UK: Scottish man accused of criminal HIV transmission; sensationalist reporting

I am incensed and outraged that journalist Charles Lavery (c.lavery@sundaymail.co.uk) has written, and the (Scottish) Sunday Mail has published, the article below.

It features an interview from a complainant in an ongoing criminal HIV transmission investigation which names the man he believes infected him with HIV. As far as I can tell, the man is only under investigation, and this article appears to be libelous (should it not say "allegedly infected"?) and obviously prejudicial.

It is also not clear how the quotes attributed to the accused were obtained (were the recordings legal?), and the language used in the article ("sex predator", "deadly fullblown AIDS") is inaccurate and, obviously, stigmatising.

I understand how distressed and angry 'Alan' must be to discover he is now HIV-positive, but going to the gutter press as well as the police is so incredibly counterproductive: doesn't he realise that he is only adding to the stigma of his own HIV infection?

I urge any readers who feel similarly incensed to email Mr Lavery and/or comment on the paper's website.

My lover didn't tell me he had HIV
Mar 30 2008
By Charles Lavery
Exclusive: Dad Says Sex Predator Gave Him Disease

A SEXUAL predator who infected a father-of-three with HIV is being investigated by police.

[Full name of man], 40, admits he did not tell his unsuspecting victim he had been diagnosed as HIV positive six years ago.

[Name of man] - who could face five years in jail for his deadly deceit - still trawls gay websites for "one-on-one sex" while police examine his sexual history.

They fear he could have slept with - and potentially infected - dozens of partners.

Police now face the difficult task of trying to track down his conquests, who will be offered HIV tests and counselling.

His victim Alan, whose identity we are protecting, tested negative for HIV two weeks before he met martial arts expert [Name of man].

Alan, 32, said [Name of man] assured him he was also clear of the disease - which can go on to develop into deadly fullblown AIDS.

But after being tipped off that [Name of man], of [town in Scotland], had the virus, Alan arranged another test and was told he too was HIV positive.

He said: "[Name of man] never had the decency to tell me he was a carrier. He has stolen 20 years of my life."

In a taped confession [Name of man] admits:

"I gave him HIV. I have had a dozen sexual partners since I was diagnosed six years ago and I have told each and every one of them. Why I didn't tell Alan I don't know.

"I always meant to and then we had sex. By that time it was too late."

The pair met on the Chatterbox UK website and struck up a friendship before arranging a date.

Alan says he asked about safe sex but [Name of man] told him he had been given the allclear so there was no need.

[Name of man] is still listed on various online gay exchange networks looking for sex. Alan told the Sunday Mail:

"[Name of man] told me he was clean because I asked him outright.

"He is a fit-looking guy who goes to the gym and has a good body for his age but that's all to mask his illness.

"I know I was clear before I met him as I take regular health checks because of my lifestyle."

Alan's life fell apart when he got an email from one of [Name of man]'s friends asking: "How's your health?"

He said: "I replied, 'What do you mean?' His reply made my heart stop.

"It said, 'How are your bloods?'

"I called [Name of man] and he said he couldn't bring himself to tell me because he couldn't bear to lose me.

"His family and friends all knew too but they told me they assumed I must be HIV positive too.

"I have been at their home eating Sunday dinner and listened to them telling [Name of man] what a nice couple we make."

Within 24 hours of the bombshell email Alan had been diagnosed as HIV positive. A counsellor broke the news over the phone.

He said: "I spent three weeks in my bed after that phone call. He never had the decency to tellme he was a carrier."

Last Sunday Alan walked into a police station in Glasgow and made a formal complaint.

But [Name of man]'s profile was still on networking site Gaydar, advertising for one-night stands and claiming he would "discuss" the use of condoms with any sex date.

He describes himself online as "single, fit, honest and looking".

Alan said: "How many more are there like me? He was always online and always off meeting new people. I can only assume they too are none the wiser.

"I want to stop this man doing this to people. It's too late for me but not for the people he is planning to meet.

"I want the world to know this guy is HIV positive and sleeping around. I hope he goes to jail for a long time. He has robbedme ofmy life - what price do you put on that?"

We tracked [Name of man] down last week to a flat he rents in Paisley.

He said: "I probably gave him it but until it's proved I don't want to say anything. He might have had other partners."

Strathclyde Police said: "A 32-year-old man has made a complaint. Inquiries are continuing."

'I hope he goes to jail for a long time ..he has robbed me of my life' VICTIM ALAN

MAILFILE

HIV (Human Immunodeficiency Virus) attacks the body's ability to defend against disease. An all-timehigh 73,000 people in the UK are infected. AIDS (Acquired Immune Deficiency Syndrome) is the latter stages of HIV when the sufferer has a life-threatening illness, such as pneumonia. For advice, call the Terrence Higgins Trust on 0845 1221 200 or the National AIDS Helpline on 0800 567123.

SUNDAY EMAIL

c.lavery@sundaymail.co.uk

Australia: Jilted wife accuses husband of criminal HIV transmission twelve years after alleged event

A 39 year-old HIV-positive Melbourne man is being accused of "intentionally causing another person to become infected with a very serious disease, reckless conduct endangering life and reckless conduct endangering serious injury" more than twelve years after the alleged event.

The 'victim' is the man's estranged wife, who married the man five years after her diagnosis, and who only complained to the police last year after he left her for another woman.

It seems to me that criminal HIV exposure and transmission laws are increasingly being used as ways for the jilted and broken-hearted to get revenge. Is this what the law-makers intended?

It all shows that there is no statute of limitations for criminal HIV transmission, and suggests that HIV-positive people could face charges whenever a relationship breaks down, no matter how long ago the alleged transmission event took place.

Of course, proving that one person infected another becomes increasingly harder the further away you are from a transmission event, unless stored blood samples from around that time are available.

The article, from the Herald Sun, is below.


Man accused of deliberately infecting wife
By Kate Uebergang
March 29, 2008 03:05am

AN HIV-positive man has been sent to trial accused of intentionally giving his wife the virus.

The man, 39, who cannot be identified, told police he did not inform his partner he had the virus when they began a sexual relationship in January 1996, according to documents tendered to Melbourne Magistrates' Court yesterday.

The woman, also 39, said she became mysteriously ill just two months after they first had sex and lost about 10kg in a week before she was diagnosed with HIV.

The woman is now unable to work, drive or write, nor can she have children and is often nauseous and lethargic with severe allergic reactions to her treatments.

The court was told that after the woman was diagnosed, the man told her he had also been tested and had HIV.

The next year, the man revealed to her he was a haemophiliac and had contracted the virus when he was 14 from a blood transfusion at the Alfred hospital.

"(His) explanation was that he was concerned that I would not want a relationship with him if I knew the truth," the woman said in a statement tendered to the court.

"Looking back, he was probably right."

The court was told the couple married in 2001 - more than five years after the woman's diagnosis.

The woman said her husband became very controlling and the only people that were told about their HIV status were told by him and at his choosing.

"He became suspicious and paranoid that I would tell my family or friends about my illness," she said.

The man left his wife last year and began a relationship with another woman.

In a police interview tendered to the court, the man allegedly said: "I wasn't careful in what we did. I was probably more scared if anything, and probably didn't handle it the right way obviously."

He said they first had sex together one night after "plenty of drinks", and while he was aware of the consequences of having unprotected sex with her, he was "very lapse".

"Didn't think it'd happen to me and her," he said.

The woman now takes anti-retroviral medication and her medical condition requires regular visits to doctors and specialists, blood tests, X-rays and scans.

Yesterday the man reserved his plea to each of three charges: intentionally causing another person to become infected with a very serious disease, reckless conduct endangering life and reckless conduct endangering serious injury.

Magistrate Peter Reardon ordered the man to appear at the County Court for a directions hearing on April 22.

US: Illinois man imprisoned for ten years for HIV exposure (again)

A 24 year-old man who was charged with HIV exposure after serving four years for the same 'crime', has been sentenced to ten years in prison, reports the Chicago Sun-Times.

Man imprisoned again for not telling sex partners he has HIV
March 28, 2008
EDWARDSVILLE, Ill.

A paroled sex offender with a history of having sex with women who don't know he is HIV positive is off to prison again for the same offense.

Twenty-four-year-old Casey Yonts was sentenced to a decade behind bars after he pleaded guilty to two felony Madison County counts of criminal transmission of HIV, the virus that causes AIDS.

The charges stem from incidents involving Yonts' girlfriend and her sister.

Authorities have said the sisters, ages 19 and 26, were unaware Yonts was infected, and they have tested negative for the virus.

Investigators say Yonts had been living with his girlfriend and her two children since December.

Yonts served prison time on charges that he had sex in 2004 with a 15-year-old girl when he was HIV infected. Yonts was 21 at the time of that offense. AP

Canada: Ryan Handy gets eight months in prison for HIV exposure

Ryan Handy, whose HIV exposure conviction galvanised Toronto's gay community, has been sentenced to eight months in jail; given a two- year probation order with conditions that include continuing his treatment for mental illness, no illegal drugs, disclosing his HIV status to all sex partners and no unprotected sex; ordered to provide a DNA sample; prohibited from having weapons for 10 years; and had his name added to a sex offender registry for life.

All this despite the judge, Justice William Jenkins, conceding that the case was "unusual. . . because you suffered from a mental illness that affected your judgment and because you have expressed genuine remorse."

The sentence, however, is less than the three years' demanded by the Crown, and which the Judge called "crushing".

However Justice Williams appears to have decided that even a young man with mental health problems deserves prison because he "selfishly and recklessly had unprotected sex with (his 'victim', who remains HIV-negative) and exposed him to a deadly virus... [It is ] essential that others who are HIV positive understand that if they fail to disclose their condition and engage in unprotected sex with men or women who are not infected, they will go to jail."

I think Canadians have got the message loud and clear; shame that HIV exposure laws – which mandate disclosure before unprotected sex – make absolutely no sense from a public health perspective and do more harm than good.

Full story, from the London Free Press, below.

HIV positive man spread virus, jailed 8 months
By JANE SIMS, SUN MEDIA

An HIV positive man with a mental illness was sent to jail yesterday for knowingly spreading the virus that causes AIDS.

"I'll be okay," Ryan Handy, 26, told his psychiatrist from the prisoner's box before he was led away by court security officers.

Handy was convicted in November. He had testified he had a major mental illness and believed he had sweated out the virus. He also said that at one point he believed he was a messiah.

In February 2005, Handy met a 55-year-old gay man, whose identity is protected by court order, in a gay Internet chat room. They had two unprotected sexual encounters, even though Handy was obligated to tell the man his HIV status. Hours after the second encounter, Handy said, he called the man and told him he had the virus. He testified he believed he was HIV negative, but had a moment of clarity while walking home from the man's house and understood he had the virus. Three years later, the man remains HIV negative.

Justice William Jenkins called the case "unusual. . . because you suffered from a mental illness that affected your judgment and because you have expressed genuine remorse." Handy has schizoid-affective disorder with symptoms that include "mood instability, delusions of grandeur, promiscuity, impaired reality testing, promiscuity and substance abuse."

Jenkins noted Handy has had difficulty complying with his medical advice and needs close monitoring. "If you take your medication (his doctors) believe you will not be a danger to yourself or to others," Jenkins said.

Jenkins said he believed that because the complainant was much older, Handy was afraid to tell him he was HIV positive. And his use of marijuana the evening of the offence "aggravated your mental condition."

"You selfishly and recklessly had unprotected sex with (the man) and exposed him to a deadly virus," the judge said. Jenkins said it was "essential that others who are HIV positive understand that if they fail to disclose their condition and engage in unprotected sex with men or women who are not infected, they will go to jail."

He said he couldn't agree to a conditional sentence the defence had requested, but called the three-year jail term requested by the Crown as "crushing." He decided on the shorter eight-month jail sentence.

Handy was also given a two- year probation order with conditions that include continuing his treatment for mental illness, no illegal drugs, disclosing his HIV status to all sex partners and no unprotected sex.

He was also ordered to provide a DNA sample, prohibited from having weapons for 10 years and had his name added to a sex offender registry for life.

US: Man gets nine months for HIV exposure in Virginia

A North Carolina man has received a nine month jail term after pleading guilty to HIV exposure in neighbouring Virginia.

Interestingly, the female complainant remained in a relationship with the man after she discovered his HIV status, having protected sex with him for another four months, before the relationship went sour. It was only then she went to the police.

This is surely a rather blatant example of how HIV exposure laws are being used by disgruntled exes to get back at their former love when things go sour.

In late July or early August, the victim said she learned from a friend of Johnson's that he was HIV-positive. When she confronted him, he admitted it.

The woman said that when she asked Johnson why he didn't tell her, Johnson replied, "I really love you and I didn't want to lose you."

The woman said she continued having sex with Johnson after learning of his condition, but it was protected sex.

The relationship ended in November, when Johnson was arrested following a domestic altercation with the victim. The woman did not contract the virus.

The full story, from The Free-Lance Star, is below.

Keeping HIV secret lands man in jail

March 27, 2008 12:15 am

BY KEITH EPPS

A North Carolina man was ordered to serve nine months in jail for not telling his girlfriend he was HIV-positive before having unprotected sex with her.

Robert Earl Johnson, 42, of Washington, N.C., pleaded guilty to two counts of infected sexual battery and assault and battery yesterday in Stafford Circuit Court.

The two charges of infected sexual battery were reduced from felonies to misdemeanors.

Johnson should be released soon. He has been in jail since November, and inmates convicted of misdemeanors generally have to serve only about half of their sentences.

The victim, a Stafford woman, testified at a preliminary hearing that she met Johnson in September 2006 while visiting in North Carolina.

The two began a relationship that soon became intimate.

The woman said she had unprotected sex a number of times in Stafford between April and August of last year when Johnson would visit her for weeks at a time.

In late July or early August, the victim said she learned from a friend of Johnson's that he was HIV-positive. When she confronted him, he admitted it.

The woman said that when she asked Johnson why he didn't tell her, Johnson replied, "I really love you and I didn't want to lose you."

The woman said she continued having sex with Johnson after learning of his condition, but it was protected sex.

The relationship ended in November, when Johnson was arrested following a domestic altercation with the victim. The woman did not contract the virus.

Prosecutor Eric Olsen said he agreed to reduce the charges to misdemeanors because otherwise he would have had to prove that Johnson intended to infect the woman.

Attorney Vanessa Jordan represented Johnson.

Uganda: Responses to Museveni's approach to criminalising HIV transmission

Following President Museveni's call for the death penalty as the appropriate punishment for criminal HIV transmission last week, two articles have appeared in Ugandan newspapers criticising his approach.

An editorial in Kampala's newspaper, The Monitor, by Augustin Ruzindana, the Forum for Democratic Change (FDC) party secretary for research and policy, is suitably scathing (first article below); an (anonymous) academic lawyer at Makerere University has written a more balanced article for Uganda's New Vision, (second article below).

Museveni's HIV Remarks May Be Disruptive
The Monitor (Kampala)
OPINION
21 March 2008
Posted to the web 21 March 2008

By Augustin Ruzindana
Kampala

This week, HIV/Aids was not my topic. But the insensitivity of President Museveni's statement calling for a death sentence for people who spread the virus, cannot go unchallenged. He has implicitly called for the stigmatisation, discrimination and shunning of persons infected with HIV/Aids.

The proviso of "knowingly" is of no relevance. This is a virus which is spread in so many ways. I am sure he has relatives, subordinates and thousands of citizens infected with the virus and many of them have succumbed to death.

As a policy statement at a recognition ceremony, this is terrible but not unexpected of him. Museveni has done the same with regard to some political opponents whom he has called traitors, thus by implication calling for a death sentence against them since treason calls for a mandatory death sentence.

Terminal solutions are habitual to him. Society should instead be urged to be understanding and find ways to protect the people who have been unfortunate to get the virus. Meanwhile those helping to manage the problem should now go out to educate the public to deal with the likely adverse effects of Museveni's pronouncement. Some people may now be discouraged from taking tests or those who know their status may be afraid of disclosing it since they may be shunned.

I hope no Bill will be rushed to Parliament to put into effect the import of the unfortunate statement. In the last article, I dealt with the context for the review of the representation of the special interest groups whose mode of representation predates the coming into force of the 1995 Constitution and the recently introduced multiparty dispensation. Special interest groups were part of the National Resistance Council (NRC) and the Local Councils (LCs).

They were then incorporated into the 1995 Constitution under which the same Movement political system continued to operate. They have been inappropriately incorporated into the multiparty system without modification.

The elimination of the two term presidential limits had the unintended effect of leading to the adoption of a multiparty system. This explains the contradictions in the practical operation of the new political system in place.

On the one hand, there is an attempt to maintain political monopoly on power (and the rampant corruption that goes with it) in a manner typical to one-party systems while on the other hand, there is implementation of some level of economic and public sector reforms. These contradictions need to be eliminated for a multiparty to be properly established and operate fairly and smoothly.

For a system to be considered democratic, it must combine three essential conditions: Meaningful competition for political power among individuals and organisations; inclusive participation in the selection of leaders and policies through free and fair elections; a level of civil and political liberties sufficient to ensure the integrity of political competition and participation.

Even though fairly adequate legal and institutional frameworks are in place, there is no meaningful competition for political power, there are no free and fair elections and the level of civil and political liberties is insufficient to ensure the integrity of the processes that take place. This was highlighted by the categorical judgements of the Supreme Court which declared that the 2001 and 2006 presidential elections were a fraud.

In the face of this crisis of legitimacy, the regime has failed to inspire a sense of shared identity among all the diverse peoples of the country by ensuring the participation of all groups in the affairs of the state as well as equity in the sharing of its resources. This is the impetus for the demands of self-determination, otherwise known as "federo" and the creation of so many minute identity-based districts.

Ethnic and cultural identities have been mobilised for political purposes but then the fact that some ethnic groups feel excluded, disempowered and vulnerable has galvanised a counter mobilisation for justice and equity.

Government is responding with intimidation and violence, but this course of action just exacerbates the problems of lack of legitimacy.

As the options for government to manoeuvre get fewer and fewer, it becomes increasingly difficult to continue pretending to be democratic with increasing harassment of the political opposition. Thus the crisis of legitimacy can only escalate, even as Gadaffi, sensing the problem facing his protégé, tries to shore up his declining fortunes.

The writer is the FDC party secretary for research and policy

Punishing those who spread HIV is tricky
Publication date: Sunday, 23rd March, 2008

THERE is a debate on the appropriateness of using criminal sanctions to prosecute HIV-positive people who deliberately or negligently infect others with the virus.

Proponents argue that such a policy would deter such conduct while the anti-criminalisation lobby argue that:

Where behaviour is spontaneous and driven by human passion, as is sexual behaviour, it is unlikely that punishment will have a meaningful effect on people’s behaviour.

History indicates that punitive policies are counterproductive in the promotion of public health issues.

Criminal prosecutions will deter those most at risk from getting tested.

Opponents base their stand on the human rights implications of criminalisation for people infected with HIV/AIDS. This raises a number of questions:

Should we punish individuals who, knowing that they are HIV+, engage in behaviour that can transmit HIV without using precautions and without informing their partners about their HIV status?

Is it possible to use existing provisions of the Penal Code to punish ‘offenders’, for example, provisions on causing grievous harm, attempted murder, or negligent act causing death? Or would there be a need to create a specific provision criminalising the relevant conduct?

The UN HIV/AIDS and Human Rights Guidelines provide that criminal legislation should not include specific offences against the deliberate and intentional transmission of HIV, but rather should apply general criminal offences to these exceptional cases. The guidelines identify four elements that need to be established to justify criminal sanctions: Foreseeability, intent, causality and consent. What does this mean?

Foreseeability: The prosecution must prove that at the time of sexual intercourse, the accused knew or had reason to believe that he/she was HIV-positive. The accused must also be aware that it is harmful and capable of being transmitted through sexual intercourse.

Intent: What kind of mens rea will be adequate? Must it be intention, recklessness or even negligence? It is imperative that laws relating to criminal transmission are used judiciously.

They should criminalise the wilful transmission of HIV and not the HIV-positive status of a person. The relevant state of mind must be clearly established so as not to punish the accused simply because of the act of transmission.

Causality: If the law is to punish only instances in which transmission occurs, then for the offence of criminal transmission, the prosecution must establish that the complainant was infected by the accused. The prosecution must prove that the complainant was HIV-negative at the time she/he engaged in sexual activity with the accused. It must be proved that the complainant was infected by the accused and not by anybody else.

However, the law may punish a person who willfully engages in conduct which exposes another to the risk of infection even where the complainant escapes infection. This can be a specific offence or such behaviour can be punished according to the principles of attempts to commit a crime.

The law would thus focus on criminal offences that prohibit behaviour which either results in transmission of disease or puts people at risk of contracting disease.

Consent: Would informed consent be a defence to a criminal charge? If A reveals his/her HIV status to B and B nevertheless consents to unprotected sexual activity with A, this would perhaps offer a defence to A in the event of B being infected by A. So what constitutes informed consent is not that B willingly had sex with A, but that B knew that A was HIV-positive and willingly agreed to have unprotected sex with him/her.

The Supreme Court of Canada ruled, in a case against a man who had unprotected sex with women without disclosing his HIV status to them, that without disclosure of HIV status, there cannot be true consent. The consent cannot simply be to have sexual intercourse. Rather, it must be consent to have it with a partner who is HIV-positive.

A further issue also needs to be considered: If an accused does not reveal his/her HIV status, but takes precautions such as the use of a condom to protect his/her partner, but nevertheless transmission occurs, what would his/her criminal responsibility be?

The writer is Associate Professor of Law, Makerere University

US; South Carolina man charged with HIV exposure

A South Carolina man has been charged with exposing his girlfriend to HIV without disclosing his status. The woman is now HIV-positive, but the story – surprisingly well-written and balanced for a local newspaper – does not suggest that he will be charged with criminal HIV transmission.

UPDATE February 3rd 2009. The man received a four year sentence after pleading guilty, according to brief AP report on wnct.com.

A South Carolina man has been sentenced to more than four years in prison for infecting his girlfriend with HIV.... Martinez will serve his sentence in Florida where he is already in prison for a similar crime.

The story, from the South Carolina newspaper, The State, is below:

Man charged with exposing girlfriend to HIV

Posted on Sat, Mar. 22, 2008
By RACHEL E. LEONARD

SPARTANBURG — A Spartanburg man has been arrested on a charge he knowingly exposed a girlfriend to HIV, causing her to become infected, authorities say.

Gregory Sean Martinez, 39, was arrested Thursday afternoon at his home. Under state law, it’s illegal for someone who knows he or she is HIV positive to engage in sexual intercourse without informing the other person, said Maj. Dan Johnson with the Spartanburg County Sheriff’s Office.

“When you’re infected with HIV and pass it on to a partner in some form or fashion knowingly, you can see what a tremendous health issue that is,” he said.

According to the Sheriff’s Office, the woman discovered she was infected during a prenatal checkup after she became pregnant with twins in 2007. She told investigators she and Martinez first engaged in consensual sex in 2006 in Florida. They moved to Spartanburg, where they lived together until January, when she moved back to Florida.

According to the Sheriff’s Office, Martinez recently admitted to the woman he has been infected with HIV since 2002, but never informed her of his status or suggested practicing safer sex before that.

The crime is a felony that can carry up to 10 years in prison or a $5,000 fine upon conviction. In 2005, a Spartanburg County man pleaded guilty to knowingly exposing two people he met over the Internet to HIV and was sentenced to 18 months in prison and three years of probation. But such cases are rare, Johnson said.

“I’m not sure that I’ve ever seen one of those,” he said.

Spartanburg police Capt. Randy Hardy echoed his thoughts. “I can’t remember seeing that or having made a charge of that,” he said.

Tracey Jackson, executive director of the Spartanburg-based HIV prevention and advocacy group Piedmont Care, said sexual partners might not disclose their status — and most don’t report infection to law enforcement — because of the stigma that continues to shroud the virus, which causes AIDS.

“What you’re seeing here is fear of HIV and fear of stigma,” she said.

But no law, Jackson said, reduces the duty of all individuals to protect themselves, and all people who engage in sexual activity should discuss HIV with their partners. At the same time, people who are HIV positive shouldn’t be further stigmatized because of the actions of any one individual, she said.

There are also difficulties in enforcing the law, including proving someone exposed a partner during the suspected time period and knew he or she was HIV positive at the time.

UK: Long-awaited guidelines for prosecuting criminal HIV transmission published

It has taken a year longer than anticipated, but the Crown Prosecution Service for England & Wales has finally published their policy on prosecuting criminal HIV transmission.

Thankfully, the document bears almost no relation to the draft version originally published in September 2006, following consultation with HIV experts and advocates.

Naturally, then, a (right wing) think-tank quoted in the (right wing) Daily Mail believes the CPS is being too lenient.

Dr David Green, of the Civitas think-tank, warned that the new rules would encourage risky behaviour among those with HIV.

"Someone who has sex in those circumstances is subjecting the other person to a potentially deadly illness and to suffering over a long period of time," he added.

"These rules are too lenient, and they will lead people to think they will not be prosecuted."

On the other hand, my story for aidsmap.com, includes criticism from academic and practicing lawyers who think the guidance is wishy-washy (HIV is never mentioned by name), vague (condoms are never mentioned by name) and fails to elucidate any further on the real question we all really, really want to know: under what circumstances is someone likely to be prosecuted for reckless HIV transmission?

The Daily Mail story, and my aidsmap story, are below (for balance).

Interestingly, the Daily Mail changed its story (the original is now gone forever, sadly) within hours of its publications from being quite surprisingly balanced, to one that seems to wish the CPS guidelines had changed the law and made all unprotected sex by HIV-positive people a criminal act. I should also warn that if you click on the link to the Daily Mail website, you will see one of the most offensive (and laughably reactionary) comments I've ever read.

HIV carriers could escape jail for passing on infections to others
By STEVE DOUGHTY
Last updated at 10:47am on 15th March 2008

Anyone deliberately infecting a sexual partner with HIV through a one-off encounter should not be charged with a crime, prosecutors ruled yesterday.

A single sexual incident will not count as evidence that they have deliberately tried to infect their partner with the virus, the Crown Prosecution Service said.

Cases of intentional or reckless transmission of sexual infection will only be brought against those who have infected a series of partners, or have infected one partner during a period of regular risky sex.

The rules were set out to clarify the law on reckless infection and to guide prosecutors on how to deal with a crime that can lead to a life sentence for those convicted.

They also said that those accused of reckless HIV infection are themselves "victims", because they suffer from a devastating condition.

Eleven defendants have been taken to court in England for transmission of the Aids virus.

Ten of the cases ended in a conviction. Defendants are charged with causing grievous bodily harm under the 1861 Offences Against the Person Act.

The first person to be jailed for infecting partners was given eight years in 2003 for infecting two women.

The sentence on Mohammed Dica, a married father-of-three, was cut to four and a half years after a re-trial found that he had deliberately infected only one woman.

The guidance, set out in a CPS policy document, said it would be necessary to prove a "sustained course of conduct" in order to find a defendant guilty - in other words a single sexual encounter does not amount to a crime.

"It will be highly unlikely that the prosecution will be able to demonstrate the required degree of recklessness in factual circumstances other than a sustained course of conduct during which the defendant ignores current scientific advice regarding the need for and the use of safeguards, thereby increasing the risk of infection to an unacceptable level," it said.

The document also said: "We appreciate too that those who are defendants in these cases may be seen as victims themselves, as they also have the infection that they are alleged to have transmitted to another person."

The statement set out a series of other reasons for prosecutors to be cautious before bringing charges.

Those newly told that they have an infection could be in a state of shock or might not have fully understood the diagnosis.

Prosecutors were told that someone who spread a sexual infection could also have a defence to a charge if the victim knew of their infected status.

The Director of Public Prosecutions, Sir Ken Macdonald, said: "Although these types of cases are rare, we are publishing this statement because we recognise the importance of consistent decision-making. We hope that it provides clarity."

Dr David Green, of the Civitas think-tank, warned that the new rules would encourage risky behaviour among those with HIV.

"Someone who has sex in those circumstances is subjecting the other person to a potentially deadly illness and to suffering over a long period of time," he added.

"These rules are too lenient, and they will lead people to think they will not be prosecuted."

Guidelines on prosecuting criminal HIV transmission for England & Wales finally published
Edwin J. Bernard, Wednesday, March 19, 2008

Last Friday, the Crown Prosecution Service (CPS) for England and Wales published its long-awaited policy statement and legal guidance for prosecutors for cases involving the intentional or reckless sexual transmission of serious infection.

Although the policy statement (which can be read here) and legal guidance (which can be read here) have generally been welcomed by the two major HIV policy organisations, because they clarify some of the uncertainties that have surrounded prosecutions for reckless HIV transmission, some legal experts say the documents are vague – for example, neither HIV nor condoms are specifically mentioned – and leave important questions unanswered.

The CPS issued the first draft of its policy statement in September 2006. Following widespread criticism of both the policy and CPS’ lack of understanding regarding issues of harm, transmission and the relationship between scientific evidence and causation, the policy went back to the drawing board, missing its original February 2007 deadline.

“We have consulted widely on the development of this policy statement and have benefited substantially from listening to the views and concerns of others,” the latest CPS policy statement notes. “We have greatly appreciated their input; however, the content of this policy statement is the responsibility of the CPS alone.”

“We are publishing this statement because we recognise the importance of, and the need for, consistent decision-making,” it continues. “We also recognise the potential tension between public health and criminal justice considerations. However, the criminal law exists in part to protect those who are the victims of unlawful conduct by others, including through the unlawful transmission of sexual infection.”

Of note, the guidance does not specifically mention HIV, although all thirteen prosecutions that have taken place in England & Wales since 2003 have been for reckless HIV transmission.

What is clarified?
Two national HIV policy organisations, Terrence Higgins Trust (THT) and the National AIDS Trust (NAT) have already published documents providing initial, brief explanations of how the CPS policy may apply to reckless and intentional HIV transmission. (The THT document can be downloaded here, and the NAT document can be downloaded here.)

In short, the policy clarifies that:

• Prosecutions are likely to talk place within relationships, and not as a result of one-off sexual encounters. “It will be highly unlikely that the prosecution will be able to demonstrate the required degree of recklessness in factual circumstances other than a sustained course of conduct during which the defendant ignores current scientific advice regarding the need for and the use of safeguards,” it says in the legal guidance for prosecutors.

• Scientific evidence must be used to show that the defendant infected the complainant, but that this evidence alone cannot conclusively prove the responsibility of the defendant for the complainant’s infection. “The prosecutor will need to be satisfied that the complainant did not receive the infection from a third party or that the complainant did not infect the defendant,” it says in the legal guidance for prosecutors. “This means that the prosecutor will need to know about any possibility which is compatible with the scientific evidence that the complainant was infected by a third party. This means enquiries will have to be made about the relevant sexual behaviour and relevant sexual history of the complainant.

• The defendant has to have known they were infected when transmission took place to be convicted, although there are some other, very limited circumstances (termed ‘wilful blindness’ e.g. where someone has refused to test despite explicit clinical advice to do so because of symptoms) that could result in prosecution and conviction.

• In order to be convicted, the CPS must prove that that the defendant understood that they were infectious to other people as well as understood how the particular infection is transmitted.

• Informed consent of the complainant to the risk of HIV infection is a defence against a charge of reckless HIV transmission. Disclosure is one way of informing the complainant, but the CPS will allow for other possible ways in which the complainant might have been ‘informed’ of the defendant’s HIV status – whether from a third party, or a hospital visit, or from obvious symptoms of infection.

• Consistent condom use is a defence against a charge of reckless HIV transmission. However, the word ‘safeguards’ is used, rather than condoms, because it appears that the CPS is trying to cover a wide range of differently transmissible conditions.

• Transmission must take place for a recklessness charge. There is no crime of ‘attempted reckless transmission’. THT says it has “seen a number of cases where local CPS officers have tried to bring non-existent charges, mainly of ‘attempted recklessness’, which is clearly nonsense. All such cases have foundered upon reaching court. It is very helpful that the CPS have stated clearly that this is not appropriate. However, it is possible to bring a charge of attempted intentional transmission, and there is no defence of consent available in charges of intent. To date, nobody has been successfully prosecuted for intentional transmission.”

Positive responses
The CPS policy document says in its conclusion that, “cases involving the intentional or reckless sexual transmission of infection may raise very difficult and highly sensitive issues. We recognise that obtaining sufficient evidence to prove the intentional or reckless sexual transmission of infection will be difficult and that accordingly it is unlikely that there will be many prosecutions.”

Both THT and NAT – who along with the African HIV Policy Network, the British HIV Association, Positively Women and the (now defunct) UKC – were consulted on the policy document, cautiously welcome its publication.

"For years now we have seen huge variations in how justice has been administered in this area of the law. This has caused problems for police, courts and people caught up in prosecutions." said THT’s Head of Policy, Lisa Power. "The new CPS guidance will go a long way towards removing confusion, cutting the most inappropriate investigations short and clarifying where people with HIV and other STIs stand if they transmit them."

NAT’s Chief Executive, Deborah Jack, notes that, “this new guidance from the CPS is helpful in clarifying the prosecution process. The level of evidence needed to prove intentional or reckless sexual transmission of infection has rightly been set very high and it is unlikely that there will be many prosecutions. However whilst prosecutions continue the National AIDS Trust will work to ensure the best possible advice is available to prosecutors, lawyers, police, support organisations, healthcare workers and people living with HIV.”

‘Disappointing’ and vague
However, academic lawyer, James Chalmers, Senior Lecturer at the University of Edinburgh School of Law, says that, “it’s disappointing that the CPS are too coy to use the word ‘condom’ in the document... In terms of intelligible public guidance it leaves a lot to be desired.”

He also criticises the document for leaving the most important question unanswered. “Aside from acknowledging the importance of scientific evidence, I don't think the document takes us much further forward,” he tells aidsmap.com. When you strip out the guidance as to what the law is, you're not left with very much of a guide as to when the law will be used. The difficult question was always ‘when will the CPS consider it in the public interest to prosecute?’ and that question is left unanswered.”

And defence lawyer, Khurram Arif, of London solicitors, Hodge Jones & Allen, who has successully defended three clients against reckless HIV transmission charges, notes that, although “it is encouraging to see that the guidelines actually specify that scientific and medical evidence should be gathered as part of the investigation,
I think the CPS will always get stuck on the point of causation.”

In addition, both THT and NAT admit they are disappointed with various parts of the guidance. “The CPS are less clear about condom breakage during sex. THT believes it should be an adequate defence, if a condom is found to have broken during sex and HIV transmission occurs as a result, for the defendant to have promptly advised their partner to get PEP. We will be pressing for further clarity on this.”

Yusef Azad, NAT’s Director of Policy and Campaigns, also tells aidsmap that he is disappointed that “there is no definition of what constitutes reckless behaviour in relation to HIV transmission. In some ways this could be a good thing [because] at least we don't have an incorrect or unhelpful definition. But the CPS leave it instead to individual clinicians to advise in each case with a worrying possibility of inconsistent approaches and clinicians simply rehearsing their own ethical opinions rather than providing obejective expert advice.”

Finally, it should be noted that the CPS only become involved once a case has been investigated by the police, and that so far there is no guidance for the police in this area. Khurram Arif points out that in his experience, “I have not come across many [police] officers who are familiar with any CPS guidelines.”

However, both NAT and THT plan to work with the Association of Chief Police Officers to help create a more unified – and better-understood – criminal justice system policy now that the CPS guidance has been published.

Australia: Melbourne man not guilty of reckless HIV transmission

A Melbourne man on trial for reckless HIV transmission was found not guilty by a jury this week. Details are sparse, but it seems the case hinged on whether the accused had disclosed his HIV status to the complainant before having unprotected sex. Unusually, the jury believed the accused.

If anyone knows any more details, please post a comment, below.

Story from The Age is below.

Man not guilty of deliberate HIV infection

Sarah-Jane Collins
March 18, 2008 - 9:44AM

An HIV-positive man accused of deliberately infecting another person with the disease, was found not guilty yesterday.

The man, who cannot be identified, was acquitted by a County Court jury on a charge of reckless conduct endangering serious injury.

Prosecutor Alex Albert claimed the man had tested positive to HIV in 1996 but had unprotected sex with the alleged victim on numerous occasions.

Mr Albert said the man had not told his victim about his HIV status before having unprotected sex. He told the jury that the man later sent a series of text messages to the alleged victim about his HIV status.

He told the jury that the man was well aware of the possibility of transmitting HIV through unprotected sex.

But the jury disagreed.

At the trial opening, Paul Higham, for the accused, said his client had told the alleged victim he was HIV-positive when they first met.

"The case you're going to hear is a tragedy. It is a sad, sad tale. It's a sad tragedy, but it is not a crime," he told the jury, who ultimately agreed.

Uganda: President Museveni calls for death penalty in criminal HIV transmission cases

President Yoweri Museveni has given a speech calling for the death penalty for anyone who is found guilty of Uganda's proposed criminal HIV transmission laws.

“I am glad to learn that the parliamentary committee on HIV/AIDS is coming up with a law to punish people who deliberately infect others. I would advise that they be condemned to death by hanging,” he said, to murmurs from the crowds.

Museveni chided the residents for the lukewarm reception to his proposal of a death penalty. “I hear some of you have not welcomed this proposal; but why would one knowingly infect others,” he asked.

Article from Uganda's Sunday Vision newspaper, below.

THOSE WHO SPREAD AIDS SHOULD HANG
By Cyprian Musoke

PRESIDENT Yoweri Museveni has called for death penalty for people who knowingly spread the HIV/AIDS virus.

He also called for the outlawing of primitive methods used by the Bagishu and Sebei in eastern Uganda of using knives for circumcision that are likely to spread the virus.

Speaking at the commemoration of 25 years since the first case was identified at Kasensero landing site in Rakai District on Friday, the President lauded the parliamentary committee on HIV/AIDS for coming up with the draft Bill.

“I am glad to learn that the parliamentary committee on HIV/AIDS is coming up with a law to punish people who deliberately infect others. I would advise that they be condemned to death by hanging,” he said, to murmurs from the crowds.

Museveni chided the residents for the lukewarm reception to his proposal of a death penalty. “I hear some of you have not welcomed this proposal; but why would one knowingly infect others,” he asked. “Even the Bagishu and Basebei, we also need to warn them against using knives to cut people left and right,” he said.

Reminiscing on the origin of Uganda’s AIDS realisation, Museveni said when the first case was reported in Kasensero in the 1980s, he called all the health experts who informed him that it is contracted from promiscuity and, not insect bites. “I felt relieved to hear that it is only transmitted through promiscuous sexual relationships. My biggest worry was that insect bites could transfer the virus. I was relieved when they told me it was through sex, because I knew that it would that way be easy to stop,” he said.

He said at the time there were only two places with testing equipment in the country: Nsambya and Lacor hospitals, upon which he directed that every hospital in the country get one. On realising the magnitude of the problem, Museveni said, he turned to political rallies to spread the anti HIV/AIDS gospel, because the messages the Ministry of Health was putting out were too frail.

He amused the audience when he recalled: “They were putting adverts on the radio saying, ‘Love carefully, zero grazing’. “I told them that is not loud enough,” he said while gesturing and rolling his eyes.

He thanked Parliament for recognising him and his wife Janet with plaques for their contribution.“I approached it as a soldier — when there is a problem we just attack it directly,” he said.

He recalled when retired Cuban President Fidel Castro called him aside on the periphery of the Non-aligned Movement in Harare and told him there was a big problem in Uganda. “I had sent 60 soldiers for training in Cuba, he told me they had checked them and found 18 of them sick of AIDS. He told me that was a high number which made it possible for a huge number of people in the country to be infected,” Museveni recalled.

He called for more sensitisation, ensuring safe blood transfusion, and prevention of mother-to-child transmission.

Although he is not against condom use, the President added, he wouldn’t advise his children to sexually interact with people whose status they do not know simply because they have condoms.

Parliament Speaker Edward Ssekandi said that President Museveni’s bold fight against Aids had catapulted Uganda onto the international map, and made Museveni a senior global consultant on HIV/AIDS prevention.

HIV/AIDS committee chairman Elioda Tumwesigye said the fact that Uganda now has an ARV factory should not make people complacent, saying that after 25 years, the figure had stagnated again. He called for a re-awakening of the fight.

Museveni said countries with highest condom use have the highest infection rates, adding that had Uganda dwelt on only abstinence and faithfulness, the 6.3% infection rate would be lower.

US: New York State man sentenced to four years for rape, passing on HIV.

A 40 year-old HIV-positive man from Syracuse, New York, pleaded guilty to the second-degree rape of a 15 year-old mentally disabled girl, and on Tuesday was sentenced to four years.

...the prosecution looked into whether there was any more serious charge McGloun could face. But even if authorities could prove McGloun knew he was HIV-positive when he had sex with the victim, the only crime that might include would be reckless endangerment. That is the same level felony as the second-degree rape charge and would carry no additional jail time, the prosecutor said.

The story, from the Syracuse Post-Standard, is below.

Victim's HIV blamed on rapist

Willie McGloun, 40, is sentenced for raping teen who tested positive.

Tuesday, March 18, 2008

By Jim O'Hara

A local man was sentenced Monday to four years in state prison for having a sexual encounter with a mentally disabled teenager who has now tested positive for HIV.

Willie McGloun, 40, had nothing to say before being sentenced by state Supreme Court Justice John Brunetti to the penalty agreed upon when he pleaded guilty to second-degree rape. Assistant District Attorney Andrew Tarkowski said the charge was based on the fact the 15-year-old victim was unable to consent because of her mental disability.

Tarkowski said McGloun was a friend of the victim's aunt and had been staying with the family at the time of the incident Sept. 23 in DeWitt.

In court, the prosecutor read letters from the victim and her mother in which they both talked of how the girl spent her 16th birthday crying as she awaited the outcome of her HIV test. Both the girl and her mother wrote of the trauma of testing positive for HIV, something they blamed on McGloun.

The mother said McGloun may be going to prison but he had sentenced her and her daughter to "life in hell."

Tarkowski said the prosecution looked into whether there was any more serious charge McGloun could face. But even if authorities could prove McGloun knew he was HIV-positive when he had sex with the victim, the only crime that might include would be reckless endangerment. That is the same level felony as the second-degree rape charge and would carry no additional jail time, the prosecutor said.

"It is rare," Chief Assistant District Attorney Christine Garvey said of having a defendant pass on HIV to the victim of a sexual assault in this community.

"I've never had a case where that happened," said Garvey, who heads the prosecution's Special Victims Unit.

Australia: Melbourne man on trial for reckless HIV transmission

An HIV-positive Melbourne man is on trial for reckless HIV transmission. It's not clear from the report whether the complainant is a man or a woman, but my gut reaction is that this is a heterosexual case.

The case appears to centre on disclosure, rather than causation.

Paul Higham, for the accused, said his client had told the alleged victim he was HIV-positive when they first met.

If the accused's allegations that that complainant was "sleeping around" are true, however, causation may well be at issue.

You'll never prove it's me because you f---ed everything in sight," read a third message that Mr Albert said was sent to the alleged victim after reporting the man to police.

This may certainly test the limits of phylogenetic analysis, but it's not clear from this report that the defence is following that line.

I've been delaying posting this story from The Age because I was waiting for a follow-up story to publish more detailed to help me figure out whether or not this is a new case, but since nothing else has been published so far, thought I should share it now.

If anyone knows more, please add a comment.

HIV man accused of deliberate infection
Sarah-Jane Collins
March 6, 2008

An HIV-positive man deliberately infected another person and then sent a text message saying "You're full of AIDS", a Melbourne court has been told.

The man, who cannot be identified, has pleaded not guilty to one count of reckless conduct endangering serious injury.

"The accused told (the alleged victim) he had 'had the last laugh' as he had been infected with HIV for over three years," prosecutor Alex Albert told a County Court jury.

Mr Albert said the accused man had tested positive to HIV in 1996 but had unprotected sex with the alleged victim on numerous occasions.

Mr Albert said the man had not told his victim about his HIV status before having unprotected sex. He told the jury that the man later sent a series of text messages to the alleged victim about his HIV status.

"Hope you told him you have AIDS," read one, referring to the alleged victim's sexual partner. "You lied so many times about sleeping around that I never trusted you, you f---wit, but I got the last laugh," said another.

"You're full of AIDS, you c---. You'll never prove it's me because you f---ed everything in sight," read a third message that Mr Albert said was sent to the alleged victim after reporting the man to police.

He told the jury that the man was well aware of the possibility of transmitting HIV through unprotected sex. "The accused foresaw the probable consequence … and was indifferent to it," he said.

But Paul Higham, for the accused, said his client had told the alleged victim he was HIV-positive when they first met.

"The case you're going to hear is a tragedy. It is a sad, sad tale. It's a sad tragedy, but it is not a crime," he told the jury.

The trial continues.

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."

UK: Bareback porn scandal goes mainstream

The BBC has investigated gay bareback porn, following concerns over UK-produced porn resulting in HIV infections. Following a Newsnight investigation, three films have been withdrawn, and UK bareback porn producer, Icreme, now says it will only make safer sex porn.

Although this is not strictly a criminal HIV transmission issue, there are definitely questions that linger over the criminal liability of bareback porn producers. One wonders now that this has hit the mainstream, whether the police or Crown Prosecution Service will get involved?

HIV scandal in gay porn industry
By Madeleine Holt
BBC Online
Tuesday 4th March, 2008.

Three films have been withdrawn from sale following a Newsnight investigation into the health risks of so-called bareback gay porn - which shows men have unprotected sex. It follows concerns within the gay community that performers are being infected with HIV and other sexually transmitted diseases.

Two of the DVDs featured footage from a week-long shoot during which eight British models had sex with each other in multiple combinations without condoms.

Four of those who took part were diagnosed as HIV positive soon after. One of the men told the BBC he was distressed that footage which he believed showed him becoming infected had been put on sale.

In a separate case a British producer, Rufus Ffoulkes, was jailed last week on a child pornography charge for putting a 16-year-old boy in a gay porn film in which he had unprotected sex.

The US company which released the film had refused appeals to stop selling the DVD until it was approached by Newsnight.

Now, Britain's leading bareback film company, Icreme, has told the BBC it has decided to only do films using condoms.

Most heterosexual pornography has never featured condoms. But showing unprotected sex became taboo in gay porn after HIV and Aids emerged in the 1980s.

Yet in the last four years there has been an explosion in the production of bareback films. They now make up about 60% of the gay market.

Some health officials believe this is a sign of a wider complacency in society about the risks of HIV and other sexually transmitted diseases which is mirrored in rising statistics for new infections.

Ceri Evans, Senior Sexual Health Adviser at Charing Cross Hospital in London, told Newsnight: "I think that there is a possibility of something being called condom fatigue.

"We have been talking about condoms so long that people are bored or think they know it all. Education in schools is not what it could be, for anybody, for heterosexual but particularly if you are gay."

The rise of bareback porn exasperates many who lived through the 1980s and 1990s. In the US the leading gay porn director Chi Chi Larue has taken a very public stance against bareback films.

"After all the gay community has been through why are we putting people at risk for porn," he says in a new advert aimed at persuading consumers to boycott bareback films.

In Britain the campaign against bareback is being lead by a director called Steven Brewer.

He is inviting both producers and performers to sign up to a new code of practice designed to minimise risk within the gay porn industry.

He told Newsnight: "I just don't want another 18-year-old model crying on my shoulder not sure how to tell his partner or his parents that he is now HIV positive."