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.”

Local Ontario paper's sympathetic coverage of impact of Canada's HIV non-disclosure prosecutions

It took Mary 15 years before she could tell her children she’s HIV-positive. “How do you disclose it to those you really love?” said The AIDS Network speaker. “When you’re in a sexual relationship, how are you going to disclose it? It’s so deep and there are so many layers.” She and others expressed alarm at Canada’s HIV non-disclosure law during a panel discussion at Central Library last Thursday (Nov. 29). The film Positive Women: Exposing Injustice was screened at the AIDS Action Halton event, held to recognize World AIDS Day (Dec. 1).

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.

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.

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.

Report from Positive Women's Network forum on HIV criminalisation in Philadelphia

Laws in many states criminalize those with HIV/AIDS who fail to disclose their status to their partners. This was the message of a prograFm by the U.S. Positive Women’s Network held recently at the William Way Community Center in Center City.

Positive Women's Network Philadelphia chapter host Positive Justice Project community roundtable

On Monday, November 19th, 2012 the Positive Women’s Network — Philadelphia Chapter hosted a Positive Justice Project Community Roundtable on HIV Criminalization at the William Way Community Center in Philadelphia, PA from 3 to 6:30 pm.

The new HIV Justice Network website launches today

Today marks an important step forward in global advocacy towards a fairer, just, rational, proportionate and limited use of laws and prosecutions for HIV non-disclosure, potential or perceived exposure and transmission.

The new HIV Justice Network website is intended to be a global information and advocacy hub for individuals and organisations working to end the inappropriate use of the criminal law to regulate and punish people living with HIV. Here you will find the latest news and cases, searchable by date, country, and case type, plus all kinds of advocacy resources (including video). The information on the website is also classified by 25 topics, under six headings: Advocacy; Alternatives; Impact; Law Enforcement; Laws and Policies; and Science.

Hopefully this will make it easier to find the information you need for your work, whether it be research into the impacts of HIV criminalisation; advocacy to prevent, reform, repeal or modernise existing HIV-specific criminal statutes or to limit the use of the law through prosecutorial and police guidance; or in promoting alternatives such as a supportive legal and policy environment via a human rights framework; restorative justice via a criminal justice framework; or Positive Health, Dignity and Prevention via a public health framework.

At the same time, we will also be launching the HIV Justice newsletter. As well as including the latest international news and analysis relating to cases, laws, policy and advocacy, it is an opportunity to promote the work of advocates and researchers, such as highlighting upcoming events and new resources. If you have already signed up for it via the Homepage, or supported the Oslo Declaration on HIV Criminalisation, you are already subscribed. If not, you can sign-up here.

The new HIV Justice Network website incorporates all the posts from my blog, Criminal HIV Transmission, which I began in 2007. Little did I know at the time that it would become an important global resource, filling a much-needed gap by capturing what is happening in real time. It was only when I attended AIDS 2008 in Mexico City, and discovered how many people knew of me and my work, that I realised how useful a resource it had become for advocates, researchers, lawyers and others from all over the world.

Knowing that the blog served as an international information and advocacy hub placed enormous pressure on my time and personal resources. Until the beginning of 2012, the blog and its associated advocacy work received no funding – save the few wonderful individuals who donated via Paypal and a small grant from IPPF (thank you!). So I’m very grateful to The Monument Trust for its generous support which has allowed me to sustain, develop and expand the blog into the HIV Justice Network. I’d also like to thank Kieran McCann and Thomas Paterson from NAM, who designed and developed the site, as well as NAM’s Executive Director, Caspar Thompson, for his support and guidance.

This past year hasn’t only been about developing the new website and newsletter, however. In February, the HIV Justice Network co-organised the civil society caucus meeting that created the Oslo Declaration on HIV Criminalisation. The Oslo Declaration, hosted on the HIV Justice Network website, has become a potent global advocacy tool. And with more than 1600 supporters from more than 110 countries around the world, it has helped to galvanise a global movement advocating against the inappropriate use of the criminal law to regulate and punish people living with HIV.

In July, the HIV Justice Network was very active prior to AIDS 2012 in Washington DC. We held an HIV criminalisation caucus meeting just before the main conference, attended by 36 smart and experienced advocates from 16 countries; co-ordinated a seminar at the MSMGF pre-meeting; and attended both the Positive Justice Project convening and LIVING 2012.

During the conference itself, we presented data in several sessions and satellites, co-organised a press conference, and hosted a panel featuring three courageous individuals who had previously been involved in criminal cases and who are now passionate advocates against the use the inappropriate use of the criminal law to regulate and punish people living with HIV. You can watch most of these sessions in the Video section of the new website.

Our biggest project to date was working with our video advocacy consultant, Nick Feustel, to produce the 30 minute advocacy and educational video, Doing HIV Justice: Clarifying criminal law and policy through prosecutorial guidance, which had its premiere at AIDS 2012.

The video demystifies the process of how civil society worked with the Crown Prosecution Service of England & Wales to create the world’s first policy and guidance for prosecuting the reckless or intentional transmission of sexual infection. It explains how the guidance was developed, what challenges the key stakeholders faced and overcame, and what benefits have resulted – fewer miscarriages of justice and a better understanding of HIV throughout the entire criminal justice system.

As well as thanking the three interviewees – Lisa Power, Policy Director, Terrence Higgins Trust; Yusef Azad, Director of Policy and Campaigns, NAT; and Arwel Jones, Head of the Law & Procedure Unit, Crown Prosecution Service Strategy & Policy Directorate – we’d also like to gratefully acknowledge the financial contribution of UNAIDS.

Doing HIV Justice had its European debut at the one-day seminar on HIV Criminalisation that the HIV Justice Network co-ordinated on behalf of Deutsche AIDS-Hilfe, EATG, IPPF and the HIV in Europe initiative. The meeting was an opportunity to build on the momentum of advocacy from AIDS 2012 and create a more cohesive pan-European (and Central Asian) movement against laws, policies and practices that inappropriately criminalise people living with HIV.

As the HIV Justice Network moves forward we hope to continue to inform, support and connect individuals and organisations – activists, networks of people living with HIV, lawyers, researchers, clinicians, civil society organisations, and multilateral and UN agencies – in their work to end inappropriate prosecutions of people living with HIV.

Please let us know via the Contact Us form what you like (or don’t like) about the new site; how you use it in your work; and what we can do improve. And, of course, if are working to end inappropriate laws and prosecutions and have news, information or resources to share, we’d also like to hear from you.

Here’s to a whole new chapter in the global movement towards a more tolerant and supportive environment for people living with HIV, so that we can live long, healthy, empowered, dignified lives – surely a better and more effective way to prevent new infections than a punitive, disabling environment inherent in a criminal justice system approach.

In solidarity,

Edwin J Bernard

Co-ordinator, HIV Justice Network

HIV Disclosure and Criminalization Take Center Stage at PACHA Meeting

Voluntary disclosure, HIV criminalization and implementation of the National HIV/AIDS Strategy were the hot topics at the convening of the 48th Presidential Advisory Council on HIV/AIDS (PACHA) in Washington, D.C., last week. Other topics of the two-day meeting, which was presided over by chair Nancy Mahon of the MAC AIDS Fund, included the Affordable Care Act and reauthorization of the Ryan White CARE Act.

Kenya: HIV, Law and Human Rights symposium calls for repeal of Aids Control Act (Section 24)

The inaugural national symposium on HIV, Law and Human Rights opened on Tuesday in Nairobi with calls on the Government to repeal the law which criminalises infecting a person who did not have the virus
HIV Equity Tribunal chairman Ambrose Rachier termed the Aids Control Act (Section 24) “counter-productive”, saying it will make people shun HIV testing
According to the law, Mr Rachier said those who wilfully infected others with HIV faced “stiff penalties” of up to seven years in jail