Australia: Analysis of the limitations of scientific evidence to prove timing and direction of alleged HIV transmission in three criminal trials

This article by Paul Kidd in the March 2016 issue of HIV Australia examines the use of HIV phylogenetic analysis in three Australian criminal trials. It argues that courts in Australia appear to accept forensic evidence uncritically. As the forensic methodology used in phylogenetic analysis is inherently limited, it argues there is risk of miscarriage of justice where this type of evidence forms a substantial part of the prosecution case.

Read the full article at:

Switzerland: Two (alleged) HIV transmission convictions this month despite many positive changes in law

On January 1st 2016, Switzerland’s Epidemics Act 2013 finally came into effect, which

repeals and replaces the old Epidemics Act and in doing so, changes Article 231 of the Swiss Penal Code, which in the past has been used to prosecute people living with HIV for transmission and exposure, including cases where this was unintentional. The changes mean that a prosecution can only take place if the motive of the accused is to infect with a dangerous disease. Therefore, there should be no further cases for negligence or cases where the motive was not malicious (i.e. normal sexual relationships).

Despite this, and a 2013 Swiss Federal Supreme Court ruling that HIV transmission may no longer be automatically considered a serious assault under article 122 of the Swiss Criminal Code, and could be prosecuted as a common assault under under article 123, there have been two HIV transmission prosecutions using article 122 in the past two weeks.

Alleged transmission via oral sex with disputed disclosure: Aarau District Court, Aargau

On February 1st, a Liberian man, 48, was convicted of (allegedly) transmitting HIV to his ex partner despite both parties testifying to consistent condom usage during vaginal sex. The complainant, a woman in her 50s, remained with the man four years after her diagnosis, and only made the complaint after he left her and married another woman, with whom he now has three children.

According to a news report in the Aargauer Zeitung, the court appeared to believe that she acquired HIV from the man via oral sex, which both sides testified was the only time they had sex without condoms.  Whilst he testified he had disclosed early in the relationship, she claims he only disclosed following her diagnosis.

He was found guilty under article 122, and was given a year suspended sentence. He was also ordered to pay compensation to the complainant of CHF 30,000 (approx. €27,000).

Alleged transmission via vaginal sex with a very low viral load, without disclosure: Geneva Criminal Court, Geneva.

On February 10th, a Turkish man, 50, was convicted of (allegedly) passing HIV to his ex partner despite having a low viral load.

According to a report on 20 Minutes and further information from another journalist in the courtroom, the court heard that the man was diagnosed with an almost undetectable viral load: his doctor told him he would not need treatment for many years, and that his risk of transmission was 1-in-a-1000.

His doctor told him to inform his partner, but he testified that he did not because he was afraid she would leave him and he did not believe he could infect her.

Although the Swiss Federal Court has previously accepted that a person with an undetectable viral load could not expose someone to HIV,  in this case the man was not on treatment (a key criterion of the Swiss Statement) and it was also alleged that he had infected the complainant.

He was found guilty under article 122, and given two years’ suspended sentence. He was also ordered to pay compensation to the complainant, a woman in her forties, of CHF 40,000 (approx. €36,000).

A second charge under, originally article 231, was not retained because the judge found that the element of malicious intent required since the change of law in January, was absent.


Despite significant law reform in Switzerland, potentially unjust prosecutions continue to occur.  However, the penalties are less severe than previously found in a 2009 study of all Swiss prosecutions.

Most prison sentences ranged between 18 months and 4 years, plus a fine of up to CHF 80,000 (c. €53,000) as compensation to the ‘victims’.

However, in neither case was there any mention of the court relying on expert witnesses or scientific evidence – notably the use of phylogenetic analysis to help ascertain if the transmissions were linked or unlinked – which would have been appropriate given the unusual nature of both alleged transmissions.

Switzerland has one of the world’s highest percentages of diagnosed people on treatment with an undetectable viral load, close to the UNAIDS 90-90-90 target of 73% of all people living with HIV virally suppressed by 2020.

This highlights that even at this level of national HIV treatment success, a significant minority of people with HIV will be diagnosed but not uninfectious, especially disenfranchised individuals such as migrants, and therefore vulnerable to prosecution.

It is likely both men’s risk of prosecution was already higher than usual because their partners were (probably) Swiss-born older women who did not consider themselves at risk of HIV.

Both cases therefore highlight that physicians and other health care workers need to ensure that all of their patients fully understand the risks of HIV transmission when not on treatment – even with a low viral load and/or during oral sex – and potential prosecution when disclosure does not happen, or cannot be proven.

US: A panel of health experts blasts HIV criminalisation laws as a failure that keep people from getting tested and ignore the current state of science

A panel of health experts blasted HIV criminalization laws in nearly three-dozen states as a failure, criticizing the statues for adding stigma to HIV, keeping people from getting tested, and oppressing already marginalized populations such as LGBT people.

And the laws – in place in Georgia and states across the South – or prosecuting people for HIV exposure using other criminal statues – which happens in Texas and four other states – also ignore that partners in consensual sex acts share responsibility for their sexual health, according to Scott Schoettes, a senior attorney and HIV Project Director at Lambda Legal.

“The story is about the AIDS monster out there trying to infect everyone and that is not the case,” Schoettes said (top photo). “Sexual health is a shared responsibility. It creates a sense of false security for the person who is negative – ‘There is this law in place and I can sit back and wait for someone to tell me.'”

He said the laws keep people with HIV from getting tested and few, if any, of the laws require prosecutors to show that an HIV-positive person had any intent to infect a sex partner. Nevermind, he adds, that it’s difficult to prove that someone did disclose their HIV status before sex and once convicted, some state laws call for them to be labeled as sex offenders.

“It becomes a he said, he said and the person with HIV, when you get into that courtroom, is naturally at a disadvantage. A lot of people think that when you have HIV, you have done something wrong. We are still fighting that misperception,” Schoettes said. “When you have a jury that is deciding the fate of someone, they are disconnected from the culture of the folks that they may be actually adjudicating.”

And that can mean steep sentences for people convicted under HIV criminalization laws. In July, Michael Johnson – a black, gay, HIV-positive college wrestler in Missouri – was sentenced to 30 years in prison for infecting a sex partner and putting four others at risk, though prosecutors didn’t show in court that Johnson was the man who infected him. In South Carolina, former gay Atlanta man Tyler Orr faces two counts of exposing another person to HIV and up to 20 years in prison – though he says he did disclose his HIV status to his sex partner.

Schoettes’ comments came during a panel discussion during the 2015 National HIV Prevention Conference in downtown Atlanta earlier this month. He was joined by Randy Mayer, chief of the HIV, STD and Hepatitis Bureau of the Iowa Department of Public Health; Tami Haught, an activist who led efforts in Iowa to reform its HIV criminalization law; David Knight, a trial attorney with the Civil Rights Division of the U.S. Department of Justice; and Terrance Moore, deputy executive director with the National Alliance of State & Territorial AIDS Directors.

‘It’s not a slam dunk’

Knight said the HIV criminalization laws don’t reflect the current state of science and risk surrounding HIV and pointed to a document released earlier this year by the Justice Department calling on states to reform their HIV criminalization laws.

“Two things that we really want to think about is that intentional transmission is atypical and uncommon, and HIV stigma hampers prevention,” Knight said.

The Justice Department document calls on states to tighten their HIV criminalization laws to scrap HIV-specific criminal penalties with two exceptions – when an HIV-positive person commits a sex crime where there is risk of transmission and when there is clear evidence that an HIV-positive person intended to infect another person and engaged in risky behaviors to do so.

But changing HIV criminalization laws in the three-dozen states that have them is a tough haul, Mayer (second photo) and Haught said. They built coalitions across groups and enlisted public health experts to help revise the law in Iowa, a measure passed in 1998 that carried harsh penalties and 25-year prison terms that were often doled out to those convicted.

“In my experience, almost everyone got the 25 years even though that was the maximum,” Mayer said. “It’s not a slam dunk. It’s not an easy sell. Many people, even people living with HIV find themselves on both sides of this issue.”

Iowa lawmakers revised the state’s HIV criminalization law in 2014 to treat HIV like other communicable diseases such as hepatitis and tuberculosis. The law also requires that prosecutors prove intent to transmit, Mayer said.

“We had to bring in the different coalitions and bring in partners. Lawmakers don’t care what is fair and what is right. But they will listen to the public health side of the law,” Haught said. “Iowa’s law was significantly modernized and everyone is better for it.”

The panelists argued that rather than criminalizing HIV-positive people, and adding to the stigma they face, they should be pushed to treatment options. The Centers for Disease Control & Prevention has said getting HIV-positive people tested and connected to care and treatment is key to controlling the disease. Undiagnosed HIV infections fuel the HIV epidemic, Eugene McCray, director of CDC’s Division of HIV/AIDS Prevention, said during the Atlanta conference.

“Getting people into care is a better way to reduce transmission than these laws,” Mayer said.

Originally published in Project Q

Prison time for HIV?

Prison time for HIV? It’s possible in Veracruz

El Daily Post, August 6th 2015

New legislation passed by the Veracruz state Congress calls for up to five years in prison for “willfully” infecting another with HIV, which can lead to AIDS. The measure is fraught with legal, medical, public health and human rights problems, but supporters insist it will help protect vulnerable women.


The Veracruz state Congress has unanimously approved legislation that calls for prison time for anyone who intentionally infects another person with the HIV virus or other sexually transmitted diseases.

The amendment to the state penal code makes Veracruz the second Mexican state (after Guerrero) to criminalize the sexual transmission of illnesses. Another 11 states have sanctions in the books for infecting others with “venereal diseases,” a term and concept no longer used in the medical community.

But Veracruz has stipulated a more severe punishment than the other states — from six months to five years in prison. Guerrero also has a maximum of five years, but it’s minimum is three months.

The bill was promoted by Dep. Mónica Robles Barajas, a member of the Green Party, which is allied with the ruling Institutional Revolutionary Party. She said the legislation is aimed at protecting women who can be infected by their husbands.

“It’s hard for a woman to tell her husband to use a condom,” she said in an interview with the Spanish-language online news site Animal Político.

The legislation, however, raises serious questions, both legal and medical, as well as concerns about human rights.

The most obvious problem is the notion of “intentional” infection. Robles emphasizes that the bill is based on a “willful” passing of the virus, which she defines as a carrier having sexual relations when he or she is aware of his or her HIV infection.

But the notion of intentionality in such cases is a complicated one for prosecutors, legal experts say. The he-said/she-said factor can be a sticking point, according to Luis González Plascencia, a former head of the Mexico City human rights commission, with the accusation likely to be based on one person’s testimony.

“There could be ways to show through testimony that there was an express intention to infect,” González told Animal Político. “But that’s always going to be circumstantial.”

A likely abuse of the law, he said, is attempted revenge or blackmail. An angry spouse or other partner can, with a simple declaration, create a legal nightmare.

Even if the issue of intentionality can be overcome, the very notion of criminalizing HIV infection is controversial. AIDs and human rights experts are against it.

One of them is Ricardo Hernández Forcada, who directs the HIV-AIDS program at Mexico’s National Human Rights Commission (CNDH). International experience, he says, indicates that punitive policies accomplish little besides government intrusion into private life. (Eastern Europe and Southeast Asia are regions where laws similar to the new one in Veracurz have existed.)

A Veracruz non-governmental organization called the Multisectoral HIV/AIDS Group issued a communiqué in response to the new legislation, declaring, “Scientific evidence shows that legislation and punishment do not prevent new infections, nor do they reduce female vulnerability. Instead, they negatively affect public health as well as human rights.”

González concurred. “The only thing that’s going to happen is that there will be another crime in the penal code that won’t accomplish anything except generate fear,” he said.

The Multisectoral Group also pointed out a disconnect between the law and medical science. It’s  virtually impossible, the group says, to determine with certainty who infected whom with a sexually transmitted disease.

“Phylogenetic analyses alone cannot determine the relationship between two HIV samples,” the group said in its release. “They cannot establish the origin of an infection beyond a reasonable doubt, or how it occurred, or when it occurred.”

Robles, for her part, objects to the notion that the legislation criminalizes HIV carriers, insisting that the target is the intentional infection of another through sex. She emphasized that the aim of the new law is to protect women, who are often in a vulnerable situation.

“It’s directed much more at protecting women than homosexual groups,” she said. “There is a high incidence among women because there is no awareness of the risk they run.”

Opponents, however, see the new law as a step backward for men and women, and for public health in general, insisting that penalization comes at the expense of prevention.

“Knowing that they could be at risk of prosecution, people won’t get tested,” the CNDH’s Hernández Forcada said. “These measures inhibit people’s will to know their diagnosis.”

UNAIDS Reference Group on HIV and Human Rights updates statement on HIV testing to include the “key trend” of “prolific unjust criminal laws and prosecutions”

The UNAIDS Reference Group on HIV and Human Rights has updated its statement on HIV testing  — which continues to emphasise that human rights, including the right to informed consent and confidentiality, not be sacrifced in the pursuit of 90-90-90 treatment targets — in the light of “three key trends that have emerged since the last statement regarding HIV testing was issued by the UNAIDS Reference Group (in 2007).”

One of these is “prolific unjust criminal laws and prosecutions, including the criminalization of HIV non-disclosure, exposure, and transmission.” The other two involve the recognition that HIV treatment is also prevention, and policies that aim to “end the AIDS epidemic as a public health threat by 2030.”

This statement is an important policy document that can be used to argue that public health goals and human rights goals are not mutually exclusive.

The Reference Group was established in 2002 to advise the Joint United Nations Programme on HIV/AIDS (UNAIDS) on all matters relating to HIV and human rights. It is also fully endorsed by by the Global Fund to Fight AIDS, Tuberculosis and Malaria Human Rights Reference Group.

This statement is issued at a time when UNAIDS and the Global Fund are renewing their strategies for 2016–2021 and 2017–2021, respectively.

To support these processes, the Reference Groups offer the following three key messages:

1. There is an ongoing, urgent need to increase access to HIV testing and counselling, as testing rates remain low in many settings. The Reference Groups support such efforts unequivocally and encourage the provision of multiple HIV testing settings and modalities, in particular those that integrate HIV testing with other services.

2. Simply increasing the number of people tested, and/or the number of times people test, is not enough, for many reasons. Much greater efforts need to be devoted to removing barriers to testing or marginalized and criminalized populations, and to link those tested with prevention and treatment services and successfully keep them in treatment.

3. Public health objectives and human rights principles are not mutually exclusive. HIV testing that violates human rights is not the solution. A “fast-track” response to HIV depends on the articulation of testing and counselling models that drastically increase use of HIV testing, prevention, treatment, and support services, and does so in ways that foster human rights protection, reduce stigma and discrimination, and encourage the sustained and supported engagement of those directly affected by HIV.

The section on HIV criminalisation is quoted below.

The criminalization of HIV non-disclosure, exposure, and transmission is not a new phenomenon, but the vigour with which governments have pursued criminal responses to alleged HIV exposures — at the same time as our understanding of HIV prevention and treatment has greatly advanced, and despite evidence that criminalization is not an effective public health response — causes considerable concern to HIV and human right advocates. In the last decade, many countries have enacted HIV-specifc laws that allow for overly broad criminalization of HIV non-disclosure, exposure, and transmission. This impetus seems to be “driven by the wish to respond to concerns about the ongoing rapid spread of HIV in many countries, coupled by what is perceived to be a failure of existing HIV prevention efforts.” In some instances, particularly in Africa, these laws have come about as a response to women being infected with HIV through sexual violence, or by partners who had not disclosed their HIV status.

Emerging evidence confrms the multiple implications of the criminalization of HIV non-disclosure, exposure, and transmission for HIV testing and counselling. For example, HIV criminalization can have the effect of deterring some people from getting tested and finding out their HIV status. The possibility of prosecution, alongside the intense stigma fuelled by criminalization, is good reason for some to withhold information from service providers or to avoid prevention services, HIV testing, and/or treatment. Indeed, in jurisdictions with HIV-specific criminal laws, HIV testing counsellors are often obliged to caution people that getting an HIV test will expose them to criminal liability if they find out they are HIV-positive and continue having sex. They may also be forced to provide evidence of a person’s HIV status in a criminal trial. This creates distrust in relationships between people living with HIV and their health care providers, interfering with the delivery of quality health care and frustrating efforts to encourage people to come forward for testing.

The full statement, with references, can be downloaded here and is embedded below.

HIV TESTING AND COUNSELLING: New technologies, increased urgency, same human rights

US : Mississippi lawmakers pass law mandating HIV testing for anyone arrested for sexual assault

Updated by Paul Boger at Law enforcement officers will soon be able to do mandatory AIDS testing on those arrested for sexual assault. House Bill 2-57 was passed by lawmakers with nearly unanimous support in Mississippi’s House and Senate. The measure gives law enforcement the right to test individuals arrested for sexually assaulting a minor for diseases such as HIV and AIDS.

Under current Mississippi law, testing can only be conducted after a person has been convicted of a crime. Proponents say the new law will help young victims know if they’ve been exposed to a terrible disease. Republican Representative Mark Formby of Picayune helped draft the law. He says the test would become part of the intake process.

“If you’re arrested and you get photographed; it is not any additional evasive behavior,” says Formby. “We are documenting that you were arrested, which means that there was some degree of evidence that implicated you in a crime.”

Despite the measure’s popularity among lawmakers, some groups like the ACLU of Mississippi believe the law is a slippery slope.

Keia Johnson is the organization’s legislative strategist. She says the law amounts to an unreasonable search and seizure.

“We believe that when you mandate that DNA is to be collected for HIV testing purposes or anything like that upon arrest, that you are violating the due process of law,” Johnson says.

According to Representative Formby, both the suspect and the victim will be given the results of the test 24 hours after it was taken. At that time, all other DNA samples would be destroyed.

Malawi: High Court rules that mandatory HIV testing is unconstitutional

By Anneke Meerkotter, Southern Africa Litigation Centre (SALC) and Ian Southey-Swartz, Open Society Initiative for Southern Africa (OSISA)

In 2009, a group of women, presumed to be sex workers, was as part of a police sweeping exercise in Mwanza, Malawi. The women were taken to the Mwanza District Hospital where they were tested for HIV without their knowledge or consent, and in contravention of Malawi’s HIV policy. The women were then taken to the Mwanza Magistrates’ Court where some were charged with and convicted of “spreading venereal disease (HIV)”.

In 2011, eleven of these women filed an application in the Blantyre High Court challenging their subjection to mandatory HIV tests and the public disclosure of their HIV status in open court. The women argued that these actions by government officials violated their constitutional rights. Justice Dorothy nyaKaunda Kamanga handed down judgment on 20 May 2015.

Reading her judgment in court, Justice nyaKaunda Kamanga, said that forced HIV testing amounted to a violation of the applicants’ constitutional rights, including their right to privacy; their right to non-discrimination; their right to freedom from cruel, inhuman and degrading treatment; and their right to dignity. Justice Kamanga went a step further and requested a copy of the criminal court records in order to review the sentence the magistrate imposed on the applicants.

The case is illustrative of how the criminal justice system often impedes on accused persons’ rights to dignity, a fair trial and access to justice. In the present case, the matter was repeatedly delayed, including due to high caseloads and industrial action by judiciary personnel.

The judgment comes in the context of other important developments in Malawi. Civil society activists have increasingly voiced their concerns about the manner in which sex workers are treated by the police. Police often arbitrarily arrest women presumed to be sex workers during sweeping exercises and misguidedly and unlawfully charge them with offences such as being a rogue and vagabond or living off the earnings of prostitution, when there is no evidence of such offences having been committed. Such arrests inevitably involve a range of human rights violations.

The attitudes displayed by police towards alleged sex workers also extend to how some policy-makers view sex workers in Malawi. The HIV and AIDS (Prevention and Management) Bill of 2013, currently prohibits compulsory HIV testing, but allows forced HIV testing for specific groups of people, including commercial sex workers. In contrast, this case highlights the human rights violations caused by mandatory HIV testing and the importance of having legislation which prohibits this. This is an important message at a time when the Malawi government engages in final deliberations on the proposed Bill.

The case shows that it is possible for vulnerable groups to hold the government accountable when their rights have been violated. It is hoped that the judgment, once available, will be used as a resource by other marginalized groups to assert their rights and will contribute to improving constitutional jurisprudence in the region.

UNAIDS publishes updated, detailed guidance on HIV criminalisation

Today, the Joint United Nations Programme on HIV/AIDS (UNAIDS) publishes its long-awaited updated guidance to limit the overly broad use of criminal laws to regulate and punish people living with HIV who are accused of HIV non-disclosure, exposure and/or transmission. The guidance aims to ensure that any application of criminal law in the context of HIV achieves justice and does not jeopardise public health objectives.

In a note accompanying the release, UNAIDS’ Executive Director, Michel Sidibé, states:

As I highlighted in my opening remarks [at the High Level Policy Consultation on criminalization of HIV Non-disclosure, Exposure and Transmission co-hosted by UNAIDS and the Government of Norway on 14-15 February 2012] in Oslo, the overly broad criminalisation of HIV non-disclosure, exposure and transmission at best indicates a lack of understanding of the science of HIV, at worst comprises an expression of discrimination against people living with HIV.  Such overly-broad laws not only lead to miscarriages of justice, but also threaten our efforts to address HIV in an effective and rights-based manner.

Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations is the result of a two year project involving research, evidence-building and policy dialogue, comprising:

  • The development of background and technical papers on current laws and practices, as well as recent medical and scientific developments relevant to HIV criminalisation;
  • An Expert Meeting in Geneva, Switzerland (31 August to 2 September 2011) bringing together leading scientists, medical practitioners and legal experts to consider the latest scientific and medical facts about HIV to be taken into account in the context of criminalisation; to explore how to best address harm, risk, intent, proof, and sentencing; and to consider alternative responses to criminalisation, in light of scientific and medical advances; and
  • A High Level Policy Consultation in Oslo, Norway (14 -15 February 2012) that gathered policy-makers, experts in HIV science, medicine and human rights and members of civil society, including people living with HIV, from around the world to discuss options and recommendations for addressing overly broad HIV criminalisation.

The new guidance reiterates the positions previously stated in the 2008 Policy Brief issued by UNAIDS and the United Nations Development Programme  (UNDP) and the recommendations of the Global Commission on HIV and the Law, to limit the application of criminal law to cases of intentional transmission (i.e. where a person knows his or her HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit it) and that general – and not HIV-specific – laws should be used for these extremely rare occasions.

It also stresses that because overly broad HIV criminalisation raises serious human rights and public health concerns, rather than relying on laws, investigations, prosecutions and imprisonment, resources should focus on “expanding the use of proven and successful evidence-informed and rights-based public health approaches to HIV prevention, treatment and care, and limit any application of criminal law to truly blameworthy cases where it is needed to achieve justice. States should strengthen HIV programmes that enable people to know how to protect themselves from HIV and to avoid transmitting it, and they should help people access the services and commodities they need for HIV prevention, treatment, care and support.”

Mindful that this ideal cannot be achieved in the short-term, UNAIDS then provides detailed and specific “considerations and recommendations” to address how the criminal law is currently applied to HIV non-disclosure, exposure or transmission. “It offers these to help governments, policy-makers, law enforcement officials, and civil society—including people living with HIV—to achieve the goal of limiting and hopefully ending the overly broad application of criminal law to HIV. These considerations and recommendations are also provided to help ensure, to the best degree possible, that any application of criminal law in the context of HIV achieves justice and does not undermine public health.”

There are three main princples behind the guidance. The use of criminal law in relation to HIV should

  1. be guided by the best available scientific and medical evidence relating to HIV,
  2. uphold the principles of legal and judicial fairness (including key criminal law principles of legality, foreseeability, intent, causality, proportionality and proof), and
  3. protect the human rights of those involved in criminal law cases.

The guidance then provides detailed considerations and recommendations, with regard to

  • the assessment of the harm caused by HIV

In the absence of the actual transmission of HIV, the harm of HIV non-disclosure or exposure is not significant enough to warrant criminal prosecution. Non-disclosure of HIV- positive status and HIV exposure should therefore not be criminalised.

  • the assessment of the risk of HIV transmission

Where criminal liability is extended to cases that do not involve actual trans- mission of HIV, such liability should be limited to acts involving a “significant risk” of HIV transmission. The determination of whether the risk of HIV transmission from a particular act is significant should be informed by the best available scientific and medical evidence.

  • the assessment of the mental culpability of the person accused

Any application of criminal law to HIV non-disclosure, exposure or transmission should require proof, to the applicable criminal law standard, of intent to transmit HIV. Intent to transmit HIV cannot be presumed or solely derived from knowledge of positive HIV status and/ or non-disclosure of that status and/or from engaging in unprotected sex, having a baby without taking steps to prevent mother-to-child transmission of HIV, or by sharing drug injection equipment.

  • the determination of defences to prosecution or conviction

Disclosure of HIV-positive status and/ or informed consent by the sexual partner of the HIV-positive person should be recognized as defences to charges of HIV exposure or transmission. Because scientific and medical evidence demonstrates that the risk of HIV transmission can be significantly reduced by the use of condoms and other forms of safer sex—and because these behaviours are encouraged by public health messages and HIV prevention strategies that should not be undermined—condom use or the practice of other forms of safer sex (including non-penetrative sex and oral sex) should be recognized as defences to charges of HIV non- disclosure, exposure or transmission. Effective HIV treatment or low viral load should be recognized as defences to charges for HV non-disclosure, exposure or transmission.

  • the assessment of elements of proof

As with any crime, all elements of the offence of HIV non-disclosure, exposure or transmission should be proved to the required criminal law standard. HIV phylogenetic evidence alone is not sufficient to establish, to the required criminal law standard, that one person did infect another person with HIV.

  • the determination of penalties following conviction for HIV non-disclosure, exposure or transmission

Any penalties for HIV non-disclosure, exposure or transmission should be proportionate to the state of mind, the nature of the conduct, and the actual harm caused in the particular case, with mitigating and aggravating factors duly taken into account.

  • prosecutorial guidelines

Countries should develop and implement prosecutorial and police guidelines to clarify, limit and harmonise any application of criminal law to HIV. The development of such guidelines should ensure the effective participation of HIV experts, people living with HIV, and other key stakeholders. The content of these guidelines should reflect the scientific, medical and legal considerations highlighted in the present document.

The entire guidance is available below, and can be downloaded here.

Exposing the 'Office of Medical and Scientific Justice' by Seth Kalichman

I posted earlier that AIDS Denialist and LA Private Investigator Clark Baker is focusing his attention on the US Military justice system. Baker’s storefront business, the Office of Medical and Scientific Justice (OMSJ) is paid by US taxpayers to bring AIDS denialists to the court. How are AIDS Denialists used as experts in legal cases?

Austria: Man accused of criminal HIV transmission fights “unconstitutional” forced blood test

A man in Austria is taking a case to the Constitutional Court that challenges the forcible testing of blood for HIV (as well as for use in phylogenetic analysis) that was legalised on 1 January 2012 through an amendment of the Criminal Procedure Code by the Prevention of Terrorism Act 2011.  He is being supported by Rechtskomitee LAMBDA, whose president, Dr. Helmut Graupner, is also his defence counsel.

Full details of the case, and the problematic application of this law, from the Rechtskomitee LAMBDA press release issued today are included in full below (English version is slightly modified from the original release; German is the original.)

From 1 January 2012: Forced Hiv-Testing: Rechtskomitee LAMBDA supports case in the Constitutional Court

The Prevention of Terrorism Act 2011 also amended the Criminal Procedure Code. It makes forcible HIV-testing legal as of 1 January 2012, despite the fact that the Constitution prohibits taking blood by force. A case has already been brought to the Constitutional Court.

The Prevention of Terrorism Act 2011, passed by federal parliament in October 2011, legalizes taking blood by force in order to prove the misdemeanor of Endangering Human Beings by Transmittable Diseases (§ 178 Criminal Code). Up to now forcible blood taking (in the case of not intoxicated defendants) had been restricted to sexual felonies or other felonies incurring a maximum penalty of five years.

Since 1 January 2012 this changed, despite the fact that the Constitutional Court prohibits forcible blood withdrawals, as no one may be forced to supply his body as evidence against him. The first case challenging this new power of the criminal police has already been taken to the Constitutional Court.

The applicant, who has no criminal record, is HIV-positive and asks the Constitutional Court to strike down the amendment. The state prosecutor has started proceedings against him under  § 178 CC after another HIV-positive man had accused him of infecting him with HIV. Indeed the two men had sex with each other years ago, but in accordance with the safer sex rules propagated by the Ministry of Health and the AIDS Service organisations (oral sex without ejaculation into the mouth).

Blackmailed and reported to the police

The accuser, who has a massive criminal record of violent, drug and property offences, reported the defendant to the police years after the sexual contact and only after the man refused to fulfil his considerable financial demands. In addition the accuser admitted during his interrogation that he had unprotected sex with others, and he had searched for casual sex (“sexdates”) in the internet displaying in his profile the information “Safer Sex: Never”. Even more so the man, according to his own depositions, is addicted to heroin and thus had been exposed also to other ways of transmission than the sexual one.

The case against the accuser (for aggravated blackmail) has been dropped immediately after the interrogation of both men due to “conflicting depositions”. Not so the case against the defendant for endangering by transmittable diseases (which offence is fulfilled just by engaging in unsafe sex without the necessity of causing infection). Also in regard to this offence there were “conflicting depositions” but the prosecutor wanted a blood test (for phylogenetic analysis).

Potential for conviction of innocents

A phylogenetic analysis however cannot prove an infection. And phylogenetic analyses bear the risk of false results and misinterpretation at the expense of a defendant. There are no standards (guidelines) so far for such analyses in forensic context and its results unfortunately again and again are misunderstood and misinterpreted by the courts. UNAIDS and the EU-Fundamental Rights Agency for years have been highlighting this.

So the man did not agree to blood withdrawal from him as he fears, because he is innocent, to be wrongfully convicted on the basis of such a blood test. Since 1 January he now is facing the danger of forced blood taking at any time. Therefore he has addressed the Constitutional Court.
“It is incredible that the governing coalition passed this unconstitutional law,” says president of Rechtskomitee LAMBDA (RKL) and defence counsel of the man, Dr. Helmut Graupner, “As too often we again have to hope for the Constitutional Court”.

Seit 1.1.2012: Zwangs-Hiv-Tests: Rechtskomitee LAMBDA (RKL) unterstützt Antrag an den Verfassungsgerichtshof

Das Terrorismuspräventionsgesetz bringt auch eine Novelle der Strafprozessordnung. Seit 1.1.2012 sind gewaltsame Blutabnahmen bei Verdacht einer Ansteckung mit Hiv zulässig, obwohl die Verfassung zwangsweise Blutabnahmen verbietet. Eine Beschwerde liegt bereits beim Verfassungsgerichtshof.

Mit dem im Oktober 2011 verabschiedeten Terrorismuspräventionsgesetz wurden Zwangsblutabnahmen bei Verdacht des Vergehens der Gefährdung von Menschen durch übertragbare Krankheiten (§ 178 Strafgesetzbuch) erlaubt. Bisher waren zwangsweise Blutabnahmen (bei nicht berauschten TäterInnen) nur bei Verdacht auf ein Sexualverbrechen oder auf ein (anderes) Verbrechen zulässig, das mit mehr als 5 Jahren Freiheitsstrafe bedroht ist.

Das ist seit 1. Jänner anders, obwohl der Verfassungsgerichtshof zwangsweise Blutabnahmen verbietet, weil niemand gezwungen werden darf, seinen Körper als Beweismittel gegen sich selbst zur Verfügung zu stellen. Die erste Beschwerde gegen die neue Befugnis der Kriminalpolizei liegt bereits beim Verfassungsgerichthof.

Der unbescholtene Antragsteller ist Hiv-positiv und beantragt die Aufhebung der Gesetzesnovelle. Die Staatsanwaltschaft (StA) hat gegen ihn ein Ermittlungsverfahren wegen des Verdachts gem. § 178 StGB eingeleitet, weil ihn ein anderer Hiv-positiver Mann beschuldigt, ihn mit Hiv angesteckt zu haben. Tatsächlich hatte der Mann mit diesem anderen Mann vor Jahren einvernehmlichen sexuellen Kontakt, jedoch entsprechend den vom Gesundheitsministerium und den Aids-Hilfen propagierten Safer Sex Regeln, also mit Sexualpraktiken, bei denen eine Ansteckung nicht möglich ist (Oralverkehr ohne Ejakulation in den Mund).

Erpresst und angezeigt

Der mehrfach wegen Gewalt-, Suchtgift- und Vermögensdelikten vorbestrafte Anschuldiger hat die Anzeige, in der er ungeschützten passiven Analverkehr behauptete, erst Jahre nach dem sexuellen Kontakt erstattet und erst nachdem der Beschuldigte nicht bereit war, seine erheblichen finanziellen Forderungen zu erfüllen. Zudem hat er selbst in seiner Einvernahme angegeben, anderweitig ungeschützte sexuelle Kontakte gehabt zu haben und hatte er im Internet flüchtige sexuelle Kontakte („Sexdates“) gesucht mit einem Profil, auf dem angegeben war: „Safer Sex: Niemals“.  Darüber hinaus ist dieser Mann nach seinen eigenen Angaben heroinsüchtig, und war daher, außer dem sexuellen noch anderen Übertragungswegen für eine Hiv-Infektion ausgesetzt.

Das gegen den Anschuldiger (wegen des Verdachts der schweren Erpressung) eingeleitete Strafverfahren wurde „wegen der widerstreitenden Aussagen“ sogleich nach Einvernahme der beiden Männer eingestellt. Nicht jedoch das Verfahren gegen den Beschuldigten wegen des Verdachts der Gefährdung durch übertragbare Krankheiten (wofür bereits unsafer Sex ausreicht, ohne dass es zu einer Ansteckung gekommen ist). Auch hier bestanden widerstreitende Aussagen, jedoch begehrte der Staatsanwalt eine Blutuntersuchung (phylogenetische Untersuchung).

Gefahr der Verurteilung Unschuldiger

Eine phylogenetische Untersuchung kann aber eine Ansteckung nicht beweisen. Und phylogenetische Untersuchungen bergen das Risiko falscher Ergebnisse und von Fehlinterpretationen zu Lasten des Beschuldigten Es gibt (noch) keine Standards (Richtlinien) für die Durchführung dieser Analysen zu gerichtlichen Zwecken und ihre Ergebnisse werden von Gerichten leider immer wieder missverstanden und fehlinterpretiert. Darauf weisen UNAIDS und die EU-Grundrechteagentur seit Jahren hin.

Der Mann hat daher einer Blutabnahme nicht zugestimmt, weil er befürchten muss, auf Grund der Testergebnisse unschuldig verurteilt zu werden. Seit 1. Jänner muss er nun jederzeit die gewaltsame Abnahme einer Blutprobe fürchten und hat sich daher an den Verfassungsgerichtshof gewandt.

„Es ist unglaublich, dass die Regierungsparteien, gegen die Opposition, diese verfassungswidrige Regelung beschlossen haben“, sagt der Präsident des RKL und Rechtsanwalt des Antragstellers Dr. Helmut Graupner, „Es bleibt, wie so oft, die Hoffnung auf den Verfassungsgerichtshof“.