have been diagnosed with HIV in Singapore, compared with 167 in the same period last year, according to data on the health ministry’s Web site.

Singapore’s legal age of sexual consent is 16. The city- state also outlaws any act of “gross indecency” between men.

US: Military court discusses viral load and HIV exposure

The issue of whether someone with an undetectable viral load can be guilty of HIV exposure has been discussed in a US court for the first time – the US Court of Appeals for the Armed Forces.

In this extremely interesting article from Gay City News (below) the five-member panel spent some time discussing whether an HIV-positive soldier who had previous pleaded guilty to HIV exposure (actually aggravated assault) could set aside his guilty plea following testimony from a military doctor that he was “highly unlikely” to be able to transmit HIV given his extremely low viral load.

At a sentencing hearing after his guilty plea, Captain Mark Wallace, a military doctor, testified that it was highly unlikely that X could have infected either woman because of his low viral load. Judge Charles Erdmann, writing for the court, noted Wallace’s testimony that “it was ‘unquestionably’ possible that X could transmit the virus but that the likelihood was ‘extremely low’ due to his low viral load.” Wallace acknowledged that there were documented cases of low viral load individuals who had sexually transmitted the virus, but emphasized that this was “very, very unlikely.”

When pushed to quantify his testimony, Wallace said the probability that Dacus could transmit HIV through unprotected sex with a woman was about 1 in 10,000, and that when he used a condom it was 1 in 50,000.

Although the majority did not agree, and did not allow his guilty plea to be set aside, two members of the panel found this expert testimony valid enough to question HIV exposure laws given evolving scientific knowledge of HIV transmission.

HIV Liability At Issue
By: ARTHUR S. LEONARD

A military appeals court ruling on aggravated assault charges against an HIV-positive male soldier who had sex with two women, one without a condom, without disclosing his serostatus provoked an interesting debate about what standard to apply given developing knowledge about transmission of the virus.

A five-judge panel of the US Court of Appeals for the Armed Forces was unanimous in its May 6 ruling rejecting the soldier’s effort to set aside his guilty plea, but two of the judges joined in a concurring opinion suggesting some reconsideration of the issue is in order.

Army Staff Sergeant X, a married man, learned that he was HIV-positive in 1996, and received the usual counseling about his responsibility to use a condom and also inform his partners of his status. Medical testimony in the case indicates that he is one of the rare individuals whose immune system suppresses the virus to an undetectable level without any medication. As a result, he remains asymptomatic and is unlikely to ever develop AIDS.

Military prosecutors charged him with two counts of attempted murder, arising from his adulterous sexual encounters with two women. He used a condom with the first woman, and claimed he barely penetrated her. With the second, however, he did not use a condom, and had an affair that included at least 11 occasions of sexual intercourse.

X did not deny the factual allegations, and in the face of the drastic penalties for attempted murder, agreed to plead guilty to lesser charges of aggravated assault and adultery, both violations of the Uniform Code of Military Justice (UCMJ).

At a sentencing hearing after his guilty plea, Captain Mark Wallace, a military doctor, testified that it was highly unlikely that X could have infected either woman because of his low viral load. Judge Charles Erdmann, writing for the court, noted Wallace’s testimony that “it was ‘unquestionably’ possible that X could transmit the virus but that the likelihood was ‘extremely low’ due to his low viral load.” Wallace acknowledged that there were documented cases of low viral load individuals who had sexually transmitted the virus, but emphasized that this was “very, very unlikely.”

When pushed to quantify his testimony, Wallace said the probability that X could transmit HIV through unprotected sex with a woman was about 1 in 10,000, and that when he used a condom it was 1 in 50,000.

In his appeal, X argued that his guilty plea was inconsistent with Wallace’s evidence introduced at the sentencing hearing. Under military law, conviction on aggravated assault requires that it be established that “the natural and probable cause of exposing” his sexual partner “to the HIV virus is death or grievous bodily harm,” or, put another way, that his conduct was “likely to produce death or grievous bodily harm.”

Applying this standard in prior HIV cases, military courts had taken into account both the probability that the virus could be transmitted and the harm that would be caused if it was transmitted. Erdmann first rejected X’s argument that even if he had infected his partners, they would not have been seriously harmed since he enjoys a very low viral load. That claim was not supported by medical evidence, since Wallace testified X’s low viral load was attributable to the strength of his immune system, not to a weak strain of HIV in his system.

The issue of X being unlikely to transmit the virus to a partner was a more complicated matter. In the past, military courts found that the statutory standard was met if the risk of HIV infection is “more than merely a fanciful, speculative, or remote possibility.” Erdmann wrote that “although the risk of transmitting the virus was low and therefore arguably ‘remote,’ the risk was certainly more than fanciful or speculative.”

This was enough to satisfy the court that X’s guilty plea should not be set aside, but two members of the court, Judges Margaret A. Ryan and James E. Baker, suggested that the issue of risk should be revisited in “an appropriate case.”

Ryan wrote that the standard being applied, though in line with other military rulings, “gives me pause,” and that a 1 in 50,000 chance seems at odds with the intent of the military code. She also noted the UCMJ does not state that “because the magnitude of the harm from AIDS is great, the risk of harm does not matter.” The standard in the statute is whether the conduct is “likely to produce death or grievous bodily harm,” which seems, according to Ryan, a higher standard than the risk being “so low as to approach being no ‘more than merely a fanciful, speculative, or remote possibility.'”

If the case had involved an appeal of a conviction at trial rather than a guilty plea, Ryan and Baker would have been inclined to reconsider it.

Ryan and Baker’s concerns deserve wider discussion in the civilian sphere as well, since many states prosecute HIV-positive individuals who have sex without disclosing their serostatus to partners. The severity of punishment is supposed to reflect the risk facing the uninfected party, yet the occasional appellate decisions that have emerged suggest that courts have been slow to adapt to the unfolding evidence about medical successes in reducing viral loads to undetectable levels and, consequently, lowering the risk of transmission.

Australia: Perth man stabbed with syringe unlikely to have HIV

So much of the reporting I see on HIV-related ‘crimes’ is shoddy and scare-mongering, so I was pleased to see this follow-up story from ABC News online that highlights how hard it is to be infected with HIV by being stabbed in the shoulder with a syringe.

The original story from ABC News online, entitled, ‘Stab victim fears HIV infection,’ had gaven a rather different impression. It’s a shame, though, that ABC News didn’t approach the Health Department before airing their first report.

The Health Department of [Western Australia] says there is a very slim chance a 55-year-old man stabbed with a syringe near the Midland train station has contracted HIV.

The victim was told ‘welcome to the world of HIV’ when he was stabbed in the shoulder by a man he refused to give money to.

The Department’s Director of Communicable Disease Control Paul Van Buynder says there has never been a case in WA of a person contracting the virus after being attacked by someone with a syringe.

“There was one health care worker in the last 25 years while we’ve been monitoring this that did sustain a needle stick injury with a known HIV positive patient and that patient did seroconvert despite taking medication at the time, but that’s the only case in the last 25 years in Western Australia,” he said.

Dr Van Buynder says even if the assailant had the virus there would only be a three in one thousand chance of the man contracting it.

“The risk of Hepatitis C and Hepatitis B, which are more infectious diseases, is higher than the risk of HIV, but again it relates to the possibility of the assailant themselves being infected.”

Swiss statement on sexual HIV transmission was inspired by HIV exposure prosecutions.

Very interesting interview on aidsmeds.com with Dr Bernard Hirschel, of the University of Geneva, the lead author of the controversial Swiss consensus statement which said that successful treated individuals with an undetectable viral load for at least six months and no concurrent sexually transmitted infection has a close to zero risk of transmitting HIV to an HIV-negative partner (who also has no STIs).

He says that one of the main reasons he and his colleagues were motivated to issue the statement was due to their frustration with Swiss courts not accepting a belief that undetectable viral load meant uninfectious as a defence during criminal HIV exposure trials.

The first[reason for the statement] is, a series of trials in Switzerland where people were accused of endangering others through sexual relations—they were HIV-positive, the partner was HIV-negative. The defense said, “well, there was little or no danger because my client was treated and he had undetectable viremia.” This defense was not admitted based on official statements saying that treatment had little influence on infectivity. And that’s just plain wrong. So there needs to be some official statement to the contrary.

The full interview, with Regan Hoffman, Editor of Poz magazine, is available in video form here, and the transcript can be found here.

I’m currently putting together an eight page article examining the statement, the global reactions (which have been wide-ranging), and the implications (which are even more wide-ranging), for the April issue of HIV Treatment Update.

UK: New book explores criminal HIV transmission

An excellent new book on the criminalisation of HIV transmission by Dr Matthew Weait, senior lecturer in law and legal studies at Birkbeck College, University of London, has recently been published.

The book, Intimacy and Responsibility: The Criminalisation of HIV Transmission,was welcomed by HIV clinicians and advocates at its February 12^th launch at Waterstone’s bookshop at the Wellcome Institute in London.

My story on the book and its launch from aidsmap.com follows comments from Dr Catherine Dodds, a research fellow at Sigma research, University of Portsmouth, who has studied the impact of criminal prosecutions in affected communities, I’m including them here.

In her brief talk, Dr Dodds provided an incisive overview of not just the book, but also Dr Weait’s immeasurable contributions to the debate on the criminalisation of HIV transmission over the past decade:

When criminal prosecutions became a reality in England and Wales Matthew encouraged the development of a network of activists,academics, HIV service providers, doctors, politicians, lawyers, civil servants, researchers and journalists and anyone who was interested, frankly… who might be able to collate their knowledge and their talents and their energy to act in whatever way was possible to challenge, clarify and respond to the developments.

As a part of developing this network, he raised the funds from the Economic and Social Research Council to host a series of seminars at Keele University in Stoke and at Birkbeck College here in London. People attending those seminars exchanged knowledge and experiences. They offered a space where people were encouraged to think out loud.

What abides with me from attending those seminars is the way that those attending simply shared their humanity – in all of its strength and frailty and warmth – and that had a great amount to do with the kind of environment that Matthew created. It was an opportunity for learning and planning and thinking and sharing unlike any I have ever known.

Whether it is setting up message-boards so that people can share information and thoughts instantly – or making the time to speak with (and listen to) groups of people with diagnosed HIV, or with groups of medical or legal professionals – what Matthew has always wanted to do is to get people talking about criminal prosecutions for the transmission of HIV. Because he learned, and he taught me to see, that once people chew it over and consider it for a while – the obviousness of applying the criminal law to such situations, tends to grow a little less obvious.

In writing Intimacy and Responsibility, Matthew has effectively thrown that discussion open to a much broader audience. I can tell you from personal experience, that if you want to get noticed – sit on the tube and read this book. Never have I been so aware of so many people being so aware of what it is I am reading. Perhaps they are intrigued by its cover, and on a number of occasions, I have noticed continued glances and thoughtful expressions that indicates they are thinking and wondering about what such a book on such a topic might hold between its covers.

What Matthew does in Intimacy and Responsibility is to pull together and present information from a huge array of different academic disciplines because these are all required in order to begin untangling the complexities of such prosecutions. While a different writer may have tried to dissect this application of the law at the expense of considering what it is to be one of the people involved in such cases, it is from the standpoint of those very people – both complainant and defendant – that Matthew’s main argument begins.

He effectively opens a window into the lived experience of the trial, by closely analysing the transcript of an early prosecution for reckless sexual transmission of HIV. It is here that he begins to forensically dig into the reality of a criminal judicial process that fails to make sense of what it is to be human. He muses that in the criminal justice system’s pursuit of ensuring that blame is laid – the system has perhaps lost sight of what it is to make human society better – by losing sight of (or perhaps not even considering) what is required to reduce HIV transmission in the midst of this epidemic.

This isn’t an easy discussion to initiate, by any means. Matthew is quite frank in the pages of his book that he knows that the odds stack up against his position, and that many people will have a gut instinct about the morality and the criminality of such situations. But despite the uncomfortableness that it might cause, he argues that slowing the HIV epidemic requires us to prioritise the public good. This in no way diminishes Matthew’s recognition of the pain, the hurt, the fear and the distrust that is likely to be a part of the experience of both complainants

and defendants involved in such cases.

In extending this debate, Matthew’s book asks us to consider what our own priorities are. It asks us to engage actively as citizens who think about how our criminal justice system works, and who ask if it should be the place to resolve all of the issues in our complicated, intimate, messy, sloppy, passionate, tangled, painful human lives. As he says, and I paraphrase here a bit: ‘The fact that we inhabit a society… in which an ever more extensive and punitive system of criminal law is understood as the mechanism that can provide the solution, does not mean that we should allow our imaginations to rot’.

The extent to which Matthew has extended his leadership, and energy and intellectual capacity and humanity to challenging and responding to this application of the criminal law cannot be overstated. This book incorporates and reflects that wider project and it will prove to be a tremendous resource for many years to come.

Decriminalise reckless HIV transmission, argues HIV legal expert

Edwin J. Bernard, Friday, February 22, 2008

www.aidsmap.com

A new book on the criminalisation of HIV transmission by Dr Matthew Weait, senior lecturer in law and legal studies at Birkbeck College, University of London, argues that current English law has “the potential to do more harm than good” if “its primary purpose is to prevent onward transmission.”

The book, Intimacy and Responsibility: The criminalisation of HIV transmission, was welcomed by HIV clinicians and advocates at last week’s central London launch, which highlighted the impact of criminal prosecutions on the ability of doctors and researchers to work effectively.

Dr Jane Anderson, consultant physician at Homerton Hospital, and lead author of the British HIV Association’s (BHIVA) briefing paper on HIV transmission, the law and the work of the clinical team said that the spectre of criminal prosecutions had affected the way the NHS provided services to HIV-positive patients “in terms of care, advice and confidentiality” and had created “a great deal of anxiety and concern.”

She said that many healthcare staff working with HIV-positive patients felt that “the law was looking over people’s shoulders” and that it had significantly affected the doctor-patient relationship since doctors could potentially be asked to testify as expert witnesses for either prosecution or defence.

Dr Anderson also highlighted the impact recent prosecutions have had on research. “The rigour of our research has been coloured by prosecutions,” she said. “We have had to reconsider whether we ask certain questions whilst researching sexual behaviour in the current climate.”

Also speaking at the launch was Dr Catherine Dodds, a research fellow at Sigma research, University of Portsmouth, who has studied the impact of criminal prosecutions in affected communities. She said that in his book, Dr Weait “asks us to engage actively as citizens who think about how our criminal justice system works, and who ask if it should be the place to resolve all of the issues in our complicated, intimate, messy, sloppy, passionate, tangled, painful human lives.”

Dr Weait’s book critically examines and deconstructs the English criminal law’s approach to criminal prosecutions for reckless HIV transmission. In one of the book’s most revelatory chapters, he uses transcripts from the trial of Feston Konzani to show how the English criminal law reduces complex human thoughts, feelings and interactions to “over-simplified accounts of responsibility and irresponsibility, of guilt and innocence.”

The book also examines concepts of harm, risk, recklessness, consent, and responsibility and strongly suggests that the criminal law is ill-equipped to understand these concepts pragmatically. If the primary purpose of the criminal law is to prevent onward transmission, he argues, then it “has the potential to do more harm than good.”

Edwin Cameron, Justice of the South African Supreme Court of Appeal, and one of the world’s leading figures on HIV and AIDS and the law, writes in the book’s preface that “Weait’s premise is that criminal law and criminal justice should be used for the public good rather than as means of securing reparation for particular individuals.”

“If his argument is correct,” he continues, “then we must question criminal laws that may discourage people from HIV testing, or from being candid about their sexual history when confiding in health care workers. We must question whether it is good to impose criminal liability when media coverage is often sensational and inaccurate – with the effect of demonising all with HIV, and marking them as potential aggressors. We must question whether such laws acknowledge the difficulties that some living with HIV – particularly women, who may risk violence and expulsion from the home – have in negotiating safer sex.”

“And we must question the public ‘good’ that comes from ascribing sole responsibility for transmission (as such laws do) to the person with HIV, thus attenuating the partner’s responsibility for avoiding transmission – especially in an epidemic when all should be aware of the risks of unprotected sex,” writes Mr Justice Cameron.

The best way to promote “a more authentic and socially beneficial approach to the meaning, practice and expression of responsibility than that which the law constructs and reinforces,” concludes Dr Weait “is to decriminalise the reckless transmission of HIV.”

Reference

Weait M. Intimacy and Responsibility: The criminalisation of HIV transmission ISBN 978-1-904385-70-7; Routledge-Cavendish, 2007.

US: HIV-positive man who forced wife to have oral sex arrested for HIV exposure, rape

An HIV-positive man was arrested in the New Orleans area last Saturday, after his wife complained to police investigating a disturbance that he had forced her to have oral sex with her, without a condom.

He is charged with aggravated rape, second-degree battery, intentional exposure of another person to HIV…and several outstanding traffic violations.

The full story, from The Times-Picayne, is below.

Husband held on rape, HIV charges
Police are called to Gretna hotel room
Tuesday, February 12, 2008
West Bank bureau

A Harvey man accused of raping his wife and intentionally exposing her to the HIV virus remained in the Jefferson Parish Correctional Center on Monday.

The 43-year-old man was booked Saturday with aggravated rape, second-degree battery, intentional exposure of another person to HIV and several outstanding traffic violations. His bond was set at $370,000. The Times-Picayune, which does not identify the victims of sex crimes, is not publishing the man’s name to protect his wife’s identity.

Gretna Deputy Police Chief Charles Whitmer said police were called to a disturbance at a hotel in the 1400 block of Claire Avenue on Saturday evening. When they arrived, they were directed to a hotel room occupied by the couple.

Whitmer said that as deputies approached the room, the man stuck his head outside and said that everything was fine. However, his wife began screaming for help from inside the room, Whitmer said.

When officers entered the room, the woman told them that her husband had come back to the hotel intoxicated and demanded that she have sex with him. When she refused, she said he beat her and forced her to perform oral sex on him without a condom. The woman was briefly able to escape the room, but her husband chased her down and dragged her back to the room by her hair, Whitmer said.

He said that police learned that the man has been HIV-positive for several years and that he and his wife are aware of his condition. The woman told officers the couple typically used protection during sexual relations.

Whitmer said that if someone who is HIV-positive knowingly engages in unprotected sex, particularly if the sex is nonconsensual, he or she can be booked with intentional exposure of the disease.

UK: Reckless HIV transmission case dismissed due to insufficient evidence

Some good news from the UK (actually, it’s the law of England and Wales that this case is relevant to). I reported this story today on NAM’s website, aidsmap.com.

Reckless HIV transmission case dismissed due to insufficient evidence

Edwin J. Bernard, Monday, February 11, 2008

The case against an HIV-positive man charged with grievous bodily harm for allegedly ‘recklessly’ sexually transmitting HIV was dismissed at Manchester Crown Court last Thursday following legal argument.

A 39 year-old man had been charged under Section 20 of the Offences against the Person Act 1861 (OAPA) – recklessly causing serious bodily harm – last September. An application for bail had been refused on the grounds that there was a risk other offences could be committed; consequently, the man had been in custody since his arrest.

The complainant was a 37-year-old woman who tested HIV-positive in September 2007, after the accused man had provided her name to clinic staff for contact tracing purposes.

In his application to dismiss the case, defence barrister, Alan Walmsley, noted that since this was her first-ever HIV antibody test, and since the complainant had admitted to at least five sexual partners in the twelve months before her diagnosis, the evidence was insufficient for a jury to be able to convict.

Judge Martin Rudland agreed, and said that this opened up the “possibility of the infection…being potentially from sources other than the defendant. The more the arguments have unfolded, the more I’ve become alive to the prospect of an injustice.”

“I suspect the defendant probably infected the complainant,” he noted, “but that is a long way short of what the prosecution need to prove.”

According to a report in today’s Manchester Evening News, Judge Rudland freed the defendant with these words: “You are still HIV-positive. You still have clear obligations [to those] with whom you have sexual relations. You are still likely to be a defendant in criminal proceedings if you do not behave. Do you understand?”

The man answered that he did, and then left the court a free man.

This is the third time that a lack of evidence in an English prosecution for HIV transmission has resulted in the defendant being cleared.

In August 2006, a gay man was acquitted of ‘reckless’ HIV transmission at Kingston Crown Court, following evidence that phylogenetic analysis could not definitely prove that the defendant infected the complainant.

In February 2007, in a case that went unreported at the time, a Preston Crown Court judge dismissed a ‘reckless’ HIV transmission charge against a gay man due to the fact that other sexual partners of the complainant – who may have been the source of his infection – did not agree to have blood samples taken for HIV testing or phylogenetic analysis.

The defence lawyer in all three of these cases, Khurram Arif, of London solicitors, Hodge Jones & Allen, tells aidsmap.com: “This case highlights the principle that the Crown Prosecution Service has the burden of proving the reckless transmission of HIV. Proving who caused whom to be infected without scientific and medical evidence is extremely difficult. The sexual history of complainants and medical records are material when considering the possible sources of infection and in my opinion should be made available to the defence very early when causation is in issue.”

Is having HIV ‘like a death sentence’?

This is an amended version of a blog entry originally entitled ‘Canada: Expert doctor defends his statements on HIV life expectancy’. I was forced to remove the original posting to which this entry refers due to a threat of legal action.

I have now included the news article from the original posting (about the Owen Antoine case in St. Thomas, Ontario, Canada) in this fuller entry on Mr Antoine’s trial.

The offending post dealt with the reported statements of Dr Anurag Markanday, the expert witness for the Crown in an article on the case from the St Thomas Times Journal, with which I strongly disagree.

Dr Anurag Markanday told the jury there’s no cure for HIV, but drugs do slow the process of the disease. “It’s like a death sentence … while we can keep the virus suppressed, we are going to run out of options.” Once diagnosed, the average lifespan of a person is eight to 10 years, he testified.

For someone with access to HIV treatment – as is the case in Canada – HIV is now a chronic, manageable condition.

In subsequent email correspondence, Dr Markanday again asserted his opinion that, “in the absence of a cure, I would still label it as “death sentence” for someone not on therapy (when clinically indicted) [sic] or in heavily treatment experienced patients with multiple drug mutations and limited options.”

Of course if someone is not on treatment when they should be (in most cases when they have a CD4 count below 350 cells/mm³) then they are more likely to get sick and die. But that is focusing on the exception and not the rule.

And yes, if someone was diagnosed in the 80s or 90s and burned through every class of drug they may well have multiple drug mutations, but there are now many options for what used to be known as ‘salvage therapy’, including the amazing new drugs and new drug classes that Dr Markanday says he is working with.

Consequently, I really must question his focus on worse-case scenarios and his use of the emotive phrase, ‘death sentence’.

Dr Markanday then points out “the effects from other co-morbidities such as hepatitis co-infection with early cirrhosis and mortality, hyperlipidemia/CV events have also increased. (In terms of number of years one could safely say at least ten years since the diagnosis).”

Again, I wonder why Dr Markanday focuses on hepatitis coinfection – which certainly does increase the likelihood of illness and death in someone with HIV? I have no idea whether the complainant was already infected with viral hepatitis before she was allegedly infected with HIV, but if this is not the case, how is it relevant?

As for lipid increase and cardiovascular events, the latest word from the D:A:D study, which looks at these events, is that “there does not seem to be an epidemic on the horizon – simply a risk that needs to be managed.”

So, yes, remaining on suppressive anti-HIV treatment, giving up smoking, exercising and eating well, and taking lipid-lowering drugs if indicated, may be necessary to reduce the risk of an HIV-positive person succumbing to a heart attack, but the increased risk of treated HIV infection itself is not considered something that dramatically alters life-expectancy.

Why could Dr Markanday not have said that with treatment, someone diagnosed with HIV infection today is expected to have, more or less, a normal lifespan? That is what Italy’s Dr Stefano Vella – one of the most respected HIV clinicians in the world – said at the 2006 International AIDS Conference in Toronto, and many expert HIV clinicians agree.

Solid data backs up Dr Vella’s assertion. In 2006, researchers from the United States calculated that someone who was provided with anti-HIV drug combinations according to 2004’s US treatment guidelines would benefit from these treatments for between 21 and 25 years before they finally stopped working. Their estimate included four separate attempts at suppressing HIV to ‘undetectable’ levels, from first-line therapy to ‘salvage’ therapy. (Schackman BR et al. The lifetime cost of current HIV care in the United States. Medical Care 44(11); 990=997, 2006.)

Last year, a large Danish study concluded that a 25 year-old diagnosed with HIV and treated with the anti-HIV drugs available then could expect to live well into their mid-sixties . The Danish study found that the average 25 year-old who remained HIV-negative could expect to live until they were in their mid-seventies. Consequently, successfully treated HIV infection appears to reduce life-expectancy by about ten years. (Lohse N et al. Survival of persons with and without HIV infection in Denmark, 1995-2005. Annals of Internal Medicine:146: 87-95, 2007.)

However, anti-HIV treatments – and knowledge about how to best use them – continue to advance at a rapid pace. As time goes on, experts believe that is very likely that other ways of treating HIV will be discovered that will mean that successful outcomes from the use of anti-HIV treatment could last even longer.

Certainly, HIV can lead to some serious illnesses if untreated. In 2006, around 100 out of the 400 deaths reported in HIV-positive people in the UK were due to their being diagnosed with HIV too late for effective anti-HIV treatment, highlighting the importance of HIV testing in order to make the most of the latest advances in anti-HIV therapy.

Another third of these 400 deaths were not considered related to HIV at all. Consequently, most HIV-related deaths are preventable if HIV is diagnosed early enough and treated succesfully. (Johnson M et al. BHIVA Mortality Audit. BHIVA Autumn Conference, London, 2006.)

Ultimately, anti-HIV treatments have greatly improved the life expectancy of people with HIV, as long as they:

• Know their HIV status early enough to get timely and effective treatment
• Have access to good quality HIV treatment and care
• And take anti-HIV drugs regularly and on time.

Finally, as for life expectancy for someone not on treatment, there are new data from UNAIDS and WHO which finds that, as a result of a better understanding of the natural history of untreated HIV infection, the average number of years that people living with HIV are estimated to survive without treatment has been increased from nine to eleven years.

Swiss statement on sexual HIV transmission has major legal implications

On Wednesday, I reported on aidsmap.com that four Swiss HIV experts have produced the first-ever consensus statement to say that HIV-positive individuals on effective antiretroviral therapy and without sexually transmitted infections (STIs) are sexually non-infectious.

This has major implications for criminal HIV exposure law, and possibly also for criminal HIV transmission defence strategies.

In their statement, originally in French, the experts say that:

unprotected sex between a positive person on antiretroviral treatment and without an STI, and an HIV-negative person, does not comply with the criteria for an “attempt at propagation of a dangerous disease” according to section 231 of the Swiss penal code nor for “an attempt to engender grievous bodily harm” according to section 122, 123 or 125.

This suggests that all jurisdictions that have HIV exposure laws need to rethink their definitions of HIV exposure. In the meantime, it provides an excellent defence for people who are accused of exposure when on a stable regimen with an undetectable viral load.

Since this statement is now in the public domain it could be used as a mens rea defence in reckless HIV transmission cases – the accused honestly believed that he or she was not being reckless (absent disclosure and condom use).

It also suggests that it should be easier for the police to figure out that the complainant is barking up the wrong tree when accusing a particular individual of being responsible for their HIV infection, if that individual can prove they were on a suppressive anti-HIV regimen at the time.

The statement is remarkable, but no surprise. Doctors and other informed people have been thinking this for several years, but because of the concern that the evidence may be misinterpreted, the data have not been so publicly discussed before.

I have previously written on this for AIDS Treatment Update, reviewing much of the same data the Swiss experts reviewed. To my chagrin, although I concluded at the time that ‘undetectable does not always equal uninfectious’, I didn’t focus on when undetectable might well equal uninfectious. That will be the subject of a future article in HIV Treatment Update.

As you will see, knowing when you are likely to be uninfectious is not easy, and the Swiss statement sidesteps the practical issues that many people are likely to face when making decisions. How can you be sure you, or your partner, doesn’t have an STI, which are often asymptomatic?

I thought readers of this blog might find the article illuminating, anyway, so I include the revelant sections below. The complete newsletter can downloaded here; and a previous article in ATU 118 on the link between treatment and prevention which reviews earlier studies, can downloaded here.

‘

Undetectable’ but infectious?
What the difference between HIV levels in blood and sexual fluids means for infectiousness, by Edwin J Bernard
From AIDS Treatment Update 141, November 2004

Why HAART doesn’t eliminate infectiousness
The idea that taking Highly Active Antiretroviral Therapy (HAART) can reduce infectiousness is not new, and was the subject of an ATU article two years ago (Issue 118, October 2002 ).

In the past few years, scientists have discovered that levels of HIV measured in the blood – which is what we know as viral load testing – are not always the same as levels of HIV measured in sexual fluids. These include cum and pre-cum (semen) in men, sex fluids produced by women, both as lubrication for sex and as ‘ejaculation’ at orgasm, and the coating (mucous membrane) that lines the arse (rectum).

Although many people on HAART with ‘undetectable’ viral loads in their blood also have an ‘undetectable’ viral load in their sexual fluids, and therefore seem less likely to transmit HIV, this is not always the case. Some people with ‘undetectable’ viral loads in their blood have quite high viral load in their sexual fluids, which could be high enough to infect somebody else.
The relationship between levels of HIV in the blood and in sexual fluids is quite complex, and it is thought to be governed by two major issues: the levels of anti-HIV drugs that penetrate into the genital tract, and the presence of inflammation, including, but not limited to, STIs in the genitals.

Defining ‘undetectable’
‘Undetectable’ viral load is one of the aims of anti-HIV therapy. However, the definition of ‘undetectable’ viral load is constantly changing as the technology used to measure viral load improves.

An undetectable viral load result indicates that a specific viral load test cannot find any HIV in a given blood sample. An undetectable result does not mean that the blood is free of HIV. In fact, most people with ‘undetectable’ viral load have HIV in their blood, as well as in blood cells, tissue and bodily fluids.

For each viral load test, there is a lower limit of detection – a limit below which it is not possible to measure the amount of HIV present. Samples with very low levels of HIV, for example below 40 copies/ml, are described as having a viral load that is ‘undetectable’, or ‘below the level of detection’.

This lower threshold depends on the sensitivity of the test. The older, standard tests, which may still be in use in some UK clinics, measure down to 400 or 500 copies/ml. Consequently, an ‘undetectable’ result with a standard test may not mean an ‘undetectable’ result using an ultra-sensitive test, which can measure down to 40 or fewer copies/ml.

Genital tracts, semen and HIV
Genital tracts are the tubes inside the male and female sex organs. The male genital tract is generally considered to a ‘sanctuary site’ for HIV (a place separate from the rest of the body where HIV can hide). This is due to the presence of something called the ‘blood-testis barrier’, which is a layer of cells connected by specialised ‘tight junctions’ that prevent drugs from passing between the blood and areas of the testicles where sperm develops and matures. It is currently thought that HIV found in semen comes from the blood or the lining of the genital tract.

Viral loads in the genital tracts of men
Although most studies show that the majority of men treated with antiretroviral drugs experience parallel declines in viral load in both the blood and semen, all studies have shown considerable individual variation in responses. This means that some men may still have infectious HIV in their semen after their viral load tests indicate that HIV is undetectable in the blood. The following patterns have been observed:

• Viral load becomes undetectable in blood weeks, months or even years before doing so in semen
• Viral load becomes undetectable in blood but not in semen.
• Viral load becomes undetectable in semen but not in blood
• Blood viral load rebounds after a period of undetectability but viral load in semen remains undetectable

In the first case, prolonged HIV production in the genital tract may be explained by the fact that long-lived cells that have been infected by HIV continue to pump out virus copies because anti-HIV drugs cannot adequately penetrate these particular cells.

Another explanation might be that virus production continues because latently infected cells are triggered into virus production by the presence of infections or inflammation.

Dr Tariq Sadiq, Senior Lecturer and Honorary Consultant in HIV and genitourinary medicine at St. George’s Hospital Medical School, offers this explanation: “Many studies have shown that patients on protease inhibitor- or efavirenz-containing regimes have suppressed semen viral loads although there is poor penetration of these drugs into semen. This is probably because penetration [of these drugs] into the tissues of the genital tract, where it is likely to matter most, is not poor,” he continued. “However, another explanation is that the nucleoside analogue components of the regimens, which are often at high levels in the semen, may be adequate to suppress genital tract virus.”

Drug levels are different in the blood and semen

A very recent study has found that many anti-HIV drugs are not reaching high enough levels in semen to prevent HIV from replicating. This, many experts argue, increases the chances that an ‘undetectable’ viral load in the blood many not be providing a full picture of how well the drugs are controlling HIV in the genitals. This could result in higher levels of HIV in sexual fluids than in the blood, even when the viral load is ‘undetectable’ in the blood.

This particular study found that levels of the two most commonly-prescribed drugs in the UK – the non-nucleoside, efavirenz (Sustiva), and the boosted protease inhibitor, lopinavir (Kaletra) – do not reach high enough concentrations to reduce viral load in the male genital tract to ‘undetectable’ levels. The same was found for the ritonavir-boosted protease inhibitors amprenavir (Agenerase), and saquinavir (Invirase, Fortovase), as well as the recently-approved fusion inhibitor, T-20 (enfuvirtide, Fuzeon).

With the exception of indinavir, protease inhibitors (PIs) appear to have poor penetration into the genital tract. This is probably due to the protein binding of protease inhibitors and the high protein content of semen, or to the low levels of polyglycoprotein (Pgp), a substance which pumps protease inhibitor molecules out of cells. Pgp is present at very low levels in cells of the brain and testes.

Viral loads in the genital tracts of women
Several large studies have found a strong association between the level of viral load in blood and the level of viral load in women’s sex fluids. However, there is some evidence that antiretroviral therapy may not always result in an undetectable viral load in both blood and vaginal fluid, especially when a genital infection, like urethritis, is present.

In addition, viral load in the female genital tract varies during the course of a menstrual cycle, even among women on anti-HIV treatment. A recent study of viral load changes during the menstrual cycle found that viral load levels in vaginal fluid tended to peak at the time of menstruation and fell to the lowest level just prior to ovulation

Men with ‘undetectable’ viral loads who are the receptive partner in unprotected anal intercourse may have a much higher risk of transmitting HIV than previously thought

HIV in the rectum
Several studies have shown that detectable levels of HIV may persist in the tissue that lines the rectum even after HIV becomes undetectable in the blood. A very recent study that compared levels of viral load in the blood, semen and the coating of the rectal lining (mucous membrane) in men taking HAART found that viral load was, on average, five times higher in semen and 20 times higher in the rectal lining than in the blood.

These findings imply that men who believe themselves to have an ‘undetectable’ viral load and who are the receptive partner in unprotected anal intercourse may have a much higher risk of transmitting HIV than previously thought.

Sexually transmitted infections
Sexually transmitted infections (STIs) are important co-factors in the transmission of HIV. Not only can STIs enhance the sexual transmission of HIV by increasing the rate of viral shedding, but HIV infection can also increase susceptibility to STIs.

Dr Sadiq and his colleagues have shown that even where viral load in semen is ‘undetectable’ on HAART, sexually transmitted infections can cause viral load rebound in semen . Conversely, even when viral load is rising in blood, viral load in semen can be brought under control if a sexually transmitted infection is treated, reinforcing the view that the blood and the genital tract are largely independent compartments.

However, Dr Sadiq points out that “the role of genital inflammation may not necessarily be critical. In the work we have done in the UK , a minority of men negative for urethritis and sexually transmitted infections had viral loads considerably higher in semen compared to blood.

“Although it is true that the role of the genital tract as a separate compartment is often exaggerated, more work needs to be done to investigate non-inflammatory factors associated with apparent ‘independent’ genital HIV-1 replication.”

It is important to remember that ‘lower risk’ is a relative term, and does not mean low risk or no risk at all.

Is it sensible to make choices about safer sex based on viral load results?
A recent health education campaign by GMFA (a London-based, volunteer-led gay men’s health organisation), which was aimed at gay men who choose to have anal sex without condoms, included information that suggested that a lower viral load could reduce the risk of HIV transmission.

Although studies in heterosexuals have shown that there is a link between higher viral loads and greater sexual infectiousness, and it does seem logical to assume that a lower viral load would mean a lower risk, the reality is much more complicated.

One the one hand, more information is appearing that suggests many anti-HIV drugs don’t reach high enough levels in sexual fluids to suppress HIV levels in the same way that they do in the blood.

On the other, there is still uncertainty regarding how important anti-HIV drug levels are in sexual fluids, and other experts point the finger at sexually transmitted infections (STIs) as the cause of higher HIV levels in sexual fluids.

What is certain is that a viral load test is simply a ‘snapshot’ of levels of HIV in the blood at the time the test was taken, and that since your viral load can rise and fall at any moment, it could have changed since your last blood sample was taken.

Of course, if you are not taking HAART then you are likely to be more infectious than someone taking HAART.

It is also important to remember that ‘lower risk’ is a relative term, and does not mean low risk or no risk at all.

Given the uncertainties surrounding the effects of HAART on sexual infectiousness, is it really sensible to make choices about safer sex based on viral load results?

KEY CONCLUSIONS

A significant proportion of people are now making safer sex decisions based on their – or their partner’s – viral load.

The link between viral load in the blood and viral load in sexual fluids is complicated.

Levels of some anti-HIV drugs are lower in sexual fluids, and this could mean that there is higher chance of HIV transmission even when viral load is ‘undetectable’ in the blood.

Levels of HIV in women’s sexual fluids are also affected by their periods.

Levels of HIV are thought to be twenty times higher in the lining of the arse than in the blood, even in those taking anti-HIV drugs.

Sexually transmitted infections can increase levels of HIV in sexual fluids, whether you are on anti-HIV drugs or not.

Making informed choices about safer sex requires taking on board a lot of information, which can change over time.

The best way to protect your partners from HIV and yourself from STIs is to use condoms for anal and vaginal sex, gloves for fisting, and latex barriers like dental dams for sexual contact that is oral-genital (oral sex) and oral-anal (rimming) sex.

US: Kansas man’s 32 month sentence for HIV exposure doubled

A man already convicted to 32 months’ prison in one Kansas county has been sentenced to another 32 months for the same ‘crimes’. I previously reported his guilty verdict in December, and erroneously had him from Missouri, rather than neighbouring Kansas (I have now corrected the original story). Both trials took place in different counties in Kansas. Since the sentences will run consecutively, his punishment has essentially been doubled.

Update: I originally read the judge’s quote – “I was not aware that those prior convictions involved the same young women.” – as meaning that his prior conviction DID involve the same women; when, actually, it may mean the opposite. So this may not be ‘double jeopardy’.

However, this case is very interesting because his prior conviction is being appealed because, according to the man’s lawyer, “the current Kansas law is unconstitutional…[because] the law essentially made sexual relations illegal for people who have tested positive for HIV.”

This is current Kansas law (taken from The Body.com)

Kans. Stat. Ann. § 65-6005

Class C Misdemeanor

Any person violating, refusing or neglecting to obey any provision of the rules and regulations adopted by the Secretary of Health for the prevention and control of AIDS shall be guilty of a class C misdemeanor.

This case is also interesting because the man’s defence – and remember this is for HIV exposure, not transmission – was that he had an undetectable viral load, and therefore did not believe there was a significant risk of transmission. This was rejected by the judge; however, many informed people with HIV are concluding what many experts privately believe – that an undetectable viral load in the blood almost always means that transmission is at best unlikely, and potentially impossible.

See this very interesting (orginally private) online discussion between Swiss HIV expert, Dr Bernard Hirschl and a group of very informed patient advocates, which highlights the tension between private and public statements.

The full report, from The Emporia Gazette, is below.

Robert Richardson sentenced in HIV-exposure case

Originally published 01:23 p.m., January 17, 2008
Updated 01:23 p.m., January 17, 2008

Robert Richardson was sentenced Wednesday to serve 32 months in prison on each of two cases of exposing people to the HIV virus he carries.

The sentences were handed down by Judge Jeffery J. Larson Wednesday afternoon in Lyon County District Court, after hearing a prepared statement from one of the victims as well as a statement from Richardson.

The sentences are to run consecutively to earlier sentences imposed on those charges in Douglas County. The Douglas County sentences already have been appealed to the Kansas Court of Appeals and have not been heard yet.

Defense attorney Stephen Atherton handed Larson paperwork to initiate an appeal of the sentences at the close of the hearing.

Atherton said after the sentencing that the appeal is based on a belief that the current Kansas law is unconstitutional. He said that the law essentially made sexual relations illegal for people who have tested positive for HIV.

Richardson’s trial had been to the judge, rather than to a jury. Defense and prosecution witnesses stipulated to certain facts in the case, and testimony was given by medical personnel. As part of the agreement, the prosecution had agreed not to oppose concurrent sentencing if the defendant were convicted.

“Mr. Richardson was advised at that time that the court does not have to abide by that agreement,” Larson said.

Neither of the women are from Lyon County, but came to Emporia on several occasions to meet Richardson at a motel while he was here on work-related travel in the fall of 2005, according to testimony presented at Richardson’s preliminary hearing last year.

One of the victims attended the hearing to present a statement about how Richardson’s actions affected her.

She cited the trauma she underwent after learning that she had been exposed to HIV. She had difficulty sleeping and, when she could sleep, she suffered from nightmares, she said; she also was shocked, devastated, frightened, missed work and had difficulty eating.

She said that she had asked Richardson about sexually transmitted diseases and he said that he carried none.

The risk of “losing my life for the mistake of trusting a friend seems like too high a price to pay,” she said. “… It’s taking something that should have been private and intimate in my life and opening it to … ridicule.”

Results have been negative in two tests for HIV “but this experience has made me closed and withdrawn from others,” she said.

She asked the judge to order consecutive prison sentences, rather than concurrent terms.

“There is absolutely no reason to think Mr. Richardson will not endanger the lives of others when he is released,” the victim said.

In a statement to the court, Richardson said that he believed he posed no risk to the women when they had sexual intercourse because his HIV is under control with medications.

“I have a lot more knowledge of this disease myself than the general public,” he said. “I’ve been shown time and again … people will not hear me when I tell about it.”

He said that he cared about the women who later accused him.

“I would have never, never done something I believed would have hurt somebody else,” he said. “ … This disease is not spread by people like me.”

It is spread, he said, by people who do not get tested for HIV and continue to have sexual relations without treatment for the virus.

During the preliminary hearing, evidence was presented that showed Richardson had been diagnosed as HIV positive in 1998.

In his statement on Wednesday, Richardson also asked for visiting privileges with his 20-month-old son, whom he has never seen.

“He has 12 teeth now, and I’ve never held him, or sung him to sleep or kissed his cheek,” he said. “ … I just ask that I can have 10 minutes’ visitation time with my son.”

Larson prefaced the sentencing with remarks to the defendant, saying that he had been impressed by Richardson’s conduct during court proceedings.

“You have proven yourself to be an eloquent speaker in the courtroom, which is not something we see frequently,” Larson said.

He reminded the defendant, however, that while Richardson was aware that the likelihood of transmitting the disease was slight, it did exist and he did not tell the victims of that possibility.

“You made a decision to expose these young women no matter how slight,” Larson said.

When one of them asked if he had an STD, Richardson told her that he did not.

“And (you) were not truthful about it,” Larson said.

He told Richardson that criminal history was one of several factors that needed to be considered in sentencing, including the prior convictions in Douglas County.

“I was not aware that those prior convictions involved the same young women,” Larson said.

After the sentencing, Larson said he would take the visitation request under advisement and discuss risks with jail personnel before making a ruling.

Larson set Richardson’s appeal bond at $50,000 in each case.