Canada: Johnson Aziga and questions about the virological evidence

Here’s an excellent piece analysing flaws in the recent Johnson Aziga trial by Chris Morley, HIV Policy, Information and Publications Coordinator at George House Trust in Manchester, England. He writes this in a personal capacity.

He has had first-hand experience with some UK criminal HIV transmission cases, and contributed significantly to the HIV Forensics chapter of my book. He originally wrote this as a comment on my posting about the scientific evidence in the trial, but I thought it deserved a posting in its own right. He’s also written about the trial on the GHT website.

Johnson Aziga and questions about the virological evidence
by Chris Morley

Call a virologist

The defence lawyers failed to follow a key lesson from some recent English cases – which is to call a virologist, expert in HIV, as an expert witness, or at the very least commission an expert HIV virologist’s report to use as evidence.

Because the state called Dr Paul Sandstrom, director of the Public Health Agency of Canada’s national HIV and retrovirology laboratories as its scientific witness, there was a critical need to have an internationally respected independent expert HIV virologist giving evidence for the defence.

In well represented recent English cases, some level of expert HIV virologist involvement has led to a not guilty verdict, acquittal, case dismissed, and cases being abandoned. It makes a crucial difference to the outcome. It may not always cast enough reasonable doubt on all prosecution claims, but the English experience so far is all of prosecution failures where this is used, and usually of prosecution successes when it isn’t used.

From my reading of reports about the scientific evidence an expert virologist would have been able to question, or even demolish the assumptions and conclusions put forward by the prosecution.

Here’s the report, from The Hamilton Spectator, of the testimony of Dr Sandstrom:

“We were able to determine that all of the complainants and Aziga had a phylogenetically distinct form of HIV and that Mr. Aziga had the virus prior to contact with any of the women,” Sandstrom said. …..

Aziga and the women in the Hamilton infection cluster all had Clade A, which is rare in North America but endemic in Aziga’s native Uganda.

In this country, fewer than 2 per cent of those newly diagnosed with HIV have subtype A.

Phylogenetic analysis examines small differences in HIV genes by coding sequences of the HIV genome and comparing them to other HIV sequences in public databases.

HIV virologists can only determine the degree of similarity between two samples. They can’t produce a definitive match because unlike human DNA, HIV is not unique to an individual.

The analysis is also unable to determine the direction of transmission, Sandstrom said. So, theoretically, one of the women could have infected Aziga, instead of the other way around.

To resolve that issue, Sandstrom obtained a frozen blood-plasma sample drawn from Aziga after his HIV diagnosis 12 years ago. The specimen — collected before Aziga met any of the women — was phylogenetically analyzed and found to be nearly identical to the Hamilton infection cluster, comprising Aziga and the seven HIV-positive women.

“It means Mr. Aziga did not become infected by any of the women and that he had already been infected prior to contact with any of the women,” Sandstrom said.

No Proof

This does not fully address or prove transmission from Johnson Aziga at all – other explanations are at least a possibility, and need to be ruled out. Mr Aziga and the women complainants are not the only people in Canada with subtype A – there are over 1000 other people diagnosed with it and more who are undiagnosed. One or more of the others with HIV-A might have been the source of one or more women’s HIV.

Sandstrom did not consider it part of his job to explore this, or try to exclude this as a possibility. As the leading state HIV virologist he had a professional obligation to attempt to resolve this uncertainty and present the full picture. It would either have strengthened or weakened the prosecution case. Either way it needed checking.

Not my job to check

He was cross examined about this by the defence who argued that although Aziga and the women share a related virus, that did not mean that other persons, still unknown, might not also be carriers and part of the same transmission network. “It still remains, that your investigation does not rule out the possibility that there are other people ‘out there’ who are a part of the same infection cluster,” suggested the lawyer. Sandstrom said his investigation was “not directed at finding additional complainants or additional suspects,” but at providing confirmatory evidence for the footwork done by Hamilton police.

And the police, under cross examination, said it wasn’t their job either, to look for other possible sources of the women’s HIV.

Miscarriage of Justice and reversed burden of proof

This leaves me with serious concerns that there has been a miscarriage of justice. The defence is left to carry out an investigation, without police powers or resources, requiring the taking and testing of blood samples and complex and expensive scientific analysis, in an attempt to show there are other credible explanations. Does this not unfairly reverse the legal burden of proof?

Sexual history of complainants must be a central part of all transmission investigations

With HIV transmission cases, the proper police investigative practice of not looking into a rape complainant’s own sexual history, is often adopted. A woman’s sexual history is irrelevant to whether she was forced to have sex by someone; however it is critical to establishing which of her partners might have been the source of HIV in a consensual encounter. To attempt to prove X did it, you have to at least rule out A, B, C etc. And this at least can be proved conclusively with virology (HIV virology can prove someone didn’t transmit that HIV, but it can’t prove who did).

Rarely are the circumstances such that a complainat can be absolutely sure which of several partners might have been the source. The police are used to checking statements and seeking corroboration for everything. Why are claims about who transmitted HIV treated as if they cannot and must not be questionned? Why don’t the police routinely seek, and prosecutors demand, corroboration by ruling out all other possibilities?

For example, one of the women who died (H.C.) had three previous partners in recent years, two of whom were also migrants from Africa and, if HIV positive, likely also to have HIV-A. And an earlier date of infection from one of these men would better explain her surprisingly rapid development and death from Burkitt’s lymphoma, all apparently within 3 years or so of her supposed infection by him. (Reported here based on reports in The Hamilton Spectator )
And regarding the other women, see for example this article in The Hamilton Spectator.

Reasonable doubt opportunity wasted

With prosecution and defence expert witnesses contradicting each other, reasonable doubt would be raised far more strongly. Instead of calling an expert in HIV virology, the defence called Rafal Kustra, an associate professor of biostatistics with the Dalla Lana School of Public Health at the University of Toronto. He was not able to make much of an impact, saying he was “underwhelmed” by the level of analysis used by Ottawa scientists who concluded that Johnson Aziga and seven HIV- positive women carry viruses that are so closely related they can be described as a single “Hamilton transmission cluster.” He criticised the method used by Sandstrom and that was about it. He didn’t produce any new evidence, and wasn’t even invited by the defence to offer a different interpretation of the same facts, or say what further evidence was needed, and which questions need to be answered, before the prosecution’s case can become credible scientifically.

The defence barrister did criticise the prosecution’s scientific claims and failure to eliminate other potential sources of HIV. This does not carry any real weight with judge and jury – in legal terms it is not evidence, more an argument. The defence lawyer is not a scientific expert who can credibly contradict Canada’s head of HIV virology, no matter how right he may be. He tried, but didn’t call an expert virologist as a witness who could have made the argument convincing with fresh evidence and interpretation based on professional expertise.

An independent expert virologist might have been able to show, for one or more of the infected, scientific reasons why the prosecution are drawing the wrong conclusions and missing out vital evidence.

Establishing reasonable doubt is the job of the defence. Succeed, and the judge would then have pointed this out to the jury. The judge’s response to reasonable doubts should lead to a not guilty verdict, or acquittal, on one or more of the charges.

Not guilty verdicts and acquittals might not have produced justice, but there doesn’t seem to be much certainty of justice in this verdict, from what I have seen reported.

No-one knows for a scientific fact whether or not he did transmit HIV to the 7 people whom the prosecution claim he infected. This can never be proved with current scientific techniques. The essential virological analyses and testing of other partners, that might have shown the virological connections between the HIV samples could have more than one credible explanation, seem to have been omitted.

The apparent failure to eliminate from suspicion the women’s other / previous partners raises serious doubts about any scientific claims made that he was the source, because those claims seem based on only some of the potential scientific evidence.

Herd mentality

A herd mentality can develop in big trials and high profile cases. The pressures to secure a conviction are huge. In cases involving HIV transmission, some of the media behave like a baying mob. Police and prosecutors may become convinced they have their man and be unable to entertain any other possibility. We’ve much experience of this in England and this case has the hallmarks of another, but in Canada.

Dysfunctional justice?

It’s a case that shines a light on the Canadian justice performing badly in a major trial. It seems there are errors as much in the prosecution, police investigation and justice procedures, as well as tactical mistakes by the defence. He’s been five years in prison awaiting trial and this was his 6th team of lawyers. This case makes the Canadian justice system look dysfunctional. I hope it redeems itself at the appeal stage.

Uganda: Article examines why HIV/AIDS Prevention and Control Bill is flawed

An excellent article from Andrew Bahemuka, policy advocacy officer of the Uganda Women’s Network, summarises all of the arguments against HIV-specific criminal HIV transmission legislation, published today in New Vision.

Criminalising HIV/AIDS: Not a win-win situation
Publication date: Wednesday, 15th April, 2009
By Andrew Bahemuka

AFTER nearly 30 years of addressing the HIV/AIDS pandemic, Uganda has reinforced the importance of breaking the silence around the epidemic, talking openly about HIV, and encouraging people to live positively.

Presently the Government seeks to complement the existing policy framework on HIV/AIDS with an overarching legal response.
The Government’s push to come up with the HIV/AIDS Prevention and Control Bill, 2008 is driven by the wish to respond to serious concerns about the ongoing rapid spread of HIV/AIDS in the country; coupled by what is perceived to be a failure of existing HIV prevention efforts.

However, applying criminal law to HIV exposure or transmission, except in very limited circumstances, does the opposite. It reinforces the stereotype that people living with HIV are immoral and dangerous criminals, rather than, like everyone else, people endowed with responsibility, dignity and human rights.

In some countries, which have passed the law, women have been prosecuted for mother-to-child transmission (PMTCT) of HIV. This is particularly outrageous when globally prevention of mother-to-child transmission coverage is only at 33%.

In resource poor settings, criminalisation is likely to put the blame solely on the woman for transmission that she may be unable to prevent due to dismally poor PMTCT coverage.

Criminalising HIV transmission does nothing to address the real problem which is women’s overall lack of power in society. Women often learn they are HIV positive before their male partners because they are more likely to access health services and thus are blamed for bringing the HIV virus into the relationship, according to a UNAIDS report.

Criminalisation therefore, is unlikely to prevent new infections or reduce women’s vulnerability to HIV. Criminalisation may harm women rather than assist them, and negatively impact both on public health and human rights.

Criminalising HIV exposure or transmission is generally an unjust and ineffective public policy. The obvious exception involves cases where individuals purposely or maliciously transmit HIV with the intent to harm others. Article 13 in particular provides for compulsory testing of targeted groups (drug abusers, sexual offenders and commercial sex workers) contrary to the international guidelines on HIV/AIDS and human rights.

The targeted groups are predominantly vulnerable and marginalised categories who should, in fact, be subjects of protection by the state. In these cases, existing criminal laws can and should be used rather than passing HIV-specific laws.

In addition, the Government should effectively prosecute all cases of sexual violence and ensure that rape in marriage is recognised as a crime. This is unlikely to happen soon with the Government’s delay in passing the Domestic Relations Bill, the Sexual Offences Bill and the Domestic Violence Bill.

Criminalisation of HIV immediately invokes stigma, discrimination and a disincentive for voluntary testing, and access to care and treatment. Save for a few cases, most people who transmit HIV either do so not knowing they are infected and not knowing they are transmitting HIV, or because they fear to reveal their HIV status.

Examples include women in abusive relationships who may fear to disclose their status for fear of the repercussions. Even in these cases, however, the creation of HIV-specific offences is generally not warranted, as existing criminal laws are sufficient to punish individuals who specifically intend to transmit HIV to others.

For example, laws against causing bodily harm can be applied to HIV transmission. Even under criminal law, caution has to be taken where there was no significant risk of HIV transmission or where a person:

-Did not know that he or she was HIV-positive
-Disclosed his or her HIV-positive status to the person at risk (or had reason to believe the other person was aware of his status)

-Did not disclose his or her HIV-positive status because of fear of violence or other consequences.

-Took risk-reducing measures (such as practising safer sex through using a condom or other precautions), or

-Previously agreed on a level of mutually acceptable risk with the other person.
In view of the above, HIV/AIDS specific legislation is not a necessity and should not be encouraged. The Government should focus on empowering people living with HIV to seek HIV testing, disclose their status, and practise safer sex without fear of stigma and discrimination.

The Government could aim at empowering HIV-positive persons by enacting and enforcing anti-discrimination laws and promoting social campaigns to reduce stigma. In order to slow down the spread of the HIV epidemic, vast numbers of people would have to be prevented from having unsafe sex, sharing syringes, or engaging in other risky behaviour, which no HIV-specific criminal law could possibly do.

HIV risk behaviour is prevalent in prisons, and most prison systems continue to reject introduction of evidence-informed prevention measures such as condoms and sterile injecting equipment and fail to undertake measures to reduce the prevalence of rape and other forms of sexual violence.

There is need therefore, for the Government to consult widely with the different stakeholders to make the current bill, human rights responsive. That is when we shall consolidate the gains the country has made in the HIV/AIDS struggle.

Kenya: Opinion piece criticising AIDS Control Act

Aids Control Act ‘a mere shell’
By COLLINS OMONDI
Monday, March 30 2009 at 19:16
Daily Nation

In Summary

  • Special Programmes minister has left out some key provisions of the Act which are at the core of fighting stigma
  • Lack of consent for testing for HIV and unlawful disclosure of HIV test results fuels stigma and discrimination.

MONDAY WAS THE commencement date for the HIV and Aids Prevention and Control Act 2006.

It is, however, disappointing that the Special Programmes minister has left out some key provisions of the Act which are at the core of fighting stigma and protecting the human rights of people living with Aids.

There is absolutely no justification for subjecting sections 14, 18 and 22 relating to consent for HIV testing and confidentiality of HIV test results to delays.

Undeniably, there exists inextricable links between stigma and discrimination against people living with Aids and violations of privacy and confidentiality to which these sections relate.

Lack of consent for testing for HIV and unlawful disclosure of HIV test results fuels stigma and discrimination. This leads to social and economic suffering for those affected.

Also, the explicit requirement under section 39 to conform to the legal framework governing the conduct of biomedical research does not apply, at least for the time being, though researchers have frequently been blamed for violating rights of people with Aids.

The non-implementation of these sections robs the Act of its raison d’être and jeopardises the effectiveness of provisions on privacy and confidentiality and non-discrimination thus exposing these people to the risk of continued violation of their rights.

It also creates the impression that certain requirements as to consent for testing and confidentiality and biomedical research do not apply as a matter of law for the time being, leading to legal uncertainty and confusion.

As it is, the Act is a mere shell. Needless to say, these sections were not as controversial as certain sections which have been implemented such as section 24 on criminalisation of wilful HIV infection.

Further, assuming there exists issues of concern under certain sections, say consent for HIV testing by “mature minors”, such issues are not so fatal that they should rob the Act of its raison d’être.

Such inevitable issues in any law-making process are easily addressed through amendments in Parliament, as this is the only institution with the legal mandate to change that which it passed into law, or through regulations made pursuant to the Act.

The minister’s action, although it may be guided by a genuine desire to address certain concerns, is wholly ill-advised and is not supported by reasons the government has been giving for the inordinate delay in implementing the Act.

For instance, the 2008 Kenya Country Progress Report to the United Nations General Assembly Session on HIV and Aids cited the need for amendments to the Act to include marginalised groups and other emerging issues.

To what extent the non-implementation of these sections is affected by these concerns remains unclear.

Going by the history of the Act, one can only pray that these provisions are brought into force immediately and that whatever issues that led to the sections being put in abeyance are addressed.

Mr Omondi, a lawyer, is the HIV and human rights project coordinator at the Children’s Legal Action Network (CLAN).

UK: Report shows police mishandling of investigations into alleged criminal HIV transmission

Below are the opening paragraphs of a news story I wrote for aidsmap about a new THT report about how the police in England are handling investigations into criminal HIV transmission.

The full report, Policing Transmission, can be downloaded from THT.

 

A new report by the Terrence Higgins Trust (THT) launched [on January 27th] at the House of Commons has revealed a systematic mishandling of complaints for alleged criminal HIV transmission in England & Wales. The report, Policing Transmission was welcomed by the Association of Chief Police Officers (ACPO), which acknowledged that “too many times we have got it wrong”.

There have been “scores, if not hundreds” of arrests since the first conviction for reckless HIV transmission in England and Wales, that of Mohammed Dica in October 2003, noted THT’s Sir Nick Partridge speaking at the launch of the report in the House of Commons, hosted by Lord Norman Fowler, Vice Chair of the All Party Parliamentary Group on AIDS.

Sir Nick said that whilst most police investigations had been dropped due to a lack of evidence, during the course of these ‘failed’ investigations – which had lasted up to a year – “lives had been turned upside-down and some came close to being destroyed”.

During the period 2005-6, there was an average of one arrest every two weeks. Concerned at this number of arrests and aware of the cost, in terms of “public resources and private misery”, THT approached ACPO and the Metropolitan Police Service (MPS) in order to examine the role of the police in criminal HIV transmission investigations.

Read more here.

Norway: HIV advocates call for repeal of HIV criminalisation law

A group of Norweigian advocates known as HIV Manifesto are calling for the Norwegian government to repeal Section 155 of the Norwegian penal code, a 1902 infectious disease law that has only ever been used to criminalise HIV transmission.

The campaign has been picked up by Canada’s gay newspaper, Xtra – the report is below.

Full information about the HIV Manfesto campaign, which is supported by the IAS and IAPAC, amongst others, is available in English here and Norwegian here.

Norwegian activists call for repeal of HIV law
HIV CRIMINALIZATION / Century-old law works against prevention, they say
Krishna Rau / National / Thursday, January 22, 2009

Activists in Norway are calling for the repeal of a 1902 law on infectious diseases they say is being used to attack people with HIV.

Section 155 of the Norwegian penal code states that, “Any person who, having sufficient cause to believe that he is a bearer of a generally contagious disease, willfully or negligently infects or exposes another person to the risk of infection shall be liable to imprisonment for a term not exceeding six years if the offence is committed willfully and to imprisonment for a term not exceeding three years if the offence is committed negligently.”

The section goes on to state that, “Any person who aids and abets such an offence shall be liable to the same penalty. If the aggrieved person is one of the offender’s next-of-kin, a public prosecution shall be instituted only at the request of the aggrieved person unless it is required in the public interest.”

The group HIV Manifesto is calling for the Norwegian government to remove the section.

Its manifesto states, “This legal paragraph was introduced in 1902 in order to protect the society from the public threat of infectious diseases. However it has only been applied in cases involving HIV, and is often referred to as the
‘HIV paragraph.’

“It has never been documented that Section 155 prevents HIV transmission. On the contrary there are reasons to believe that it imposes several negative consequences for both individuals and society.”

HIV Manifesto claims the law actually works against HIV prevention.

“The paragraph produces a false safety for HIV-negatives, who assume that HIV-positives have and will show the full responsibility to avoid HIV transmission; hence it contributes to deteriorating use of safer sex,” states the group. “The law makes some people think it is better not to test for HIV, to avoid the risk of being punished by this law.”

“The law takes the attention away from the real challenges, in particularly the psychosocial ones. The risk of being punished also makes some people reluctant to inform about their sexual partners, and hence the paragraph can inhibit the determination of the transmission source. The paragraph undermines more efficient actions to prevent HIV transmission.”

Editorial: “Criminalising HIV carriers is counterintuitive”

After the Xmas and New Year break, I have something of a backlog of reports which I will be filing over the next few weeks under their published dates (rather than the actual day I write them up).

Although this report, from The Tapei Times, was published a month ago, it has some news currency, since the author, Justice Edwin Cameron, of the South African Supreme Court of Appeal, has this week been appointed by South Africa’s President Kgalema Motlanthe to join the Constitutional Court – the highest court in the land.

His achievement reflects well on everyone who is gay and/or HIV-positive and who also battles for social and ethical justice; he truly is an inspiration.

Congratulations, Edwin!

Criminalizing HIV carriers is counterintuitive
By Edwin Cameron
Taipei Times
Monday, Dec 08, 2008

“If the law supposes that,” Mr Bumble says in Charles Dickens’ novel Oliver Twist, “the law is an ass.” A criminal law that makes it preferable for carriers of HIV not to know that they are infected and capable of spreading it to others, including their loved ones, seems particularly suited to Mr Bumble’s condemnation.

Yet tragically, in a misguided attempt to thwart the spread of HIV and AIDS, lawmakers in many parts of the world have passed criminal statues that promote ignorance about the disease, punish its victims and enhance the chances that the virus will infect new victims. Some countries in Western and Central Africa are enacting poorly drafted policies based on the African Model Law, which makes it a criminal offense for any person infected by the virus to transmit it to someone else or to expose another person to it. In some jurisdictions, prosecutors can bring charges against pregnant women who are HIV-positive for potentially exposing the virus to their unborn children.

There are, to be sure, rare and dramatic cases in which a person with HIV infects another with the specific intention of inflicting harm. It is a reality that men infected with HIV or AIDS in some parts of Africa have even raped girls believing that sex with virgins is a cure. And some women’s rights advocates have supported laws that criminalize transmitting HIV, arguing that these laws would punish men who concealed their HIV-positive status from their sexual partners, including their wives and girlfriends. But existing criminal laws are more than adequate to allow willing justice systems to mete out appropriate sanctions against people who intend harm.

Criminal laws targeting all HIV carriers, however, are counter-productive and inherently unjust. These laws effectively make criminals out of millions of the disease’s innocent victims, especially its women victims.

In Zimbabwe, for example, a woman was recently sentenced for exposing her lover to HIV even though she did not infect him. In Ukraine, human-rights lawyers report the troubling case of a woman who was convicted for transmitting HIV to her husband even though he had used a condom, and despite the fact that he asked for the charges to be withdrawn.

Gender bias against women permeates throughout Africa, and women are usually blamed for bringing HIV into a relationship. This popular misconception springs, at least in part, from the fact that women are more likely to know their HIV status because they are routinely tested for HIV at maternity clinics when they seek pregnancy tests or examinations.

Most men on the other hand — deterred by fear, ignorance, pride and, sometimes, taboo — refuse to be tested voluntarily. This skews the outcomes of legal cases because the lack of testing of men makes it nearly impossible for a woman infected with HIV to establish before a court of law that her male sex partner infected her.

Laws criminalizing the transmission of HIV undermine public health because they deter people who are HIV-positive and those at risk of acquiring the virus from seeking testing, counseling, and treatment. When persons face the possibility of criminal sanctions, not knowing their HIV status can be their most-effective legal defense. Prosecutions will act to deter many people — especially men as well as persons living in areas where HIV treatment is largely unavailable — from being tested because it would expose them to the risk of criminal liability.

Such laws also transform HIV victims into scapegoats for a societal problem for which the governments and broader societies are failing to undertake effective, and sometimes politically or culturally risky, steps that can defeat the disease. Sadly, these “risky” steps include things as rudimentary as open discussion of the disease, education and encouraging people, and especially men, to undergo testing.

AIDS has claimed more than 25 million lives since medical scientists first identified it in 1981. New infections continue to outpace treatment efforts. Basic precautionary options such as HIV testing, male and female condoms, and sterile syringes for drug injection remain out of reach for the vast majority of those who need them.

This woeful situation demands effective action and not more victims and scapegoats.

Open, informed discussion of the HIV epidemic, education into HIV prevention, distribution of condoms, and other strategies are the only known way of preventing new infections. The vulnerability of women to HIV should be addressed by protecting their equal right to marital property, enforcing laws against gender-based violence, including rape in marriage, and empowering them to negotiate safer sex with men.

Canada: Article exposes Canada’s Kafkaesque HIV laws

Criminal HIV exposure prosecutions are reaching Kafkaesque levels in Canada, as this report from Canada’s national gay newspaper, Xtra.ca, makes clear.

In the wake of the trial of Johnson Aziga – which continues after an Xmas and New Year break on Monday 12th January – Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Network is now concerned that Canada may begin to prosecute the 80+ individuals previously convicted of HIV exposure for murder following the deaths of their sexual partners years down the line.

The law in Canada is such an ass – and open to potential cases of blackmail and revenge – that another expert, Ryan Peck, the executive director of the HIV/AIDS Legal Clinic (Ontario) (HALCO), recommends that the HIV-positive partner asks their HIV-negative partner to sign a disclosure form before any sex.

 

The law cracks down on HIV

Murder charges are now on the table in Canada

Krishna Rau / Toronto / Friday, January 02, 2009

The growing criminalization of HIV could mean increasingly harsh treatment for those convicted of spreading the virus. Tim McCaskell, the cofounder of AIDS Action Now, says the current first-degree murder trial of Johnson Aziga — a Hamilton man charged in the deaths of two women after infecting them following consensual sex — could be an alarming precedent.

“When you develop a social zeitgeist that the solution to crime is jails and penalties and punishment then that’s how you treat an epidemic as well,” says McCaskell. “It seems to me that the fact that he’s been charged with murder is more about sensationalism and upping the ante than it is about even getting a conviction. “But if you do get a conviction on that we’re really in trouble.”

The case against Aziga is the first in Canada involving a murder charge, says Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Network. He says there have been a few previous attempted murder charges, but the circumstances were vastly different. “There was clearly assaultive behaviour, biting, spitting,” Elliott says. “It’s not been a case of consensual sex. It’s been cases where they say, ‘I hope you die,’ as they throw blood or something. This [consensual sex] is completely different unless you have a lunatic who’s deliberately trying to kill people by infecting them by having sex.”

Elliott says a conviction in the Aziga case could lead to murder charges years after someone was infected through consensual sex. “It’s possible, if the person to date has not been charged with murder, but has been convicted of aggravated sexual assault which has been the predominant charge, and then 10 years later the infected person dies.”

Elliott says he’s more worried about the possibility of charges being laid against people who infect a sexual partner without even knowing their status. He refers to a 2003 case from Newfoundland in which a couple had unprotected sex before the man tested positive. He did not disclose his status and they continued to have unprotected sex. The man was only convicted of attempted aggravated sexual assault because it couldn’t be proved that the woman was infected after his test. The case ended up in the Supreme Court of Canada.

“The Supreme Court said, ‘You might be reckless if you have reason to believe you might be infected and don’t disclose the fact,’” says Elliott. “It certainly opens the door to a case where prosecutors could argue someone was reckless if there are circumstances in which a person should have known — if they were called by a past contact or by Public Health.”

Elliott says a man in Switzerland was convicted of grievous bodily harm after he was told by a previous partner that she was HIV-positive. The man did not get tested and then infected another woman.

“You have to get into drawing lines,” says Elliott. “When should you have known? It starts to get absurd if you go down the line.”

But even if someone did disclose their positive status, they might not be believed if their infected partner denies disclosure took place.

“There is a concern that these he said/he said cases will result in convictions due to the pervasive stigma and discrimination facing people living with HIV/AIDS,” writes Ryan Peck, the executive director of the HIV/AIDS Legal Clinic (Ontario) (HALCO), in an email.

Elliott cites a case in Montreal involving an HIV-positive woman who allegedly did not disclose her status as an example of the legal discrimination faced by HIV-positive people.

“That case seems to have involved a physically abusive relationship in which he was charged with assaulting her,” he says. “The advocates claim that was used to lessen the sentence given to him.”

Peck states that the situation is so treacherous that HALCO is providing possible strategies for disclosure. He suggests HIV-positive people consider disclosing their status in front of friendly witnesses or a counsellor or support worker who’s taking notes. He also suggests double-checking.

“Have a friend ask the sex partner if they know about your status,” he writes. “If disclosure takes place online, make sure it is done clearly, i.e. not using code words. The sex partner should acknowledge the disclosure, and a copy should be saved and printed.”

Peck suggests that having a sex partner sign an acknowledgment would be legally ideal but unlikely.

“Get your sex partner to sign a document before sex that says that he knows you are HIV-positive and that he knows what it means,” Peck writes. “The document should include the date and the partner’s name and signature. This is a good way for you to protect yourself. But it is also the most unrealistic strategy.”

Kenya: Unease over new HIV transmission law

IRIN/PlusNews has published an interesting article analysing the potential impact of Kenya’s new criminal HIV transmission law, which was passed in 2006 but has yet to be impemented.

KENYA: Unease over new HIV transmission law

NAIROBI, 12 December 2008 (PlusNews) – In June 2006, a young woman in western Kenya died of HIV-related complications and left a list of about 100 people that she said she had infected with HIV. A new law, approved by the Kenyan president but yet to be implemented, is hoping to prevent wilful transmission.

The HIV and AIDS Prevention and Control Act 2006 has drawn mixed and very sharp reactions. Inviolata Mbwavi, an AIDS activist who went public about her status in 1994, warned that the legislation in its current form appeared to label HIV-infected people as dangerous human beings with whom people should not associate.

“When you criminalise HIV then we are going back to square [one] of trying to stigmatise the virus even more, yet we have not effectively dealt with the stigma associated with HIV. Why do we want to further burden those who are already burdened by coming up with HIV-specific legislation?”

The Kenyan government is divided on the matter. The National AIDS Control Council, a government body set up to coordinate HIV control activities, is strongly opposed to the section that puts the responsibility for not transmitting the virus on those already living with it.

“Why would one bother to go for a test when they already know it could be used against them in a court of law?” said Tom K’Opere, an advocate of the High Court, at a conference organised by the Kenya National Commission on Human Rights to discuss the merits and demerits of the legislation.

“It is ridiculous, because we all know that knowing one’s status is one of the most effective ways of containing the scourge, yet we are now trying to discourage this by introducing such a law.”

According to the National AIDS Control Council, most Kenyans do not know their status.

Supporters of the law, like Otiende Amollo, a lawyer and member of the task force that collected views from the public before the legislation was drafted, maintain it would go along way in protecting vulnerable groups like women and children, who are particularly vulnerable to sexual assault.

Anne Gathumbi, an officer of the Open Society Initiative for East Africa, which supports and promotes public participation in democratic governance and the rule of law, said: “We know that the majority of those who know their status are women. What we are doing by passing such a law is therefore to condemn people we are claiming to protect to jail.”

The new legislation has also brought into question the responsibility of HIV-negative people. “What we are proposing in the law only touches those already [HIV]-positive. We should also look at the responsibility of those who do not have the virus,” said Anne Marie, a civil society activist.

“Are we not forgetting that we should vouch for shared responsibility? Let us not create a law because we are desperate to show the world that we are doing something.”

Another clause causing concern is the one that gives medical practitioners the authority to disclose the status of patients to their next of kin, violating their right to confidentiality. It remains to be seen whether Kenya will go ahead and implement these contentious clauses.

Kennedy Anyona*, who has lived with the virus for the past four years, says the responsibility of revealing one’s status to anybody is a right that should not be delegated to any other party.

“I have a right to confidentiality and that cannot be trampled upon. The responsibility of revealing my status, which is the best thing to do however, rests with me,” he said.

“Taking that away means I am being denied my human right to privacy and confidentiality, which are even enshrined in international laws to which Kenya is a signatory.”

Africa: PlusNews publishes in-depth analysis of criminalisation throughout the continent

PlusNews, the global online HIV and AIDS news service of the United Nations Integrated Regional Information Networks (IRIN), has published an excellent in-depth analysis of criminalisation in Africa.

A collection of short articles focusing on various aspects of criminalisation in different parts of the continent can be downloaded as a pdf here, or read online here.

They include:

I reproduce here an article providing an overview of the situation alongside a criminalisation map of Africa which they say will be updated once they receive more accurate information from readers in Africa.

 

AFRICA: Will criminalising HIV transmission work?

IRIN/PlusNews

Monday 08 December 2008

Countries in sub-Saharan Africa are looking at a new way of preventing HIV infections: criminal charges. But experts argue that applying criminal law to HIV transmission will achieve neither criminal justice nor curb the spread of the virus; rather, it will increase discrimination against people living with HIV, and undermine public health and human rights.

UNAIDS has urged governments to limit criminalisation to cases “where a person knows his or her HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit HIV”. The reality is that intentional and malevolent acts of HIV transmission are rare, so in most instances criminal prosecutions are not appropriately applied.

In Switzerland, a man was sent to jail earlier in 2008 for infecting his girlfriend with HIV, even though he was unaware of his HIV status, and a Texas court recently sentenced a man living with HIV to 35 years in prison for spitting on a police officer, although the chances of the officer being exposed to the virus were negligible.

Laws making HIV transmission an offence are not new to the developed world, but the trend has been growing in African countries, where higher prevalence levels make such laws all the more attractive to policymakers.

“Africa has burst into this whole frenetic spasm of criminalising HIV,” said South African Justice Edwin Cameron, who is also HIV positive, at the International AIDS Conference in Mexico earlier this year.

In Uganda, proposed HIV legislation is not limited to intentional transmission, but also forces HIV-positive people to reveal their status to their sexual partners, and allows medical personnel to reveal someone’s status to their partner.

Most legislative development has taken place in West Africa, where 12 countries recently passed HIV laws. In 2004 participants from 18 countries met at a regional workshop in N’djamena, Chad, to adopt a model law on HIV/AIDS for West and Central Africa.

The law they came up with was far from “model”, according to Richard Pearshouse, director of research and policy at the Canadian HIV/AIDS Legal Network, who maintains that the model law’s broad definition of “wilful transmission” could be used to prosecute HIV-positive women for transmitting the virus to their babies during pregnancy.

People living with HIV have expressed concerns that the growing trend to criminalise HIV infection places legal responsibility for HIV prevention solely on those already living with the virus, and dilutes the message of shared responsibility.

UNAIDS has warned that using criminal law in cases other than intentional transmission could create distrust in relationships with healthcare workers, as people may fear the information will be used against them in a criminal case. Such laws could also “discourage HIV testing, since ignorance of one’s status might be perceived as the best defence in a criminal law suit.”

Some policymakers have called for HIV legislation as a means to protect women from HIV infection, but the irony is that sometimes these laws may result in women being disproportionately prosecuted. Many women find it difficult to negotiate safer sex or to disclose their status to their partner.

What are the alternatives? UNAIDS recommends that instead of applying criminal law to HIV transmission, governments should expand programmes proven to have reduced HIV infection. At the moment, there is no information indicating that using criminal law will work.