Switzerland: Federal Court confirms Geneva HIV exposure acquittal, but does not mention viral load (updated)

UPDATE July 8th 2009

The Federal Court has now confirmed the recent HIV exposure acquital in Geneva, but shied away from explicitly discussing the link between an undetectable viral load and risk of transmission. In effect: they lacked the courage to change HIV exposure law throughout Switzerland.

According to AIDS Geneva’s Deborah Glejser, the Federal Court upheld the Geneva court’s finding that HIV exposure charges were no longer possible because the two female complainants were not exposed to HIV, but they did not actually discuss why this was the case (i.e. because the defendent was on effective treatment).

A brief report (in French) on 20minutes online, notes that the Federal Court emphasized that the women were not infected with HIV during unprotected sex and accordingly are not considered by the criminal courts to be victims. They could have sued for psychological harm in the civil court, but didn’t, and so “in the absence of such a request, their action can only be ruled inadmissible.”

Deborah Glejser tells me that she is extremely disappointed in the Federal Court since this was “a great opportunity missed.” Although HIV exposure remains no crime in Geneva, it will now be down to individual cases – and prosecutors as forward-thinking as Yves Bertossa – to change the law in Switzerland’s 25 other cantons.


Video and reports (in French) are now available following the May 18th meeting convened by Group SIDA Geneve (AIDS Geneva) featuring a discussion between Professor Pietro Vernazza, President of the Swiss Federal AIDS Commission (which produced the January 2008 ‘Swiss statement’ on infectiousness) and Yves Bertossa, Geneva’s deputy public prosecutor, (who pushed for the recent HIV exposure acquital in Geneva), moderated by AIDS Geneva’s Deborah Glejser.

The meeting highlighted the importance of the Geneva court’s ruling that an HIV-positive person on successful treatment, with an undetectable viral load, and no other STI, could not possibly be guilty of exposing another person to HIV if they had not disclosed their status before having unprotected sex.

The Geneva judgement has now been appealed by the complainant which means it will now be heard by the Federal Court, Switzerland’s highest court. Mr Bertossa appeared confident that the Federal Court would confirm the acquittal, making the ruling relevant throughout Switzerland (and possibly providing more legal ammunition for other jurisdictions).

Highlights of the meeting are available to watch on the AIDS Geneva blog. The meeting also received mainstream coverage, including a report in L’Hebdo (Switzerland’s answer to Time or Newsweek) and in the main Geneva broadsheet, L’evenement.

Switzerland: Geneva Court of Justice accepts ‘Swiss statement’, quashes HIV exposure conviction

In the first ruling of its kind in the world, a court in Geneva, Switzerland, has quashed the 18 month prison sentence of a young HIV-positive man previously convicted of HIV exposure, after accepting that the risk of sexual HIV transmission on successful treatment is close to zero.

(Update: A more detailed version of this story now appears on aidsmap.com.)

The Geneva Court of Justice acquitted the young man on Monday, reports Le Temps. He had been found guilty last November after two female complainants testified that they had unprotected sex with him (which is against the law in Switzerland, whether or not there is disclosure, and even if the person with HIV is undiagnosed at the time), even though neither were infected.

Article 231 of the Swiss Criminal Code allows prosecution by the police – without the need for a complainant – of anyone who “deliberately spreads a dangerous transmissible human disease.” Informed consent to unprotected sex does not nullify the offence, and even the attempt to spread a dangerous transmissible human disease (i.e. HIV exposure without transmission) is also liable to prosecution.

During the original court case, reports The Geneva Tribune, an (unnamed) medical expert witness had testified that although treatment greatly reduces the risk of transmission, there remained a residual risk. Although the accused’s lawyer, Nicole Riedle, had entered the Swiss Statement from the Swiss Federal AIDS Commision (EKAF) into evidence, and Geneva’s deputy public prosecutor, Yves Bertossa, had wanted to suspend the hearing to interview an expert, the court declined to accept any further evidence.

Interestingly, it seems that it was Bertossa himself who appealed to the Court of Justice for Monday’s hearing, where the expert testimony of Professor Bernard Hirschel, one of the co-authors of the Swiss statement, persuaded the Court that the man had not been infectious when he had unprotected sex.

This now suggests that in Switzerland effectively treated HIV-positive individuals should no longer be prosecuted for unprotected sex, and it is hoped that this ruling may well have consequences for other jurisdictions that have HIV exposure laws.

This is most urgently required in the US and Canada – however, until nationally recognised experts make statements of their own about the beneficial effect of treatment on transmission, neither legal systems are likely to accept it. Sadly, both the CDC and WHO/UNAIDS have so far summarily dismissed the Swiss statement, despite increasing numbers of experts agreeing with it.

Significantly, Yves Bertossa is quoted in Le Temps as saying that despite the fact that there is still debate regarding the residual risks of transmission in people on successful treatment this should not make a difference to the court: “One shoudn’t convict people for hypothetical risks.”

Ce débat, estime Yves Bertossa, ne devrait pas influencer la justice: «On ne condamne pas les gens pour des risques hypothétiques», fait-il valoir.

Canada: Swiss statement on infectiousness fails to impress judge in Mabior case

The trial of Clato Mabior, the Sudanese migrant found guilty on six counts of criminal HIV exposure in Winnipeg earlier this month, was exceptional in a country where trials for criminal HIV exposure and transmission take place on an almost weekly basis.

First, the Mabior case is difficult for those of us who want to challenge criminal prosecutions for HIV exposure or transmission due to the nature of Mr Mabior’s other offences. It has resulted in a strong-worded editorial in the Winnipeg Free Press (see below) which suggests that the Canadian public cares little about understanding important issues such as the effect of treatment on transmission risk, or why disclosure is not necessarily the best way of protecting oneself and others from HIV.

All HIV infected persons are told of their obligations to sex partners. If they break the rules, they should be subject to a health order and police intervention — second chances merely put innocent persons at risk. Mabior’s warped sense of obligation and desperate attempt to rationalize his depraved conduct indicate a need to balance risk with the swift and heavy hammer of police action when trust is breached.

Second, and even more important, the transcript of the verdict by Queen’s Bench Justice Joan McKelvey, who presided over the trial is the first I’ve seen to seriously consider up-to-date science on the effect of HIV treatment on the risks of HIV exposure, as well as deal with the vexing issue of residual risks with condom use.

The defence argued that Mabior’s state of mind was that he did not believe he was infectious, and submitted the recent Swiss statement on the effect of treatment on infectiousness. However, expert testimony from Dr John Smith, who concluded that Mr Mabior may have been uninfectious for some of the time, also stressed that condoms were only 80% reliable. (An excellent review of condom effectiveness by Michael Carter of NAM, can be found here).

The Crown argued that the CDC and WHO disagreed with the Swiss, and this had the effect of persuading Justice McKelvey that the Swiss were probably wrong, that the Swiss statement only applied to monogamous couples with disclosure.

[81] The evidence of the accused’s undetectable viral load and its relationship to HIV transmission was also considered by the Crown. The Crown submitted that there was no evidence to suggest that a significant risk of serious bodily harm did not exist when viral loads were undetectable. There was argued to be a continuing risk that HIV could be passed through sexual intercourse in such circumstances. The issue was not related to a percentage of risk, but instead concerned the potential consequences of transmission, which were described as lethal. If there was any chance of transmission, there was an intolerable risk. The Thornton case was argued to evidence such a finding.

Justice McKelvey concluded the following:

[101] The statements of the CDC and WHO express very well the continuing risks of the transmission of this disease.

[104] I am also persuaded that endangerment of life has been proven in those circumstances where protection was utilized. This finding is supported by the evidence of Dr. Smith that condoms are considered to be only 80% reliable.

[105] This finding of endangerment of life includes those complainants who were exposed while the accused’s viral load was considered to be low, suppressed or undetectable. I have found the medical and scientific evidence to be very persuasive that even with an undetectable viral load, there remains a risk of transmission of HIV with resultant endangerment of life. This is particularly so given the medical evidence that other influences or factors such as STDs or the use of female contraception can affect or “spike” a viral load.

[106] There was a continuing risk that HIV could be passed upon sexual intercourse in all of the circumstances. I find from the evidence that there was endangerment to life for each of the complainants in this case.

She also noted that the Swiss statement – and the publicity about it – happened three years after the events for which Mr Mabior was on trial.

Worryingly, she also found that since that there is residual risk even when condoms are used, due to their 20% ‘failure’ rate, a “significant risk of serious bodily harm existed”.

[116] I am not prepared to follow the decision in Edwards with respect to the issue of protected intercourse based upon the medical evidence which was presented in this case and the “reliability” factor related to condom use. In this context, it is important to recall the evidence of Dr. Smith which stated that condoms are only 80% reliable and constitute an 80% reduction in HIV incidence. (Report, p. 6). Further, cases such as Thornton have demonstrated that a 99.3% screening safety rate was still considered to be too significant a risk in those circumstances. I am persuaded that in those circumstances where protection was used and the accused was regarded as infectious by the medical evidence, that a significant risk of serious bodily harm existed.

However, she did accept that “the combination of an undetectable viral load and the use of a condom would serve to reduce the risk below what would be considered a significant risk of serious bodily harm.”

I have made the 65 page transcript of Justice McKelvey’s ruling available to download as a pdf document (484 KB) in full from my website: here.

(Click here for a page refresh with all postings on the Clabior case)

HIV precedent
Winnipeg Free Press
July 17, 2008

There is a telling element in the case of an HIV-infected Winnipegger convicted this week of having unprotected sex with six young women. His defence rested on his contention that medical science shows the risk of passing on HIV during sex was so low that he had no responsibility to tell his partners he was carrying the AIDS virus.

Clato Lual Mabior, a man who preyed upon vulnerable young women and girls, is an unlikely authority on the relative risks of transmitting HIV. One victim testified that she was raped and that intercourse had been anal and unprotected, much riskier than protected vaginal sex. As well, the health status of the sex partner can change those odds dramatically: A woman with a sexually transmitted disease is much more susceptible to HIV. Mabior had multiple sex partners, increasing risk further.

None of this, however, is germane to the charges he faced. Anyone who does not inform a sex partner he or she has HIV can be found guilty of aggravated sexual assault. Mabior is facing deportation to his native Sudan, after he serves his sentence here. But that can be little solace to his victims, who faced or face years of uncertainty over their own health. It is little comfort to the general public to know that although Mabior was in contact with public health officials who repeatedly warned him of his obligations to his sex partners, he abandoned any sense of responsibility and decency for his own pleasure. He was not served with a public health order, under which he could have been detained, until police charged him with sexual assault. At that point, the Winnipeg Regional Health Authority took the unprecedented step of issuing a public notice, identifying the fact he was HIV-positive.

Mabior, like another man before the courts on similar charges, was given the benefit of doubt by public health authorities, tasked with counselling and monitoring those with HIV and AIDS. The latter man was given repeated warnings, despite officials learning he was having unprotected sex. Understandably, a public health worker treads a fine line as health practitioner and public watchdog, but the cases indicate the pendulum must swing further into the realm of public interest.

All HIV infected persons are told of their obligations to sex partners. If they break the rules, they should be subject to a health order and police intervention — second chances merely put innocent persons at risk. Mabior’s warped sense of obligation and desperate attempt to rationalize his depraved conduct indicate a need to balance risk with the swift and heavy hammer of police action when trust is breached.

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

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.

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.

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?


  • 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.