Austria: HIV-positive man aquitted for ‘oral sex without ejaculation’ (Update)

Update: December 18th

A gay man on trial for allegedly exposing his ex-partner to HIV during ‘oral sex without ejaculation’ has been acquitted. The judge told the 37 year-old defendant that he had acted “entirely properly” according to Austria’s ‘safer sex’ guidance.

The case is covered in several Austrian newspapers, including Der Kurier and Der Standard, as well as the gay news portal, GGG.at.

It centred around a complaint following the end of a short-lived relationship between summer 2008 and spring 2009. The defendant was diagnosed HIV-positive during the relationship and waited several months to disclose this to the complainant. However, since he was counselled by his doctor that insertive oral sex without ejaculation would not expose his partner to HIV, and this was the only sexual risk at issue, his defence was that he had followed Austria’s ‘safer sex’ guidance.

Defence laywer, Helmut Graupner, told the court: “They are attempting to criminalise people who do exactly what the state wants them. This accusation is simply a scandal.”

(Under Articles 178 and 179 of Austria’s criminal code, disclosure is not a defence to potential HIV exposure, and so this case was not about non-disclosure, per se, but rather about whether the complainant was, in fact, exposed to HIV via oral sex without ejaculation.)

The complainant claimed on the witness stand that he had suffered mental anguish due to the fear of acquiring HIV, and he had brought the case partially because he wanted compensation for this.

However, Judge Eva Brandstetter agreed with the defence that ‘safer sex’ guidance was followed. It was “very clear that you behaved entire properly,” she told the defendant as she acquitted him.

The prosecution has until Friday to appeal the acquittal.

Original post: December 14th

Austria’s leading HIV and human rights lawyer has strongly criticised both Vienna’s prosecutorial authorities and the Austrian Ministry of Justice for allowing the forthcoming trial of an HIV-positive man for practising safer sex – namely, “oral sex without ejaculation”.

“The state must not criminalise HIV-positives for complying with the safer sex rules propagated by the same state“, says Dr. Helmut Graupner, president of Austria’s LGBT civil rights organisation Rechtskomitee LAMBDA (RKL) – who is also serving as counsel for the defendant – in a strongly-worded press release (see below). “This prosecution not only constitutes a serious human rights violation but also poses a considerable threat to public health.”

In addition Austrian MP Petra Bayr has tabled a parliamentary question to the Ministry of Justice concerning this ridiculous prosecution which asks:

  • whether Parliament is aware of this prosecution;
  • what it intends to do to ensure that prosecutors are aware of HIV tranmisssion risks and science;
  • how it can justify HIV-related prosecutions under articles 178 and 179 of the criminal code when UNAIDS recommends against such prosecutions and asks whether Parliament will consider amending these articles to reflect up-to-date science; and
  • what measures are being considered by the Justice Department to ensure consistent and science-based jurisprudence that promotes public health.

This is the second prosecution this year for perceived HIV exposure that, in fact, posed no risk whatsoever. In March 2012, a 17 year-old boy was convicted of HIV exposure after his 16 year-old girlfriend performed oral sex on him without him first disclosing that he was living with HIV. The judge said that even oral sex with condom would have been criminal as the use of condoms would not diminish the risk of infection.

The trial will take place this Monday, 17 December 2012, in room 307 at the Vienna Regional Criminal Court, Wickenburggasse 22, 1080 Vienna. Rechtskomitee LAMBDA’s press release notes that the trial is public which suggests that concerned HIV advocates could attend the trial to support the defendant (who cannot be named) and to show the prosecutor and judge that such prosecutions are out of step with science and do nothing for HIV justice.

The full Rechtskomitee LAMBDA’s press release can be downloaded here and is also reproduced below.

Austria: HIV-positive Man Prosecuted for Safer Sex

Trial next Monday in Vienna

An HIV-positive man stands criminal trial next week for practising safer sex propagated by the state and by the publicly funded aids service organisations. The prosecutor indicted him for “oral sex without ejaculation” (!), exactly what has been propagated as safer sex for decades.

The prosecution relies on Art. 178 of the Criminal Code (“wilful endangering of human beings by transmittable diseases”), an offence which for two decades had been used to convict persons (mostly women) even for sexual intercourse using a condom.

1997 the Supreme Court at last held that sexual intercourse with a condom is in accordance with the safer sex rules and no criminal offence (OGH 25.11.1997, 11 Os 171/97). And 2003 it was only after years of reopening-proceedings that the Graz Appeals Court to quash the conviction of an hiv-positive man for oral sex without ejaculation (Carinthian Oral Sex Case: http://www.RKLambda.at/news_safersex.htm). Already these days Austria´s then Minister for Health, Herbert Haupt, had stated, “that criminal persecution and conviction of hiv-positive persons for sexual contacts with hiv-negative persons in spite of them complying with the health authorities’ and aids-service-organisations´ safer sex rules run counter to effective hiv- and Aids-prevention (2313/AB XXI.GP, http://www.parlament.gv.at/PAKT/VHG/XXI/AB/AB_02313/).

Threat to effective HIV-prevention

Austria finds itself within the top ten worldwide regarding criminal conviction rates of hiv-positive persons (http://www.gnpplus.net/criminalisation/node/1262). Germany never had such a special offence and Switzerland recently restricted its law (which never had been as far-reaching as the Austrian one) to infection with malicious intent, thereby implementing a recommendation by the Swiss Commission on Aids (now: Swiss Commission on Sexual Health) (http://www.bag.admin.ch/hiv_aids/05464/12494/12821/, document for download on the right side). UNAIDS and the EU-Fundamental Rights Agency for years have been calling for a repeal of such criminalisation of HIV-positive persons and for restriction of criminal offences to intentional infection (http://www.unaids.org.fj/index.php?option=com_content&view=article&id=162:unaidsundp-policy-brief-criminalization-of-hiv-transmission-&catid=25:technical-documents&Itemid=74; http://fra.europa.eu/en/publication/2010/rights-based-approach-hiv-european-union, http://www.hivjustice.net/oslo/oslo-declaration/).

Accordingly the Austrian Minister of Justice in 2010 on the occasion of the Vienna World Aids-Conference had assured that Austrian criminal law would not criminalize sexual acts in accordance with the safer sex rules and declared that the prosecutors would be informed to this effect (4941/AB, 2 June 2010, http://www.parlament.gv.at/PAKT/VHG/XXIV/AB/AB_04941/).

Double game played by the (Minister of) Justice?

Nevertheless last spring a 17 year old juvenile has been convicted for oral sex (without the allegation of ejaculation) with the judge even claiming that the use of a condom would not have made a difference (http://vorarlberg.orf.at/news/stories/2523707/). And now in Vienna the prosecutor is indicting a man explicitly even for oral sex without (!) ejaculation, behaviour explicitly propagated by the health authorities´ and the aids-service-associations´ (http://www.aids.at/alles-uber-hivaids/wie-kann-ich-mich-schutzen/; http://www.aidshilfen.at/sie-haben-fragen-wir-haben-antworten; https://www.gesundheit.gv.at/Portal.Node/ghp/public/content/Safer_Sex.html).

The trial takes place next Monday, 17 December 2012 in room 307 at the Vienna Regional Criminal Court, Wickenburggasse 22, 1080 Vienna. The trial is public. Revealing the defendant´s identity in the media is strictly prohibited (§§ 7 & 7a Media Act).

Members of federal parliament have tabled a parliamentary question to the Ministry of Justice concerning this incredible prosecution (13275/J, 6 December 2012, http://www.parlament.gv.at/PAKT/VHG/XXIV/J/J_13275/).

“The state must not criminalise HIV-positives for complying with the safer sex rules propagated by the same state“, says Dr. Helmut Graupner, president of Austria’s LGBT civil rights organisation Rechtskomitee LAMBDA (RKL) and counsel for the defendant, “This prosecution not only constitutes a serious human rights violation but also poses a considerable threat to public health.”

Video documentary on arrest, forced testing, prosecution of alleged female sex workers with HIV to be released in spring 2013, funding required

In early May 2012, a few days before the first round of national elections in Greece, the Greek police force published on its official website the mugshots of 26 people arrested under felony charges of threatening serious bodily harm. Several of them showed signs of drug abuse. Some were immigrants, most were native-born Greek citizens. But all of the people arrested and charged had two things in common: they were women and they were all HIV positive. These HIV positive women were arrested as part of a major police operation that saw almost 100 alleged female sex workers rounded up from the streets of central Athens and force-tested specifically for HIV.

A new video-documentary produced by a team of volunteer journalists from the Athens-based citizens journalism community of Radiobubble will attempt to address the issues raised in this case, issues that have been only superficially addressed and in some cases even skewed by most Greek media outlets. The video will be released in spring 2013 and will feature archive footage as well as interviews with medical and legal experts, activists, journalists, as well as with some of the major players in this ongoing drama.

A call to support action on the PLHIV Global Advocacy Agenda which includes advocating against HIV criminalisation, amongst many other pressing issues

We are people living with HIV. Over three decades into this epidemic, we are angry that still 4500 of us are dying of AIDS-related illnesses every day. Sixteen years after developing effective treatment, more than half of all of us who need it cannot access these life-saving drugs.

Lawyers petition government for protection to mark Human Rights Day | SW Radio Africa

The Zimbabwe Lawyers for Human Rights (ZLHR) marched from Harare Gardens through the streets of the capital on Thursday, to commemorate International Human Rights Day, which falls on December 10th. The lawyers delivered petitions to the Supreme Court, the High Court, Parliament, the Ministry of Justice and Legal Affairs and the Attorney General’s Office, asking for protection for legal practitioners while they do their work.  Makoni said the lawyers expect the level of intimidation and harassment of lawyers to increase as the country heads towards elections, because that is when violence levels go up and lawyers are called upon to represent victims and perpetrators.

US: Anti-criminalisation advocacy goes mainstream for World AIDS Day

World AIDS Day saw unprecedented media attention on advocacy against HIV criminalisation in the United States.

Following on from the flurry of media interest stemming from advocacy at the International AIDS Conference held in Washington DC this summer, including a major piece on CNN’s website, CNN’s Dr. Sanjay Gupta interviewed Nick Rhoades and Robert Suttle.

In case the video disappears in the future: here’s the transcript.

Coming up, when sex, even consensual sex becomes a crime. We’ll explain.

(COMMERCIAL BREAK)

GUPTA: This weekend marks World AIDS Day, and this weekend, we got some, what I would consider, extremely troubling news, perhaps surprising as well.

Listen to this closely: more than a quarter of all new HIV infections in this country are in 13 to 24-year-olds. And most of those young people don’t even know that they are infected.

Now, as you know, there’s always been secrecy around HIV/AIDS. But it also brings up a tough issue. More than half of the United States’ states have laws that make it a crime for people with HIV to not disclose it when they have sex. Now, some say that’s only fair, but others say making this crime not just scares people and keeps them from being tested or seeking care.

(BEGIN VIDEOTAPE)

GUPTA (voice-over): Four years ago, Nick Rhoades, an HIV positive, 34- year-old, living in Iowa, met a younger man. They hit it off, and had sex.

NICK RHOADES, CONVICTED OF CRIMINAL TRANSMISSION OF HIV: My viral load is undetectable. I wore a condom. I did everything I could to protect him and myself.

GUPTA: What Rhoades didn’t do was tell his friend about having HIV. And when the friend out later, he sought treatment at a local hospital. And the hospital employee called the police.

Rhodes was arrested, charged with criminal transmission of HIV and after pleading guilty on the advice of his lawyer, he was sentenced to 25 years in prison.

RHOADES: I served over a year locked up, some of it in maximum security and some of it in solitary confinement. And I still have to register as a sex offender for the rest of my life. GUPTA: Scott Schoettes, an the attorney for Lambda Legal, is Rhoades new lawyer. He is asking the Iowa Supreme Court to overturn Rhoades conviction.

SCOTT SCHOETTES, HIV PROJECT DIRECTOR, LAMBDA LEGAL: This case in particular was compelling, it really was a good example of the ways in which these laws are misused by the justice system to punish people in very severe ways for things that should not even be crimes.

GUPTA: About a thousand miles away in Louisiana, a similar case.

Robert Suttle said his partner knew Suttle had HIV, but after a messy break-up, his ex went to the police. Suttle was charged of intentionally exposing the man to the AIDS virus.

ROBERT SUTTLE, CONVICTED OF INTENTIONAL EXPOSURE TO AIDS VIRUS: I was arrested at work and I was booked.

GUPTA: To avoid a possible 10-year sentence, Suttle entered a plea. And he spent six months in jail.

Under the picture on his driver’s license in bold red capital letters, it says “sex offender”. He has to carry that tag for 15 years.

SUTTLE: There are a lot of good people in the world that are HIV positive, but that doesn’t mean that they are criminals. It doesn’t mean they have malicious intent to hurt anybody. They’re just trying to deal and cope with having this disease. And yet, there’s these laws that make us look like we’re criminals.

GUPTA: At least 34 states and two U.S. territories have laws that criminalize activities of people with HIV. Not disclosing your status to a sexual partner, that can land you in jail. So can spitting on somebody or biting them if you have the disease.

Often, it doesn’t matter if you actually transmit the virus. In fact, the man that slept with Rhoades never got HIV.

REP. BARBARA LEE (D), CALIFORNIA: Jail time is not warranted in these cases.

GUPTA: Last year, Congresswoman Barbara Lee introduced legislation to get rid of these state laws.

LEE: Many offenses receive a lesser sentence than the transmission of HIV. And these laws, again, they’re archaic. They’re wrong. They are unjust. And they need to be looked at and taken off of the books.

GUPTA: Prosecutor Scott Burns agrees that the laws need updating, but he also says repeal would be a mistake.

SCOTT BURNS, EXECUTIVE DIRECTOR, NATIONAL DISTRICT ATTORNEYS ASSOCIATION: Any time that someone knows they have HIV or AIDS doesn’t disclose that to the other party, I think, is wrong. I think there should be a sanction. I just don’t think you do that in America. And I think most prosecutors would agree with me. GUPTA: Rhoades and Suttle now work for the Sero Project. It’s a group that fights stigma and discrimination, trying to make the case that what happened to them should never happen to others.

SUTTLE: We cannot sit and ignore the fact that this is happening.

RHOADES: I have to fight for this, and I think there are a lot of people that are fighting, as well.

(END VIDEOTAPE)

GUPTA: Now, I should say the accuser in Nick’s case didn’t want to talk to us. And the identity of Robert’s accuser is sealed as well by court order.

In addition, a local Iowa TV station, KWWL, in the county where Nick Rhoades was prosecuted, led with this fantastic interview with Tami Haught from CHAIN (Community HIV/Hepatitis Advocates of Iowa Network), who is leading Iowa’s campaign to modernize the HIV criminalization law.

KWWL.com – News

Finally, yesterday saw the US National Dialogue on the Criminalization of HIV Transmission, Exposure and Non-disclosure: The role of the States and the Federal Government, on Capitol Hill in Washington DC. I’m sure there will be more written about this, but I’m including below a collection of all the tweets and images created live to give you an idea of the richness of the conversation, who was there, and who wasn’t. Thanks especially to Darby Hickey for summarising the dialogue so well.

Activists fight parts of Uganda's HIV/AIDS bill, including mandatory testing & disclosure plus a 'wilful transmission' statute, tabled for Jan 2013

According to Dr. Jeremiah Twa- Twa, chairperson HIV/AIDS sectoral committee, the HIV/AIDS prevention and control bill,  aimed at protecting people and creating a conducive legal environment for the implementation of HIV/AIDS programmes in Uganda, will be finalised before the end of the session, most likely in January next year.

However, the bill has thrown a cat among dogs, especially the civil society and AIDS activists who have rejected some of the proposed sections, saying they undermine many critical issues. Led by Uganda Network on Law, Ethics and HIV/AIDS (UGANET) and the National Forum of People Living with HIV/AIDS Network in Uganda (NAFOPHANU), the activists demand that some clauses be revised. They, however, say it is a good law with good intentions, but also warn that it may have devastating effects.

The joint civil society coalition, made up of more than 40 organisations, including human rights groups, has urged Parliament to review the clauses on mandatory testing of HIV, mandatory disclosure of a person’s HIV status and the criminalisation of intentional spread of the disease. The bill, calls for mandatory HIV testing of pregnant women and their partners during antenatal visits. Most men do not accompany their wives for antenatal visits and those who do so rarely accept to be tested for HIV. If the bill passes into law, all men who are responsible for a pregnancy may be compelled to test for HIV.

HIV/AIDS Rally: Iowans Speak Out Against 709-C

Since the 1990’s, Iowa Code 709-C has made failing to disclose your HIV status a class “B” felony, punishable by up to 25 years in prison. It’s a law that HIV and AIDS advocates hope legislators change in 2013. Laura Friest has lived with HIV for more than 13 years.

Nashua woman wants Iowa's HIV law repealed, says it's discriminatory

A Nashua woman wants Iowa’s HIV law repealed because she says it’s discriminatory. Tami Haught is part of the group “CHAIN” (Community HIV/Hepatitis Advocates of Iowa Network). The group’s goal is to repeal 709c, a state law relating to the criminal transmission of Human Immunodeficiency Virus (HIV).

AIDS ACTION NOW! asks gay men and other MSM not to press charges for alleged HIV non-disclosure

Last night AIDS ACTION NOW! launched phase 2 of our Think Twice Campaign against the criminalization of people living with HIV. We were at the Art Gallery of Ontario for the launch of poster/VIRUS 2012, to celebrate and commemorate a Day Without Art. Our target audience for phase 2: Men who fuck men.

Gay press coverage of Phase Two of 'Think Twice' campaign from AIDS ACTION NOW!

Call it an inspiring history lesson. The night started with a screening of a historical documentary but ended with a panel discussion calling for action on the contentious issue of HIV criminalization.