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Criminal Transmission of HIV
An increasing number of people living with HIV are being prosecuted for transmitting the virus to their sexual partner(s). Stories of people 'deliberately' or 'recklessly' transmitting HIV to others have appeared in the media since the epidemic first began, and some of the individuals concerned have even been criminally charged and imprisoned.
But while at first it might seem obvious to prosecute someone for recklessly or intentionally infecting another with a virus that has the potential to be fatal, this assumption, and its consequences, can present numerous problems.
So what are the issues around prosecuting someone for transmitting HIV? Is it appropriate and constructive to try and criminalise HIV positive people in this way? What impact does criminalising the transmission of HIV have on the global epidemic? And what can past cases teach us?
Intentional, reckless or accidental?
Before looking at the complexities of prosecuting people for infecting others with HIV, it is first necessary to understand the categories of HIV transmission in the context of the law. The definitions below are based on general categories and are not specific to any particular country or legal system.
Intentional (or deliberate or wilful) transmission, is considered the most serious form of criminal transmission. Some cases have involved individuals (both HIV positive and HIV negative) who have used needles or other implements to intentionally infect others with HIV. Others have been based on HIV positive people who have had sex with the primary intent of transmitting the virus to their partner.
Intentional transmission can also take place when a negative partner has an active desire to become infected with HIV. This is unlikely to lead to prosecution however, as both parties consent.
This is where HIV is transmitted through a careless rather than deliberate act. If, for example, a person who knows they have HIV has unprotected sex with a negative person, but fails to inform them of the risk involved, this could be classed as reckless transmission in court. "Reckless" here implies that transmission took place as part of the pursuit of sexual gratification rather than because the HIV positive person intended to give their partner HIV (HIV is of course not 'automatically' transmitted every time someone has unprotected sex).
This is the most common way that HIV is passed on. A person is generally said to have accidentally transmitted HIV if:
- They were unaware that they had the virus, and therefore did not feel the need to take measures to protect their partner.
- They were aware of their HIV positive status and they used a condom during sex, but the condom failed in some way (although there have been arguments that this should be classed as a reckless act, as we shall see later).
The complexities of prosecution
The divisions between each of the three categories can be very blurred, and often depend largely on individual interpretation. Even after a decision has been made on what grounds to prosecute, it may still be difficult for a court to decide whether to find someone guilty or not. Some of the most problematic issues include:
It might appear that proof is a straightforward issue, but proving that an individual has transmitted HIV can be exceedingly difficult.
Firstly it needs to be proven that the accused (let's call them A) was definitely the source of the accuser's (B) HIV. This would involve a range of evidence including sexual history, testing history and scientific evidence in the form of phylogenetics. This compares the DNA of the virus that A and B are infected with (see the Richard D. Schmidt case study, below, for application in US courts). If they are completely different then it means B almost certainly did not acquire HIV from A, and the case would probably be thrown out. If the strains are very similar, however, it is possible, though not conclusive, that A infected B. Phylogenetics cannot reliably estimate the direction of transmission and therefore it is possible that B infected A. Furthermore, both could have been infected by the same third party, or different third parties who shared similar strains of HIV. Due to its shortcomings, advocates recommend phylogenetic evidence should only be considered in the context of all other evidence.
The different ways two people, 'A' and 'B', could be infected with similar HIV strains.
Often, the only definitive proof would be a negative test on B that was performed after A received a positive test. Even so, if the complainant had had multiple sexual partners, pinning responsibility on a particular individual could be very difficult.
In cases where intentional transmission needs to be proven, evidence needs to be found that A actively intended and wanted to infect B. Unless there is physical proof of this (e.g. a syringe filled with HIV positive material, a note, or a written confession), it can often just be one person's word against another. With cases of sexual transmission, proving intention can be virtually impossible as the very nature of sexual HIV transmission means there are no witnesses: what happens in the bedroom is essentially private. Therefore, if no evidence of intentional transmission could be found, a charge of reckless or careless transmission would probably be chosen. Whether someone can be legally charged with reckless (as opposed to intentional) transmission depends entirely on an individual country's laws and courts. In some places there is no differentiation between the two.
Consent and disclosure
The majority of criminal convictions involving sexual transmission involve an HIV positive person not informing their negative partner about their status. In some cases, the positive person may have actively lied in response to a direct question in order to persuade their partner to have unprotected sex. In others, they may simply not have mentioned their status. A prosecution involving deception might carry a more severe penalty than a simple failure to disclose, because it affects a person's choice to consent to sex. But again, this depends on local laws.
Consent is an important issue in all criminal prosecutions. If the accused had simply not mentioned they are HIV positive, then the prosecution would probably argue that they had been reckless by not disclosing their status and not informing their partner of the risks involved in intercourse. However, the defence could well counter this by saying that the balance of responsibility is 50:50, and that by agreeing to having unprotected sex, the ‘victim’ effectively consented to all the risks involved, including that of HIV. This argument was used in the appeal trial of Mohammed Dica, the first person in England to be accused of recklessly transmitting HIV (see below).
If the accused had actively deceived their partner, and told them they were negative when they were not, then the prosecution could quite easily argue that the 50:50 balance of responsibility had been taken away, making the accused more liable to prosecution.
The argument that non-disclosure equals guilt could potentially even be applied if the person on trial had used a condom. Some say that sex with a condom, but without disclosure of status should also count as reckless transmission. This is because condoms are not always 100% effective. If a condom fails, and an individual becomes infected with HIV, there is potential for that person to accuse their partner of being 'reckless' for having withheld information that may have influenced their decision to have sex.
Assumed status and trust
Disclosing one's HIV status to an intimate partner can be extremely difficult. Many people have difficulty coming to terms with having HIV and remain in denial of their condition. The fear of rejection and stigma can also prevent people from being honest, particularly if they are worried about friends, colleagues or members of their family finding out. Likewise, asking about someone else's status can be hard because of the risk of offending them, or 'spoiling the moment'. In such circumstances, many people choose to make assumptions instead.
Ironically, this is particularly true in high-prevalence areas or among high-risk groups where virtually everyone has heard of HIV. A positive person who engages in casual sex with a negative person may, for example, assume that by failing to suggest the use of a condom or failing to ask about status, the negative partner is either already positive themselves or does not care about the risks of HIV. Likewise, a negative person may assume that by not using a condom and not talking about status, their partner must be negative too:
“If she was HIV positive, she'd ask me to use a condom...” or “He's not using a condom, so he must be HIV positive, like me”
There have been cases in the UK (such as the Sarah Jane Porter case below) and abroad, where police have assumed that because HIV transmission can now be a criminal offence, it is acceptable to fully investigate any HIV positive person about whom they receive a complaint. In some cases, this will involve actively raiding the accused’s home for evidence of HIV positive status or demanding medical records from HIV clinics. Police have also been known to track down past partners to inform them of their risk, or even to persuade them to testify against the accused individual.
How such activities fit in to national laws about privacy and confidentiality needs to be assessed very carefully, and HIV positive people need to be aware of their rights if ever they undergo such an investigation. It also needs to be made very clear who should be traced, which previous partners should be contacted, and how this should be done to ensure proper counselling and help is provided. Questions about whether anyone has the right to trace and contact previous partners if the person concerned does not give consent for this to happen also need to be addressed. Many HIV and AIDS advocacy groups campaign against inappropriate police investigations. 1
Reasons for prosecuting
Sometimes a lack of knowledge regarding HIV-associated risk and what a prosecution may entail could lead to someone making a formal complaint before they later realise it is not in their interest to do so. An impulsive overreaction upon being diagnosed, due to a misunderstanding of transmission risk, or acting out of vengeance against a former partner following a bad break-up, for example, could lead someone in the heat of the moment to try and take legal action. Poor advice by solicitors or, as mentioned, police may encourage a complainant to believe they have a solid case when it is unlikely to lead to conviction. Furthermore, they may later doubt that the defendant was the source of their infection. Complainants may also be led to believe they are entitled to complete anonymity only to find their entire sexual history dragged publicly through the courts in a case that was unlikely to end in conviction anyway. For these reasons, criminal prosecutions can be extremely damaging to all involved in the trials, including families and those identified as victims. 2
Criminal prosecution: right or wrong?
Given the ambiguities and difficulties outlined above, it is apparent that any form of legislation on the issue needs to be clear about what forms of transmission are and are not covered. There are generally three broad schools of thought on how this should work:
No criminalisation at all
One option is to completely ban any HIV-related prosecutions. This could solve the problem of intentional transmission being very hard to prove, and other cases being presented as intentional when they are not. Many would consider this rule to pose a threat to public health by leaving individuals who wish to do harm immune to prosecution.
Criminalisation for intentional transmission only
Generally this is the sort of policy that most HIV and AIDS organisations, public health officials and civil rights groups favour 3 4 5. They argue that by restricting the law to cases of intentional rather than reckless transmission, it would greatly reduce the confusion amongst HIV positive people over what is legal and what is not. It would also cut down on the number of HIV positive people being criminalised unfairly. In cases of reckless or accidental transmission, most agree that education and counselling is a more effective prevention method than imprisonment or fines.
“Laws and prosecutions do not stop the spread of HIV. There is no correlation between the existence of these laws and the drop in HIV infections.” UNAIDS Executive Director Michel Sidibé 6
Furthermore, it has been argued that even in cases of intentional transmission the wording of laws used to prosecute should not be HIV-specific. Instead, existing criminal law should be used so as not to further stigmatise people with HIV as a whole. 7
Criminalisation for all forms of transmission
As the list of trials at the end of this page demonstrates, many states and countries now allow the prosecution of HIV-positive people for all forms of transmission, including reckless and accidental, and even for exposure where no transmission has taken place. Some have specific laws permitting this, others use more general criminal laws to obtain a conviction. As with any type of criminal trial, once one prosecution is successfully achieved, it sets a precedent for future trials, and makes lawyers more likely to take on similar cases. This growing trend is of particular concern for many organisations trying to advocate on behalf of HIV positive people around the world.
“HIV-specific criminal offences for non-malicious HIV transmission are inconsistent with state obligations to respect, protect and fulfill the human right to the highest attainable standard of health.” UN Rapporteur on the Right to Health, 2010 8
Below is a short summary of some of the arguments for the criminalisation of HIV transmission, often cited in the media and within law and government bodies, and the counter arguments against such legislation. Generally, arguments in favour of criminalisation for all forms of transmission have been criticised by a body of HIV and AIDS organisations as being archaic, not evidence-informed, and very misguided even when well-meaning. 9 10 11
|FOR CRIMINALISATION||AGAINST CRIMINALISATION|
|If you are HIV positive, failing to use protection is wrong, and people who do wrong should be brought to justice through the law regardless of their health status or background.||Criminalising HIV positive people does not address the complexities involved in disclosure and increases HIV stigma, particularly when positive people being brought to trial are demonised by the press.|
|Giving someone HIV is akin to murder.||HIV is an unpleasant virus to live with, but it is no longer a death sentence, and with modern antiretroviral drugs, HIV positive people can live a healthy life for many years.|
|If you are HIV positive, it is your duty to use protection. The idea of 'shared responsibility' is based on ideals that came about when HIV was still a 'gay' illness. With heterosexual relationships, it is not always a practical reality. Many women, even in the West, do not necessarily have the power to force their partners to wear a condom.||The more cases that come to court, the more people will believe that the responsibility for having safe sex should lie solely with positive people. This could in turn lead to more incidents of unprotected intercourse, with people believing it to be a legal responsibility for their partner to disclose any infection. Safe sex should always be a shared concern.|
|Criminalising people for reckless transmission will act as a deterrent and will make HIV positive people think twice before having unprotected sex.||The law has little effect on people's sexual behaviour, as is clear from the number of teens who have illegal underage sex. Criminalisation of transmission does however enable lovers to use the law as a way of exacting revenge. In such cases, the original HIV positive partner would always be at a natural disadvantage.|
|To ensure that people don't believe they are immune from prosecution just because they haven't taken an HIV test, it should be possible to call an HIV positive person 'reckless' even if they have never actually had an HIV test - knowledge that they have put themselves at risk in the past should be enough to make them aware of their HIV risk and thus legally obliged to use a condom in the future.||Prosecuting positive people for reckless transmission could well leave many afraid to be tested, believing that if they do find out their status, they could be liable to all sorts of criminal charges. Avoiding this problem by telling people they should be 'aware' of their risk even if they haven't tested for HIV is entirely unfair. It is also impossible to assess or judge how 'aware' of past risk of infection any one person is or should have been.|
|Putting people in prison will stop them from spreading HIV and endangering the community.||Imprisonment does nothing to help people come to terms with their HIV and take a safer attitude towards sex. Education and psychological counselling would be a more appropriate course of action in many cases. The sharing of needles for injecting drugs and the high incidence of male rape and sex between men in prisons also mean that HIV transmission is still perfectly possible, even behind bars.|
|Criminal cases help to uncover and warn lots of HIV positive people who might not otherwise learn their status.||Criminal cases give police licence to investigate the background of anyone they suspect of having passed on HIV. This can represent a serious invasion of privacy as well as a potential breach of confidentiality and anonymity, and it may well be entirely unjustified.|
|Laws on the transmission of diseases do not necessarily apply just to HIV. Many laws relating to HIV could potentially be used to prevent people spreading many other fatal illnesses.||No other illnesses are treated with the same hysteria as HIV, and few people are ever criminalised for transmitting them. It is for example very unlikely that anyone would think to prosecute an employee of a residential care home for coming into work with the flu and giving it to the residents, even if several of those residents subsequently died. HIV is only singled out in criminal cases because of its association with stigmatised groups and promiscuity.|
|HIV positive people can easily be divided into legal definitions of "guilty" (people who 'bring HIV upon themselves' and recklessly give it to others) and "innocent" (victims who were infected through no fault of their own, and would never put anyone else at risk).||These categorisations are far from clear cut, and most HIV positive people have at some point in their lives belonged to both. After all, everyone who transmits HIV was once a 'victim' of someone else with the virus.|
|Vulnerable women who do not have control over their sexual relations will find protection in laws that would prosecute reckless male partners.||Women will face a greater risk of prosecution as they more often know their status through attending health clinics more frequently. A HIV positive man may accuse his female partner of infecting him, because she was diagnosed first, even if he infected her and was not diagnosed until much later.|
How does criminalisation affect the lives of HIV-positive people?
“The people who complain to the police, supported by the criminal justice system, believe that they should be warned when their sexual partner is HIV-positive. Never mind the incredible difficulties we might have disclosing this very sensitive information to people who we don’t trust; the deep denial we often face earlier on in our diagnosis; the difficulties we have negotiating or using condoms; or the fact that those of us on effective treatment are going to be far less infectious than people who are undiagnosed and who couldn’t possibly warn their partner.” Edwin J. Bernard, from Germany, 2011 12
While most people living with HIV who know their status practice very safe sex, and would never have cause to be taken to court, many say that the issue of criminalisation still affects them. A recent survey by researchers from the Sigma research team at Portsmouth University for example, 13 found that 90 percent of the HIV positive people they interviewed were critical of the growing trend for criminalisation of reckless HIV transmission. Most said this was because they believed that the responsibility for protected sex should be shared, or because they thought criminalisation increased the stigma they faced. A number also said they believed that criminalisation was a step back towards the culture of ‘blame’ that surrounded the early years of the epidemic.
Many people living with HIV find that the criminalisation of sexual transmission further marginalises them as a group and adds more stigma to their condition. Criminalisation can serve to make people more fearful of disclosing to their partners, and reluctant to take part in testing or treatment programmes. 14
Right or wrong however, criminalisation does mean there is now an extra concern for any HIV positive person who decides to have a sexual relationship, and many HIV organisations are finding that they have to take the issue into consideration when giving out advice, for example THT provide information on dealing with this issue in the UK. 15
What trials for criminal transmission have there been?
Criminal transmission trials have been held in many countries around the world, but most have occurred in the West, with the USA accounting for the largest number. The increasing number of cases has led many groups to exert pressure on governments to change the law:
“The facts of many of these cases read like what should be relics from a less informed past. Instead, they describe increasingly frequent current events.” - Catherine Hanssens, Centre for HIV Law & Policy, U.S., 2011 16
Below are some of the better-known trials to have taken place:
Dr Richard J. Schmidt, 1998 17, 18: Richard Schmidt was a doctor from Louisiana, USA, who was accused of infecting his lover, a nurse called Janice Trahan, by injecting her with HIV infected blood. Trahan alleged that Schmidt had injected her with the blood of one of his positive patients in an act of vengeance after she tried to end their relationship. DNA samples of the virus in Trahan's blood and that of the positive patient in question were found to be very similar, but Schmidt's defence team insisted that 'very similar' was not scientifically accurate enough. HIV rapidly mutates and changes its DNA structure once it enters another person's body meaning comparisons can be difficult. However, using a new technique called ' phylogenetics' (or 'evolutionary analysis'), scientists were able to determine that Schmidt's patient was extremely likely to have been the source of the virus found in Trahan. Schmidt was found guilty and sentenced to 50 years.
This was the first time that phylogenetics had been used in a criminal transmission trial, but it is now the standard way of determining the source of HIV infection in trials. Incidentally, phylogenetics was also used in the early 90s to determine the cause of infection of five patients treated by the HIV positive Florida dentist, Dr. David Acer. Acer died before any criminal charges were brought, but following testing, he was found to be the source of all five infections.
Brian Stewart, December 1998 19: Stewart was a medical technician from Illinois who was sentenced to life in prison after deliberately injecting his son with HIV infected blood, allegedly in an effort to kill him and avoid paying child support. He was found guilty after all other suggested sources for the boy's infection were ruled out. On one occasion Stewart allegedly told the boy's mother not to bother seeking child support because the child would not live beyond the age of five. On another, he told colleagues that he had "the power to destroy the world… I would inject them with something and they would never know what hit them."
Christophe Morat, June 2004 20: Morat was sentenced to six years in a French prison under legislation designed to be used in cases of poisoning (France has no specific anti-HIV transmission laws). He was found guilty of failing to disclose his status to two women, Isabelle and Aurore, both of whom subsequently became infected with HIV. Aurore later committed suicide and Morat's appeal against his sentence was subsequently rejected. Isabelle is now a member of a major HIV action group known as Femmes Positives, whose mission is to get the French government to create a specific HIV transmission-related law that will give them the right to prosecute former lovers. The case, and the demands of Femmes Positives, has opened up a debate in France over whether HIV positive people should ever be divided into 'victims' and 'criminals' in the eyes of the law, or whether the conventional doctrine of 'shared responsibility' in contraception should remain.
Hans-Otto Schiemann, November 2004 21: A 56-year-old German who lived in Thailand, Schiemann allegedly tried to infect nearly 100 Thai women (including his wife) during the 10 years he lived in the country. As Thailand deliberately has no laws that outlaw unprotected sex or its consequences, he was eventually sentenced to two months in jail for overstaying his visa, and was deported back to Germany. Schiemann was reported to have a pathological hatred of Thai women, and referred to them as 'witches' and 'monkeys', but claimed he had done nothing wrong. He was deported for a second time in November 2005 after he was found to have re-entered the country.
Anthony E. Whitfield, December 2004 22: An African-American from Lacey in the USA, Whitfield was sentenced to an unprecedented 178 years in prison by a court in the state of Washington after exposing 17 women to HIV and infecting his wife and four others. He was found guilty on 17 counts of first-degree assault with sexual motivation, two counts of witness tampering and three counts of violating a court protection order. His conviction spawned a racist leafleting campaign in the state capital, Olympia, with flyers proclaiming "Don't Have Sex With Blacks; Avoid AIDS" delivered to more than 100 homes. Whitfield is one of around 150 people to have been convicted of criminal HIV transmission in the US.
Mohammed Dica, March 2005 23: Kenyan-born with family in Somalia, Dica lived in Mitcham, SW London. In the first ever HIV transmission conviction in England and Wales, he was found guilty of reckless (rather than deliberate) Grievous Bodily Harm against two women and was sentenced to 8 years in prison in November 2003. However, in March 2004 he appealed, claiming that he had not been allowed to give evidence that suggested the women had fully consented to the risks of unprotected sex with him. A retrial was ordered and began in June 2004, but was later halted due to questions over the validity of documents submitted by one of the complainants. This woman subsequently withdrew her complaint and dropped out of the trial. In December 2004, a third hearing was held, this time with only one complainant, but the jury failed to reach a verdict. A fourth and final hearing in March 2005 however found him guilty on one count of GBH and he was jailed for four and a half years.
The trial caused concern among many AIDS and human rights organisations in Britain, as UK Law Commission guidelines recommend that only cases of deliberate transmission ever be brought to trial. However, the prosecution believed it had a case, as Dica was alleged to have actively persuaded one of the women not to use condoms, even though he knew he was HIV positive. He also led the other to believe he was HIV negative and a rich single lawyer, when in fact he was HIV positive, unemployed and married with children.
Other trials in the UK include:
- Feston Konzani: an asylum seeker from Malawi, jailed for 10 years.
- Kouassi Adaye: an asylum seeker from South Africa, jailed for 4 years.
- Christopher Walker: pleaded not guilty and was sectioned under the Mental Health Act.
- Paulo Matias from Leicester: jailed for three years
- Derek Hornett: sentenced to three years for transmitted HIV to an 82-year old women
- Unnamed man from Bournemouth: Zimbabwean man sentenced to three and a half years
- Mark James from West Sussex: Gay man sentenced to 40 months in prison in his absence after he went missing while on bail. He was found and jailed in 2010, with a further 10 months added to his sentence.
- Sarah Jane Porter (see below) from London: jailed for 32 months.
- Unnamed gay man from London: not convicted – the trial ended in an unprecedented ‘not guilty’ verdict after the defence claimed that phylogenetic analysis could not prove that the defendant had definitely infected the complainant.
- Clive Rowlands from Merseyside: Jailed for two and a half years in November 2006.
- Simon McClure from Middlesbrough: Jailed for two years and eight months in October 2011.
- An unnamed woman from Cardiff: jailed for two years.
- Stephen Kelly: Tried in Scotland in 2001, he was the first ever person to be convicted in the UK. He was jailed for 5 years.
- Giovanni Mola: sentenced to nine years in jail in April 2007 for 'recklessly infecting his Edinburgh lover with HIV and Hepatitis C'.
- Mark Devereaux: Convicted of 'culpable and reckless conduct' in February 2010 and sentenced to ten years in prison
Justin Dalley, June 2005 24: Dalley, a New Zealander, was convicted of criminal nuisance after having unprotected sex with his girlfriend and failing to disclose his status. Unusually, his girlfriend remains HIV negative, but initially told Dalley's family she was positive. She later admitted she had lied, but charges were still brought due to the alleged mental stress and trauma she had suffered on discovering her boyfriend's status. Dalley was sentenced to 300 hours' community work, six months supervision and $1000 reparation to cover his girlfriend's counselling and other expenses.
The case is also unusual because of a second woman, who on hearing of the trial, tried to prosecute Dalley for having sex with her with a condom but without disclosure. She too remains HIV negative. Dalley was however found not guilty of this charge in October 2005, because he had used a condom.
Canadian Red Cross Society, June 2005 25: In the first case of an entire organisation being prosecuted for HIV transmission, the Canadian Red Cross was taken to court after more than 1,000 Canadian citizens acquired HIV from infected blood products in the late 1980s and early 1990s. The Red Cross had run the country's national blood donor scheme for decades before the scandal, but failed to properly implement HIV and hepatitis screening for a number of years after tests for the diseases became available. Originally accused of "distributing an adulterated drug", official charges were dropped after the organisation admitted they were guilty, issued a full apology and agreed to compensate the victims. As well as a $5,000 fine, they was asked to donate $1.5 million of money not sourced from public donations to fund scholarships for the children affected by the tragedy and to finance research into medical errors.
Bulgarian medics on trial in Libya; February 1999 - July 2007 26 27: The Bulgarian medics trial began in 1999 after a number of children treated at the al-Fateh paediatric hospital in Benghazi, Libya were discovered to have AIDS. Hospital officials and parents accused a group of medics, which included six Bulgarians (five women nurses and a male doctor), a Palestinian doctor and nine Libyans, of having collaborated to deliberately infect the children. However, the foreign health workers' defence lawyer insisted that the infections were caused by poor hygiene and the multiple use of contaminated syringes within the hospital, and that they began long before the medics arrived.
The case was initially dismissed by the Libyan People's Court, but was then passed to an ordinary criminal court. At the second hearing in 2003, Prof. Luc Montagnier, the co-discover of HIV, was called in to give an impartial expert opinion. He suggested that the tragedy had probably taken place due to negligence rather than deliberate intent, and that the children had been infected at least a year before the medics arrived. Despite his report, the five Bulgarian nurses and Palistinian doctor were found guilty and sentenced to death in May 2004. The Libyans and Bulgarian doctor were freed.
After appealing against the conviction on the grounds that false confessions had been extracted from two of the nurses by torture, the case was reopened, and the death sentences were quashed in late 2005 by the Supreme court. A retrial in December 2006 again sentenced the seven to death. The medics once again appealed, but were given a third death sentence on 11 July 2007. This was commuted to life imprisonment on 18 July. After many months of negotiations with the European Union (of which Bulgaria became a part in January 2007) the medics were finally released on 24 July 2007.
The trial caused a major international incident, with many nations saying it was an attempt to divert attention away from the poor conditions in Libya's state-run hospitals. The families of the infected children refused to drop the case until they had been paid sufficient 'blood money' - compensation that would allow the death sentence to be commuted under Islamic law. Both the EU and Bulgaria refused to pay this, arguing it would imply that the medics were guilty. However, they did set up a fund designed to support the infected children, and donated money to the hospital concerned to improve the facilities and conditions. Eventually, after much international pressure and a number of deals with the EU, the demands for blood money were met by Libya itself, and the medics were released to serve the remainder of their life sentences in Bulgaria. All five nurses and the Palestinian doctor, who was given Bulgarian citizenship shortly before his release, were acquitted as soon as they returned to Bulgaria.
Sarah Jane Porter; June 2006 28: Sarah Jane Porter was a woman from London in the UK who was charged with Grievous Bodily Harm through the reckless transmission of HIV. Her case is a good example of some of the reasons why many AIDS organisations are against the criminalisation of reckless HIV transmission.
Firstly, her accuser, a former boyfriend, was not the man who made the original complaint to the police - he remains HIV negative – but someone the police tracked down in the course of their investigations, and persuaded to file charges. These investigations lasted over a year, and involved Sarah’s home being raided and her medical records being seized. Some have accused the Metropolitan Police Force of wasting police time in trying to secure a conviction, and Sarah’s legal team have made an official complaint about the conduct of police officers in the case.
The psychologist in the case told the court that Sarah was in complete denial about her HIV infection because she was convinced that she would be rejected by her friends and lovers if she disclosed her status. She was terrified of the stigma attached to HIV. However, on being found guilty, she was not offered counselling, but was imprisoned for 32 months, separating her from her young son. She also faced deep hostility from much of the tabloid press, who labelled her “pure evil” and an “AIDS avenger”, so perpetuating the stigma and idea of ‘blame’ that caused Miss Porter not to disclose her status in the first place.
Finally, no mention was made of the fact that her lovers also failed to use condoms when having sex with Miss Porter – which it was of course their equal responsibility to do.
Willie Campbell; May 2008 29: The HIV positive 42 year-old Texan was sentenced to 35 years in prison for harassing a public servant with a 'deadly weapon' after he spat in the face of a police officer who was arresting him for public intoxication in 2006. None of the three officers who arrested him became infected with HIV, in line with the fact that contact with saliva, tears or sweat has never been shown to transmit HIV. Campbell must serve half his sentence before being eligible for parole.
Campbell’s case was highlighted by South African judge, Edwin Cameron, in his speech on criminal transmission at the International AIDS Conference in 2008.
"[I]t stuns the mind that someone who has actually not harmed anyone, who has not actually damaged any property (or otherwise spoiled the world) could be locked away in these circumstances for 35 years. The inference that his HIV status played a pivotal role in sending him away for so long is unavoidable. In short: the man was punished not for what he did, but for the virus he carried." 30
Unnamed man; June 2008 31 - In the first ruling of its kind, the Swiss federal court judged a man criminally liable for passing on HIV to his partner, despite the fact that he had not been tested for HIV at the time of having sex. Since he had a history of unprotected sex, and had been aware of the HIV positive diagnosis of another previous partner, the court decided he should have suspected that he was HIV positive, and that his behaviour was risky.
Whilst only applicable in Switzerland, the ruling could set an important legal precedent. It could mean that those who do not disclose past unprotected sex to new partners can be held criminally liable in the event of HIV transmission.
On the other hand, the fact that someone who had never tested for HIV has been convicted for criminal transmission could make the lack of an HIV test no longer an effective defence against prosecution. This is a potentially beneficial development for the impact of criminal HIV transmission on public health, as it removes the deterrent to HIV testing at the individual level.
Cecelia Sliker; October 2008 32 33: An HIV-positive Florida mother became the first US women to be successfully prosecuted for mother-to-child transmission after she was found to have not taken steps to minimise the risk of her second son, born in 2004, becoming infected. In pleading guilty, Sliker was sentenced to two years' probation, avoiding a maximum 15-years in prison, as it was deemed imprisonment would prevent her caring for her son in future.
Authorities say she did not undertake preventive measures as she did not want her son’s father to know her status. Sliker had known she was HIV positive before the birth of her first son in 2001, and had taken steps to prevent him becoming infected.
Unnamed man; February 2009 34: A Switzerland-based man received a 34 month suspended sentence for exposing a woman to HIV without disclosing his status, and was imprisoned in December 2008. Geneva’s deputy public prosecutor, Yves Bertossa, appealed to the Geneva Court of Justice for the case to be dropped, following testimony from Professor Bernard Hirschel of the Swiss Federal Commission for HIV/AIDS. Prof Hirschel, co-authored the ‘Swiss Statement’ that claimed an undetectable viral load, due to effective ARV treatment, minimized the risk of onward transmission during unprotected sex. Based on this testimony, which claimed his conduct carried a 1 in 100,000 risk of onward transmission, the man’s prison sentence was overturned.
Unnamed man; December 2009 35: In New Zealand, a 35-year-old man living with HIV admitted to deliberately infecting his wife the virus. The man had pricked his wife, while she slept, with a sewing needle tainted with his blood. It is believed the man infected her so she would have sex with him again. For a year, the woman had refused to have sex, for fear of becoming infected. She had tested HIV-negative four times before her period of abstinence.
Nadja Benaissa; August 2010: In Germany, a high-profile case involving a 28-year-old pop singer resulted in a two year suspended sentence and 300 hours community service for the accused. 36 Benaissa was first arrested in April 2009, following complaints registered by three men she had sex with between 2000-2004 that she had not disclosed her HIV status. 37 One of these men had since tested positive for HIV. She was later released for undisclosed reasons. In February 2010 Benaissa was charged with one count of aggravated assault and two counts of attempted aggravated assault. 38 In August 2010 she was rearrested and appeared in juvenile court (as the first alleged crimes took place when she was 17), where she confessed to having unprotected sex and apologised for the harm caused. "In those days I was careless...I'm sorry from the bottom of my heart", she told the court. 39 Benaissa also stated at court that her doctors had told her the risk of transmitting HIV to someone else was 'highly unlikely' as long she remained healthy. 40 On the 23rd of August 2010, Benaissa received a two year suspended sentence. The leniency of the sentence (infecting someone with HIV in Germany is an offence that carries a prison sentence of six months to 10 years) was attributed to her confession of guilt and regret. 41
Criminalisation laws around the world
As of 2010, at least 600 people living with HIV in 24 countries had been convicted of criminal transmission of HIV, either through general laws relating to assault or through HIV-specific legislation. 42 Different nations and states/territories within nations have different requisite criteria for prosecutions and convictions, as well as varying degrees of punishment. Furthermore, the language of the laws are not necessarily an indicator of how they are administered. Some countries may be far more punitive than others despite prohibiting similar offences.
As of the end of 2008, 36 states in America had prosecuted HIV positive individuals for criminal transmission or HIV exposure, with many having laws specifically mentioning HIV. 43 Some states punish those convicted of offences such as prostitution or rape more severely if the person knows they have HIV. Spitting or emitting HIV-infected bodily fluids at another person while in prison is also an offence in some states. Failure to disclose one's HIV status to a partner is most often the only necessary basis for prosecution, rather than intent to infect someone else or actual transmission of HIV. 44 At least nine HIV-positive individuals in the US have been sentenced for spitting with sentences ranging from 90 days to 25 years. 45 A sample of the laws are below: 46
Alabama – Engaging in activities likely to transmit an STD is a class C misdemeanour.
California – Engaging in uninformed, unprotected sexual activity (exception for consent) with the intent to infect the other person is a felony punishable by up to 8 years in prison.
Colorado – Committing or soliciting prostitution with knowledge of being HIV positive are class 5 and 6 felonies.
Florida – Unlawful for person with HIV, with knowledge both of their infection and risk of sexual transmission, to have sex without disclosure and consent having taken place.
Michigan – It is a felony to engage in sexual penetration, however slight and regardless of whether semen has been emitted, without informing the other of his/her HIV status.
Missouri – It is a class B felony to expose a person to HIV if defendant knowingly acted in a reckless manner without knowledge and consent through oral, anal or vaginal sex. If complainant becomes infected, the charge is a class A felony. The use of a condom is not a defence.
New York – The applicable part of the law is reckless endangerment in the first degree for engaging in ‘conduct which creates a grave risk of death to another person’.
Pennsylvania – The state Superior Court ruled in a 2006 case involving oral sex that HIV positive people who do not disclose their status to their sexual partners can be charged with reckless endangerment. It follows that any kind of unprotected sex without disclosure could be prosecuted.
Texas – HIV transmission cases have been brought to court under aggravated assault laws whereby a person “intentionally, knowingly, or recklessly… uses or exhibits a deadly weapon as part of an assault”. Saliva of an HIV infected person is considered a deadly weapon.
Cases successfully prosecuted in England and Wales have been under Section 20 of the Offences Against the Person Act (OAPA) 1861, with the charge being ‘recklessly inflicting grievous bodily harm’. This carries a maximum five-year sentence. It must be proved that:
- The defendant did in fact infect their partner.
- The defendant was aware of the risk of transmission. In theory they may not have had a positive test, but they will have ‘known’ they were infected.
- The complainant did not explicitly give informed consent to sex with an individual they knew had HIV.
- The defendant did not take steps to protect their partner – consistent condom use is a defence.
No one has been prosecuted for intentional grievous harm (Section 18, OAPA). This is because the burden of proof is very high – sex would be an ineffective way of transmitting HIV if someone was intent on doing so.
In 2010, the Association of Police Officers issued guidance for police investigating the criminal transmission of HIV. 47 The new guidance was created to allow for police to deal with all cases allegedly involving the transmission of HIV in a 'fair and sensitive manner.' Under the new guidance, to be followed by police in England, Wales and Northern Ireland, people living with HIV can expect an investigation of reckless transmission only to be pursued if a complainant has been infected with HIV, an uninterrupted access to medication, and for their confidentially to be respected.
In Scotland the likely offence is ‘culpable and reckless conduct’. Theoretically, a person could be prosecuted under ‘reckless endangerment’ where transmission does not occur. 48 There have been three convictions for 'reckless conduct' since 2001 in Scotland with the maximum jail sentence so far ten years. These sentences do not affect English or Welsh law in any way.
Several nations in West Africa have adopted HIV laws based on a ‘model law’ formulated in 2004 by Action for West Africa Region – HIV/AIDS (AWARE–HIV/AIDS). Article 36 creates an offence of willful HIV transmission “through any means by a person with full knowledge of his/her HIV/AIDS status to another person”. This definition is considered very broad and disregards whether disclosure or reasonable precautions took place. Some of the countries’ laws are listed below.
- Benin law does not require transmission to have taken place.
- Togo law prohibits people with HIV having unprotected sex regardless of their partner’s status or whether consent has been given.
- Guinea law criminalises exposing others to substances that could cause transmission, regardless of the consequences, and disregards circumstances such as whether the defendant took precautions, knew their status and risk of transmission, disclosed their status, and whether or not the defendant had control over the sexual relationship.
- Mother-to-child transmission (MTCT) can be prosecuted in several countries either by specific reference to MTCT or as a mode of transmission through blood. Sierra Leone explicitly mentions pregnant mothers as a group required “to take all reasonable measures and precautions to prevent transmission”. It is believed this violates the right to medical treatment with voluntary informed consent. Also “reasonable measures and precautions” is not defined so it is not clear whether an act such as breastfeeding could be criminalised. 49
Criminal HIV transmission in Australia is considered by both public health laws and criminal laws. Most states have public health laws relating to reckless or deliberate HIV transmission, or the risk of doing so. Only New South Wales makes illegal any sexual intercourse without disclosure.
Australian state criminal laws that would likely apply to HIV transmission include criminalising acts that transmit, or risk transmitting, a serious disease (including HIV), recklessly endangering another person’s life or causing grievous bodily harm. Sentences in different states range 10 years maximum imprisonment, to a life sentence. 50
The criminalisation of people who have transmitted HIV is both a moral and a practical minefield. The very fact that the sentences received by the individuals listed above vary from a small fine to life in prison reflects just how difficult it can be to legislate and deliver a ruling on an issue where individual viewpoints, emotions, stigma and the good of public health are so inextricably mixed.
According to UNAIDS there is no evidence to suggest that criminalising HIV transmission is an effective means to prevent the further spread of the virus or achieve criminal justice. 51 If governments wish to make a dent in their countries’ epidemic, far more effective prevention programmes exist such as testing, counselling and general awareness campaigns. Where criminalisation laws have been proposed as a means of protecting vulnerable women and girls from their HIV-positive partners, a more effective approach would be to address gender-related violence, inequality and sexual coercion, as well as stigma and discrimination.
While it is perhaps an understandable reaction on the part of individuals to want to seek redress through the courts for becoming infected, on an epidemic-wide level it has been argued that criminalisation does a lot more harm than good. 52 The potential disincentive to testing, stigmatisation of HIV, misapplication of the law, prosecuting people unaware of their status, as well as other possible pitfalls can make criminalisation counter-productive.
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