PARTNER study findings of zero transmissions amongst mixed HIV status gay and heterosexual couples where the positive partner has a low viral load has important legal implications

As reported today at the 21st Conference on Retroviruses and Opportunistic Infections, the multinational PARTNER study found zero HIV transmissions from condomless sex within mixed-HIV-status couples when the HIV-positive partner had his or her viral load suppressed below 200 copies/mL.

“It really is up to people themselves to judge if anything they do in life is ‘safe’ or ‘not safe,’” Lundgren stressed in the March 4 press conference. That said, these interim results have implications for legal issues around HIV, and for avoiding unnecessary use of post-exposure prophylaxis: If the HIV-positive partner has a fully suppressed viral load, Lundgren observed, “there is no reasonable legal action you could take against people who aren’t using condoms, and there’s really not a major concern if the condom breaks—and there’s certainly no indication for PEP.”

Uganda: ‘Trial by media’ of nurse accused of exposing a child to HIV via injection sets a ‘dangerous precedent’

The ongoing case of Rosemary Namubiru, the Ugandan nurse accused of exposing a child to HIV during the course of administering an injection, is highlighted in a powerful press release issued yesterday by AIDS Free World.  Fortunately, Ms Namubiru is being supported by several advocacy and human rights organisations as well as by individual HIV advocates in Uganda.

The inflammatory media coverage (an example of which is this horribly invasive TV news story, above) not only increased HIV-related stigma and violated Ms Namubiru’s right to a fair trial, but is also being used to help justify the passing of the draft HIV Prevention and AIDS Control Bill 2010 which includes a number of problematic provisions including mandatory HIV tests for pregnant women and their partners, and forced disclosure of HIV status to a newly diagnosed person’s partner by a medical practitioner. In addition, the Bill contains two overly broad and problematic HIV-specific criminal statutes.

In late 2009, a group of more than 50 Ugandan and international organisations and individuals released a report criticising many of the provisions of an earlier draft. That early advocacy resulted in the removal of a criminal penalty for the transmission of HIV from mother to child through breastfeeding.

Advocacy co-ordinated by the Uganda Network on Law, Ethics and HIV/AIDS (UGANET), continues to argue that the unfavourable clauses must be completely removed and that Uganda must assent to the East African Community (EAC) HIV & AIDS Prevention and Management Act which contains provisions meant to supersede Ugandan law.

Read the entire press release below and download the PDF version here.

HIV-Positive Nurse Tried by Media

––Uganda’s first court case dealing with criminalization of HIV transmission could have far-reaching consequences––

February 11, 2014 (Kampala, Uganda)––Rosemary Namubiru, a Ugandan nurse, stands accused of exposing a child to HIV during the course of administering an injection. The incident incited a media firestorm, leading to Namubiru’s arrest and trumped-up charges of attempted murder. That these were baseless charges was confirmed at the opening of the trial today when the charge was changed to criminal negligence; charges that could still carry up to seven years in prison. As the trial begins, it is clear that the damage has already been done. Namubiru was tried and convicted in the public eye by the media, violating her rights and presumption of innocence.

The implications of this case are far-reaching: the Namubiru case appears to be the first in Uganda’s courts dealing directly with HIV exposure and transmission. Efforts to criminalize HIV transmission, and the failure of both the media and the prosecutors office to act responsibly, set a dangerous precedent and could have grave consequences for the fundamental rights of people living with HIV and AIDS in Uganda and beyond.

Case Summary

Rosemary Namubiru, 64, a nurse with 35 years of experience, was working at the Victoria Medical Centre in Kampala, Uganda. On January 7, 2014, Namubiru was attempting to give an injection to an ill 2-year-old patient. Neither she nor the mother could calm the distraught child. With the child writhing and kicking, the needle accidentally pricked Namubiru’s finger; she stopped what she was doing, washed and bandaged her pricked finger, and returned to the child. She was eventually able to administer the injection.

Uncertain about whether the same needle was used throughout, the mother became concerned about the possibility that her child had been exposed to HIV. It was confirmed that Namubiru is HIV-positive and is on anti-retroviral drugs. The child was given an HIV test; the results were negative. A precautionary 2-month post-exposure prophylaxis regimen was initiated, after which the child will be re-tested.

Rosemary Namubiru was arrested in front of a bevy of journalists. She was held by the Criminal Investigations Department for four days before her first appearance in court. She was charged with attempted murder, which carries a sentence of up to life imprisonment, and remanded to Luzira National Prison to await trial. On February 7, 2014, she was denied bail and returned to prison to await trial.  Minutes before the trail began on February 11, 2014, the prosecutor announced the charge would be changed to “negligent act likely to spread infection of disease.”  With this new charge in place, the prosecutor began to call its witnesses, and the trial is ongoing.

Trial by media

Since the moment of her arrest, Rosemary Namubiru has been found guilty in the court of public opinion. Even though research has shown that the likelihood of HIV transmission from a needle puncture is miniscule––only 0.32% of those exposed to HIV through a subcutaneous puncture became infected––Namubiru has been singled out and vilified in the press because of her HIV-positive status.

Here are just a few of the libelous accusations that appeared in the media reports in the immediate aftermath of her arrest:

* An article with the headline “Killer nurse charged with attempted murder” went on to accuse Namubiru of “maliciously infecting her patients, mainly the children with her HIV positive blood.”

* Another claimed that she “drew her own HIV-infected blood and injected it into a two-year old child.”

* Shortly after Namubiru’s arrest, one article stated that police were “investigating allegations that the woman has been engaging in the act for a pretty long time.”

* An article that appeared in The Africa Report speculated about Namubiru’s mental state, calling her “the fiendish nurse” and claiming “the baby’s incessant cries drove her mad.”

* One journalist opined that “as police struggled to find an appropriate charge to punish such an evil act, it became clearer that our laws are inadequate to cover such emerging but deadly crimes.”

* An editorial about the case declared, “The majority of our doctors and nurses may well be great professionals, but it’s also true that among them are many people who do not harbour good intentions for one reason or another. These could be inherently evil-minded, bitter or mentally unstable.”

False and sensational accounts by irresponsible media can prejudice the outcomes of trials and violate the fundamental human rights of people living with HIV and AIDS. Section 28 of Uganda’s constitution guarantees that every person charged with a criminal offence shall “be presumed to be innocent until proved guilty.”

A miscarriage of justice

Even before the trial began, serious questions surfaced regarding Rosemary Namubiru’s ability to receive a fair hearing. From the spectacle of her arrest—recorded by media who were clearly alerted in advance–-to the baseless original charge of attempted murder, and the rush to trial before the defense could prepare, it is clear that this is a sensationalized case.

Throughout the process, there have been numerous violations of Rosemary Namubiru’s rights:

* According to Section 23(4)(b) of the Ugandan constitution, an accused person can only be held for up to 48 hours before a hearing. Namubiru was held for four days before her first court appearance.

* The prosecution argued against granting bail, stating that Namubiru poses a grave risk to the public, even though there is no evidence of intent to commit any crime.

* Namubiru had no lawyer present when police extracted a statement from her; she was unable to access legal counsel until she had been in detention for a week.

* The Prosecutor claimed on February 7, 2014 that the State had completed its investigation and was ready to proceed to trial. Namubiru’s lawyers had not yet seen the State’s evidence, and were informed that they would receive the file the day before the trial was slated to begin. Section 28 of Uganda’s constitution guarantees that every person charged with a criminal offence shall “be given adequate time and facilities for the preparation of his or her defence.”

What are the broader implications of this case?

HIV advocates fear that the Namubiru case could set a dangerous precedent, in terms of both the criminalization of HIV transmission and the treatment of people living with HIV and AIDS.

Many advocates worry that the case could be used to justify passing the proposed HIV Prevention and AIDS Control Bill 2010. The bill includes two overly-broad sections on the criminalization of HIV, as well as a number of other troubling provisions that would restrict the rights of persons living with HIV and AIDS. If the government moves to legislate the criminalization of HIV, specific groups—including pregnant women, who are easily identified within the chain of transmission—could be targeted for criminal charges. (For more on the proposed bill and its implications, please visit www.uganet.org).

AIDS-Free World unequivocally disagrees with the notion of having a separate criminal code for people who are HIV-positive. If a person attempts to do bodily harm to another, regardless of the means, the existing laws should apply. By creating laws that specifically criminalize HIV transmission, the courts place the emphasis on the person, rather than the crime.

The media frenzy created by this case illustrates the degree to which HIV stigma still exists. Many advocates warn that the introduction of HIV-specific laws would be a dramatic setback in efforts to eliminate discrimination, particularly in the workplace.

Expert global guidance on the criminalization of HIV transmission

In its landmark report, the Global Commission on HIV and the Law recommended that:

“To ensure an effective, sustainable response to HIV that is consistent with human rights obligations:

2.1. Countries must not enact laws that explicitly criminalise HIV…exposure. Where such laws exist, they are counterproductive and must be repealed.

2.2. Law enforcement authorities must not prosecute people in cases of HIV…exposure where no intentional or malicious HIV transmission has been proven to take place.

2.4. Countries may legitimately prosecute HIV transmission that was both actual and intentional, using general criminal law, but such prosecutions should be pursued with care and require a high standard of evidence and proof.

—–

Rosemary Namubiru is being supported by several advocacy and human rights organizations, including the International Community of Women Living with HIV, Eastern Africa (ICWEA), Uganda Network on Law, Ethics and HIV/AIDS (UGANET), The National Forum of People Living with HIV in Uganda and AIDS-Free World (NAFOPHANU), and by individual HIV advocates including Canon Gideon Byamugisha, Milly Katana, Major Rubaramira Ruranga.

 

Switzerland: How effective HIV treatment has impacted upon the criminalisation of HIV exposure

The preventative effect on HIV transmission of being virally suppressed due to antiretroviral therapy (ART), as recognized by the Swiss Commission for HIV/AIDS in 2008, has helped to reduce the criminalization of HIV exposure in Switzerland. Since the Swiss statement’s release, there have been acquittals of two HIV exposure cases in 2009, no further prosecutions for HIV exposure and alterations to the law used in these cases, according to study results presented at EACS 2013 in Brussels, Belgium.

Although Switzerland is not the only country to criminalize HIV, the country did have one of the most severe HIV criminal legislation in Europe, together with Sweden and Austria. Swiss law had considered exposure to HIV, defined as sex without a condom between an HIV-infected individual and an HIV-uninfected individual, a criminal offense. This was the case even if the HIV-uninfected partner gave consent, there was no transmission or the HIV-infected partner did not know his or her status.

The criminal cases were based in two articles of the Swiss penal code: 122, which concerns serious bodily harm, and 231, which covers transmission of human diseases. The latter, despite supposedly being a public health measure, had only been invoked in cases of HIV exposure or transmission. From 1990 onward, this legal apparatus had resulted in more than 80 proceedings, with 48 prosecutions — over half of them due to exposure only, with no transmission having happened.

This scenario started changing in 2008, according to Deborah Glejser and Sascha Moore Boffi, from Groupe Sida Genève, a Swiss community-based HIV organization. Glejser performed a survey that reviewed criminal judgments in Swiss cantonal and federal courts, statements by stakeholders and policy makers and records of parliamentary sessions since 2009. Glejser states that the turning point for advocacy work against criminalization was the declaration issued by the Swiss Commission for HIV/AIDS (now known as the Swiss Commission for Sexual Health) in 2008.

The Swiss statement, as it became known, stated that “HIV-positive individuals on effective antiretroviral therapy who have had an undetectable viral load for at least six months and without sexually-transmitted infections are sexually non-infectious.” Due to the worldwide controversy created by the declaration, it was not immediately used in court, with Swiss prosecutors trying to have it removed from debates so as not to be used as a defense. Although there was international acknowledgement of the Swiss statement in 2009, advocacy groups did not wait for it, using policy briefs by UNAIDS to show that criminal laws against HIV transmission had no impact on the spreading of the virus or containment of the epidemic.

A breakthrough came in December 2008 in the case of an HIV-infected man who was condemned to a year and a half of prison by a Geneva court. The man knew he had an undetectable viral load and had sex with two consenting HIV-uninfected women. Although no transmission occurred, the two women sued the man, who appealed the sentence. Three months later, the court cleared him of the charges stating that he was undergoing ART at the time and had little chance to infect his partners. This was the first decision of its kind in Switzerland, but not the only one. A second acquittal happened in 2009. Since then, no further prosecutions have been carried out for HIV exposure when the HIV-infected partner was on effective ART.

For Glejser, these acquittals were a major step forward and set a legal precedent, leading to a significant decrease in the number of prosecutions after 2009. This was supported in later years by changes in legislation, such as the 2012 reformation of article 231, preventing prosecution when informed consent is given. With the new wording, the article will only be invoked for intentional or malicious transmission.

HIV exposure can still be prosecuted under article 122, but thanks to a 2013 ruling by the Swiss federal court (equivalent to the U.S. Supreme Court), HIV transmission is no longer considered serious bodily harm, falling under common assault and making it easier for defendants to use the Swiss statement for defense, as well as resulting in lesser sentences.

Canada: Nova Scotia court acquits young man with undetectable viral load of aggravated sexual assault for HIV non-disclosure despite no condom use

by Cecile Kazatchkine, Senior Policy Analyst, Canadian HIV/AIDS Legal Network

On November 8 2013, the Provincial Court of Nova Scotia in Canada released a very encouraging decision in a case of HIV non-disclosure. A young man with an undetectable viral load who had not disclosed his HIV positive status to his sexual partner before engaging in unprotected sex was acquitted of aggravated sexual assault.

The couple had engaged in vaginal sex on three occasions. Twice, they used a condom. On the third occasion, however, it was found that they had unprotected vaginal sex without ejaculation. At no time, did the young man disclose his HIV status. In fact, the judge found that he had actively concealed that he was HIV positive to his sexual partner who had inquired about rumours that he had AIDS.

In 2012, the Supreme Court of Canada ruled in R. v. Mabior and R. v. D.C., that a person living with HIV has a legal duty to disclose his or her HIV positive status to a sexual partner where there is a “realistic possibility of HIV transmission.” The Supreme Court was clear that where a condom is used and the HIV positive partner has a low viral load, there is no “realistic possibility of HIV transmission” and thus, no duty to disclose under the criminal law. These decisions were understood to mean that a person living with HIV must disclose his or her HIV positive status before having vaginal sex unless he or she uses a condom and has a low viral load.

None the less, the Provincial Court of Nova Scotia acquitted the young man, despite the factual finding that he had engaged in unprotected sex. The Court described two different routes to its conclusion.

The first route relates to the analysis of the consent given by the complainant. In Canada, one element that the prosecution must prove in a non-disclosure prosecution is that the complainant would not have consented to sex if he or she had known about his or her partner HIV positive status. At trial, the complainant testified that had she known that the accused was HIV positive she would not have had unprotected sex with him. But she also said that had she known that his risk of transmitting HIV was virtually non-existent, she would have consented.

As described by Justice Campbell, that the risk of transmission was infinitesimally small was the “true state of affairs” based on the evidence before the Court. Indeed, the unchallenged medical expert called by the defence testified that he did not believe that there was any risk of transmission in this case. He further concluded that “in an act of sexual intercourse someone with an undetectable viral load such as [the accused] had a one in one million chance of transmitting the virus. That might be as high as one in 500 000 (…)” and described the risk as “very close to zero.”

According to the Court, the complainant’s statement that had she known the extremely low degree of risk she would have consented to unprotected sex with the accused is part of the context that needs to be taken into account when determining whether the consent was vitiated or not. As summarised by Justice Campbell:

[t]o ignore [the complainant]’s acknowledgement that with full knowledge of the facts she would have had unprotected sex with [the accused] would amount to a strange privileging of half-truth, deception and misconception over truth. The truth is that she would have had unprotected sex with him had she known the facts. My conclusion is that her consent was not vitiated by the deception.

The second route relates to the realistic possibility of transmission. The Court found that that element had not been met either. This conclusion is at odds with the predominant interpretation of Mabior and D.C. — that unprotected sex, even with an undetectable viral load, would necessarily be considered as representing a “realistic possibility of transmission.”

In a recent decision, the Ontario Court of Appeal had ruled that there was no need for the Crown to bring medical evidence of “a realistic possibility of transmission” in each case. The Court of Appeal ruled that proving unprotected sex would be sufficient to establish “a realistic possibility of transmission” and that evidence of the accused’s exact viral load at the time and the associated degree of risk of HIV transmission would be irrelevant in such circumstances. (There was no medical evidence on the risks of transmission before the Ontario Court of Appeal or evidence of the accused’s viral load.)

The Provincial Court of Nova Scotia, however, did not accept that the Supreme Court of Canada or the Ontario Court of Appeal decisions had definitely closed the doors to different findings with respect to whether “a realistic possibility of HIV transmission” existed based on the medical evidence before the judge in a particular case.  Concerned about the potential for discrimination against people living with HIV in the absence of any risk, the Provincial Court of Nova Scotia stated that the Supreme Court decisions “can and should be interpreted in a way that in not incompatible with an approach that respects both the scientific evidence in each case and the fact finding role of trial courts.”  According to the Court, “[t]he Supreme Court did not intend (…) to impose evidentiary findings on trial courts that are incompatible with the evidence actually before those courts.”

In the case at bar, the medical evidence called by the defence was clear: the risk of transmission was approaching zero. The Court was careful to specify the risk determination was a finding of fact (versus a finding of law), specific to the case, and ruled that the legal conclusion arising from that fact was that, even in the absence of a condom, the legal test of a “realistic possibility of transmission” was not met.

This decision is an encouraging development in the law on HIV non-disclosure in Canada. While trial court decisions have limited precedential authority in the Canadian legal system, this decision remains important as it demonstrates that Mabior and D.C — which have been strongly criticised for being at odds with the science and previous case law — need not prevent science from prevailing over prejudice. Medical evidence can and should play a critical role in cases of HIV non-disclosure, exposure and transmission, something both defence lawyers and medical experts in HIV will need to be very mindful of.

Mainstream media news reports can be found here and here.  The full judgement is below.

R. v. J.T.C. 2013 NSPC 105 (November 8 2013)

Sweden: Court of Appeal acquits ‘HIV exposure’ case, recognises National Board of Health and Welfare endorsement of ‘Swiss statement’, Minister for Social Affairs will consider reviewing application of law

Today, the Court of Appeal for Skåne and Blekinge has acquitted a man from Malmö previously convicted of exposing four women to HIV on the grounds that since he had a stable undetectable viral load on antiretrovirall treatment with no other STIs he could not cause danger to another person.

He had previously been sentenced to a year in prison and and fined 150,000 kronor (€17,000) by the lower court, but was released last week pending the appeal after the Court consulted experts from the Swedish Institute for Communicable Disease Control (SMI).

A press release from the Swedish Courts notes the following (unofficial translation)

The Court of Appeal, for its assessment of the probability of transmission by sexual intercourse, had access to information other than that which existed at the district court. The Court of Appeal has obtained an expert opinion from the Swedish Institute for Infectious Disease Control (SMI) regarding the risk of transmission of HIV through unprotected sexual intercourse. Furthermore, Professor Jan Albert of the Karolinska Institute, was consulted as an expert.

For expert opinion and data Jan Albert has said it can be clearly concluded that the risk of transmission of HIV in vaginal intercourse without a condom is very low, provided that the HIV-infected party is on stable HIV treatment. For an HIV-positive patient to be considered to be on stable HIV treatment, as is apparent from the opinion, it requires that the patient has a consistently high adherence to their medication, that at least two consecutive viral measurements with 3-6 month intervals show that patient’s virus levels in the blood were below the lowest detectable levels in routine testing, and the patient does not carry any other sexually transmitted infection .

The Court of Appeal noted in its judgment that the investigation did not show anything other than the accused was on stable HIV treatment during the time that the charges related to, and based on what the SMI and Jan Albert have said about risk of infection, assessing the likelihood that sexual intercourse to which the charges relate means that the risk of HIV transmission was so small that no real danger could be presupposed. Since this does not meet the required elements of the crime of creating danger to another, the indictment was dismissed.

Major policy shift

The ruling reflects a major shift in policy announced last week by the National Board of Health and Welfare (Socialstyrelsen).

In a press release entitled, ‘Effective treatment reduces the risk of infection by HIV’, the agency, which is part of the Swedish Ministry of Health and Social Affairs, clarified the treating physician and the individual’s responsibility under the Communicable Diseases Act – which creates a ‘disclosure obligation’ for anyone with an infectious disease.

The criteria to not be legally bound to disclose are very similar to those set out in January 2008 by the Swiss Federal AIDS Commission’s ‘Swiss statement’. They are, as follows:

For treatment of HIV infection to be considered well-functioning, patients must be highly adherent to antiretroviral treatment. Virus levels in the blood should be tested regularly, verified by two measurements between three to six months apart and the result should be virus levels below 50 copies per milliliter.

Follow-up tests should be performed two to four times a year. No other ongoing sexually transmitted disease should be suspected, as this could increase the risk of infection. When these criteria are met, the SMI estimates that infectivity is minimized in a person infected with HIV similar to wearing a condom during sexual intercourse.

HIV infection is one of the dangerous diseases included under the Communicable Diseases Act. The law states that the attending physician has the responsibility to advise people with dangerous diseases of appropriate conduct. It also says that if the person knows, or has reason to suspect, that he or she is carrying a contagious disease that person is obliged to protect others from infection.

The attending physician, when he or she takes a position on the conduct that the individual should have, should consider that a person with HIV infection who is on well functioning treatment is not required to inform their sexual partners about their infection…

People who have HIV infection, however, must act on their own initiative if there is a significant risk, for example if he or she also gets another sexually transmitted infection. This is true no matter what advice the person has previously received by their treating physician. A significant risk includes situations when someone risks coming into contact with his or her body fluids, for example during blood tests, at the dentists, or during sex with a risk of bleeding.

Coaltion of HIV experts

The National Board of Health and Welfare was itself influenced by a coalition of HIV experts. An editorial by Johan Carlson (Director of SMI), Anders Tegnell  (State epidemiologist, SMI), Jan Albert (Professor of Communicable Diseases, Karolinska Institute and Senior Physician at Karolinska University Hospital) and

Anders Sönnerborg (Professor of Clinical Virology,Karolinska Institut and Senior Physician at Karolinska University Hospital) entitled ‘HIV is no longer a life-threatening disease’, also published last week, heralded this new (for Sweden) paradigm.

Today, 21 October, SMI publishes along with Reference Group for Antiviral Therapy (RAV) a report summarising the state of knowledge with regard to the significant reduction in infectivity in treated HIV infection.

SMI and RAV estimates that the infectivity of a patient living with HIV and who have been stabilized on treatment is very low by sexual contact and minimal if a condom is used in vaginal and anal intercourse. This applies provided that there is no other sexually transmitted infections that can affect the risk of HIV transmission. It is therefore important to always use a condom, especially to protect against other sexually transmitted infections, but also to minimize any residual infectious risk for HIV.

This knowledge provides two important conclusions. Firstly, we improve the chances of early diagnosis and initiate treatment as early as possible…

The second conclusion is that current knowledge about HIV will have to influence society’s attitudes to and treatment of people living with HIV. Knowledge about HIV, how the virus is transmitted and what it means to live with HIV, need to be improved in the whole society. Especially within the health care and disease control work, but it is equally important in other areas of society, such as education and social services, the media and the judiciary.

Minister for Social Affairs will consider reviewing application of law

Göran Hägglund, Sweden’s Minister for Social Affairs reacted to the report by telling Sweden’s public broadcaster, SVT, that he will consider reviewing the application of law as it relates to HIV non-disclosure, exposure and transmission.

“If you have an illness that has the potential to infect, it is reasonable to disclose,” he said. “I just think that one would like to know in this situation. But the application of law is another question. Where it is possible to discuss how the law looks and applied, it may be time to consider a change.”

This policy shift is a major victory for the advocates who have been working tirelessly to change Sweden’s draconian attitude towards people living with HIV, notably the partnership of RFSU (the Swedish Association for Sexuality Education), HIV-Sweden and RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) who have been lobbying and campaigning to raise awareness and advocate against Sweden’s over-punitive HIV-related policies.

Hägglund also reacted to a recently-published editorial by Marielle Nakunzi, a lawyer at RFSU, which argued that the justice system has such an outdated view of HIV that it still lives in the 1980s.

“It is a matter of making sure that we always have laws that are in tune with the state of knowledge available,” he told SVT. “Therefore, we should always consider the knowledge we have. It’s about educating the justice system.”

Canada: Woman found not guilty of aggravated sexual assault for HIV non-disclosure before oral sex

A court in Barrie, Ontario has found a woman, ‘JM’ not guilty of aggravated sexual assault for not disclosing her HIV status before her male partner performed oral sex on her.

The Barrie Advance reports that

Justice Gregory Mulligan… ruled [‘JM’] was not guilty of the same charge when a man performed oral sex on her in a public park, stating the chances of a man contracting the disease in that manner were so “miniscule” she wasn’t required to inform him.

“This is considered a low risk. There are no documented cases of HIV being transmitted in this way,” Mulligan said. “It is so low that it does not give rise to a risk of bodily harm.”

In his ruling, Mulligan relied on evidence from Dr. Irving Salit of the Toronto HIV Clinic who said the chances of a man contracting the disease by performing oral sex on a woman with a low viral load were the same “as having a piano fall on you while walking down the street”.

Dr. Salit also testified that it was nearly as unlikely for a man to get the disease if he had unprotected intercourse with a woman in [‘JM’]’s symptom-free condition. As well, clinical trials show using a condom to protect against HIV is of little benefit when a person has a low viral load.

It was the oral sex incident that led to [‘JM’] being arrested and having police put out a public notice looking for other men who may have had unprotected sex with her.

A group of HIV organizations, including the Canadian HIV/AIDS Legal Network and the International Community of Women with HIV/AIDS, issued a press release (available in full below) welcoming the verdict.

“She should never have had to fight the oral sex charge,” said Jessica Whitbread, Global Chair of the International Community of Women with HIV/AIDS. “We deplore the Crown’s insistence on prosecuting this charge despite what the science tells us about the risk of transmission in cases of oral sex.”

“Today’s decision sends an important message to Crown prosecutors who have tried to expand the scope of the criminal law on HIV non-disclosure: criminal prosecutions for oral sex are not warranted,” said Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network.

However, ‘JM’ was nevertheless convicted of one count of aggravated sexual assault for not disclosing her HIV status before having unprotected vaginal sex, although at the time her viral load was undetectable (meaning the risk of transmission was close to zero).

As the press release chillingly reminds us, “she now faces potential jail time on charges similar to those faced by violent rapists.” Her sentencing is next week.

According to the Barrie Advance

Defence lawyer Angela McLeod expects “a battle” during the hearing because she has been told the Crown’s office is seeking a “multiple-year” penitentiary term, which could mean up to five years. “That’s outrageous,” McLeod said outside the court. “The men who going out trolling for prostitutes and not wearing condoms should be the ones going to jail.”

McLeod said she was somewhat perplexed by a finding of guilt because Justice Mulligan dismissed the oral sex charge based on scientific evidence but gave little weight to the same science for the intercourse charge. “I don’t understand it because he relied on the science for one charge but not the other,” McLeod said.

‘JM’ is only one of a handful of people in Canada who have been charged for HIV non-disclosure more than once. According to this 2012 article in The Toronto Star, in 2005, she was convicted of failing to disclose her HIV status to two soldiers from CFB Borden before they engaged in unprotected intercourse. She was sentenced to one year of house arrest. In 2007, she was charged again with aggravated sexual assault, accused of having unprotected sex with a man in Barrie, Ontario and not disclosing, although the charge was ultimately withdrawn by the Crown.

The case highlights the urgent need for prosecutorial guidelines in Canada. More than 1,000 supporters of the Ontario Working Group on Criminal Law and HIV Exposure (CLHE) have already called on the Ministry of the Attorney General of Ontario to consult with the HIV community as well as experts in HIV medicine and science when they put together their long-awaited prosecutorial guidelines later this year.

“We continue to press the Ministry to fulfill its promise and develop prosecutorial guidelines in accordance with science, international recommendations and the expertise of people living with HIV and their allies to put an end to unjust and harmful prosecutions against people living with HIV,” concludes Elliott.

Woman found not guilty on oral sex count, court sends important message to prosecutors

US Public Health Service updates occupational PEP guidance

Healthcare workers exposed to HIV at work should immediately begin four weeks of post-exposure prophylaxis with three antiretroviral drugs, according to new recommendations. The three-drug guideline is a change from the 2005 recommendations of the U.S.

US: House Appropriations Committee passes amendment that would fund review of HIV-specific criminal laws

The United States is closer than ever before in ensuring that their HIV-specific laws are reviewed and amended in order to be consistent with current medical and scientific knowledge.

Earlier this week, the U.S. House Appropriations Committee passed an amendment proposed by Congresswoman Barbara Lee to the FY2014 Commerce-Justice-Science Appropriations Act that would require the Attorney General to initiate a review of Federal and State laws, policies, and regulations regarding criminal and related civil commitment cases involving people living with HIV.

This wording is very similar to the content of Lee’s REPEAL HIV Discrimination Act, which was re-introduced in May with bi-partisan support, and which currently has 32 co-sponsors.

“HIV criminalization laws breed, discrimination, distrust, and hatred. These laws are based on fear, not science. This is an important first step in ensuring that our laws reflect current scientific understandings of HIV.” notes Congresswoman Lee in a press release. This amendment passed on a voice vote as part of the manager’s amendment.

The amendment reads as follows:

Modernizing laws with respect to people living with HIV/AIDS.

The Committee is aware of the position of the President’s Advisory Council on AIDS (PACHA) that current criminal laws require modernization, should be consistent with current medical and scientific knowledge and avoid imposition of unwarranted punishment based on health and disability status.  The Committee directs the Attorney General, within 90 days following enactment of this Act, to initiate a review of Federal and State laws, policies, and regulations regarding criminal and related civil commitment cases involving people living with HIV/AIDS. The Committee further directs the Attorney General, no later than 180 days from initiating the review, to make best practice recommendations to ensure such policies do not place unique or additional burdens on individuals living with HIV/AIDS and reflect contemporary understanding of HIV transmission routes and associated benefits of treatment.

The Appropriations Act (officially titled ‘S.1329 : An original bill making appropriations for Departments of Commerce and Justice, and Science, and Related Agencies for the fiscal year ending September 30, 2014, and for other purposes’) has now been placed on Senate Legislative Calendar.

The Sero Project has issued a press release welcoming the amendment and explaining what it means for advocacy against overly-broad HIV-specific criminal laws in the United States.

SERO. Appropriations Amendment Release

UK: NAT (National AIDS Trust) produces new guide for police on occupational exposure to HIV

NAT (National AIDS Trust) is calling on all UK police forces to ensure their guidance and policies on HIV are up-to-date – and to use NAT’s new resource ‘HIV: A guide for Police Forces’ for this purpose.

“HIV: A guide for police forces” is endorsed by BHIVA (the British HIV Association) and includes information about how HIV is and isn’t transmitted, what to do if you are exposed to HIV, how to respond to someone with HIV, and information about criminal prosecution for HIV transmission. It also includes an easy-to-use check-list to ensure blood borne virus training and occupational health policies are fit for purpose and up-to-date.

The guide was produced in response to a review of a sample of policies and guidelines from 15 police constabularies out of the 50 in the UK, revealed in a 2012 report. NAT found some forces wrongly cited spitting, scratching, urine, sharing toothbrushes and handling or lifting of people as routes to transmission and also found policies recommending the use of “spit hoods” to protect police from HIV transmission, or stating that people living with HIV and in custody should be held separately and that interviews should be conducted through cell doors or cell door hatches.

The guide is especially targeted at police occupational health trainers, health and safety officers and medical advisers in police forces to improve existing HIV training and guidance. Advocates working with police in jurisdictions around the world may also find this guide useful as a way to encourage the police to update their training and improve the way they treat people living with HIV.

“By producing this guidance we have given police forces the information and evidence they need to ensure their policies and procedures on dealing with HIV are up-to-date and non-stigmatising and to help reduce unnecessary worry about HIV transmission amongst police officers.  We are now calling on them to make sure it is put into practice.”

Deborah Jack, Chief Executive of NAT

HIV: A Guide For Police Forces

US: LA Times publishes editorial in favour of REPEAL Act, highlights spitting and biting prosecutions

A bipartisan bill introduced in the House calls for a review of state laws that criminalize behavior by people with HIV, including many laws that seem anachronistic or inappropriate given what has been learned during the last three decades about the transmission and treatment of the virus that causes AIDS. The bill should be passed.

The Repeal HIV Discrimination Act of 2013, introduced by Reps. Barbara Lee (D-Oakland) and Ileana Ros-Lehtinen (R-Fla.), would not by itself repeal any state laws. The federal government can’t do that. But the bill would encourage state governments to repeal laws that are based on outdated fears. It is backed by the Presidential Advisory Council on HIV/AIDS and is in line with the UN’s stand that criminalization should be limited to cases in which a person knows he or she has HIV, intends to transmit it and successfully does so.

There are HIV-specific criminal statutes on the books in 32 states, and some are fairly common sense. In California, which has one of the better laws, people who know they are HIV positive must disclose that fact to their sex partners before having unprotected sex. If they do not, and if they “act with intent to infect,” they may be charged with a felony.

But 13 states have laws that make it a crime for an infected person to spit at, bite or throw their blood on others. That might have seemed reasonable at the height of the panic over AIDS, but we now know it is not. According to the Centers for Disease Control and Prevention, only blood, semen, vaginal secretions and breast milk can transmit the virus. And to do so, they must come in contact with a mucous membrane or damaged tissue or be injected into the bloodstream. Saliva does not transmit HIV. It is extraordinarily rare for a human bite to transmit HIV.

In the last few years, there have been dozens of cases documented by the Center for HIV Law and Policy in which people have been charged with criminally transmitting HIV by biting or spitting (even though no transmission occurred) or convicted of failing to disclose to a sexual partner that they were HIV positive (even if the virus was not transmitted). In some states, people with these convictions have to register as sex offenders.

Though treatment has come a long way, HIV is still an extremely serious and basically incurable virus, and the House bill would not stop the prosecution of people who deliberately (and successfully) infect others. It is certainly wrong for infected people to cavalierly or maliciously have sex without disclosing their HIV-positive status and without taking precautions against transmitting the virus. But there is no reason to keep the laws against spitting and biting on the books. They are based on fears that have since been disproved by science.