US: New toolkit for lawyers defending HIV-related prosecutions now available

A new toolkit from the Center for HIV Law and Policy / Positive Justice Project, released earlier this month, provides a wealth of information for lawyers representing people living with HIV who are facing criminal prosecution based on HIV status.

The toolkit includes charts, articles, guidances, case law, legal analysis, scientific data and empirical citations, as well as quick-reference resources and links to longer reference materials.

The toolkit includes the following resources :

HIV Criminalization Fact Sheet
Guidance for a Legal Advocate Representing an HIV-Positive Client in a Criminal Exposure Case
Guidance for People Living with HIV Who Are Threatened with, or Are Facing, Criminal Prosecution for HIV Nondisclosure or Exposure
Case Law Index
Legal Drafting Resources (featuring sample amicus briefs)
Secondary Resources
Sample Medical Expert Affidavit on HIV Transmission
Chart: Comparative Sentencing on HIV Criminalization in the United States
Chart: HIV, STIs and Relative Risks in the United States
Chart: HIV and Chronic Disease in the United States

Although created primarily as a resource for lawyers, other advocates, as well as people living with HIV in the United States, are likely to find the toolkit useful.

Download ‘Ending and Defending Against HIV Criminalization: A Manual For Advocates Volume 2: A Legal Toolkit: Resources for Attorneys Handling HIV-Related Prosecutions’ from the Center for HIV Law and Policy here.

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.

Lawyers critique Supreme Court ruling

Some criminal lawyers are worried that the Supreme Court has imposed on people prosecuted for not disclosing their HIV-positive status to sex partners a “significant evidentiary burden” to show that they used a condom and that their viral loads were low when they had sex. A pair of decisions handed down on Oct.

Exposing the 'Office of Medical and Scientific Justice' by Seth Kalichman

I posted earlier that AIDS Denialist and LA Private Investigator Clark Baker is focusing his attention on the US Military justice system. Baker’s storefront business, the Office of Medical and Scientific Justice (OMSJ) is paid by US taxpayers to bring AIDS denialists to the court. How are AIDS Denialists used as experts in legal cases?

Texas: Another ‘deadly weapon’ HIV exposure conviction: 15 years for one-off sexual encounter

A 26 year-old man from the small Texan town of Copperas Cove has been sentenced to 15 years in prison with an additional $3000 fine after pleading guilty to charges of aggravated assault with a deadly weapon.

The aggravated assault? Having one-time consensual unprotected sex with a 16 year-old male after the two met on Grindr. The deadly weapon? HIV, of course.

The details of the man’s arrest, including a link to a photocopy of the affadavit of charges, were first published last November on the website of a local TV news station.

The victim learned through another “Grinder” user that [the man] claimed to be HIV-positive. Police say [he] admitted that he was HIV positive during an interview with investigators. According to the affidavit, [he] did not inform his victim that he was HIV-positive.

Yesterday the local TV news station reported on the 15 year sentence handed down by the 52nd District Court noting that the man had previously pleaded guilty as charged in June.

In March 2010, similar charges were laid against another HIV-positive man in another part of Texas for sex with a 15 year-old male under similar circumstances. The rather balanced Houston Chronicle article reporting these charges also referred to this case and pitches prosecutor David Castillo against Catherine Hanssens, executive director of the New York-based Center for HIV Law and Policy.

Prosecutors in Gatesville are trying the same tactic after similar allegations against another man surfaced last year. Coryell County District Attorney David Castillo plans to prosecute [name of man] in May. [The man], 26, is accused of sexually assaulting a 16-year-old boy he met on the Internet last year. Castillo said he believes [the man] has HIV and plans to prosecute him, regardless of whether the boy contracted it. “You can fire a gun at someone and miss, and it’s still aggravated assault with a deadly weapon,” Castillo said.

The analogy is a poor one, said Catherine Hanssens, executive director of the New York-based Center for HIV Law and Policy, because it overestimates how easily HIV is spread and stigmatizes those with the virus. “HIV should not be an aggravating factor unless there’s some evidence that he intended to do some harm and did some harm,” Hanssens said. “Criminal law in every state is adequate to deal with it. But to treat it as evidence of guilt and a deadly weapon wasn’t appropriate in 1985, and it isn’t appropriate now.”

In more than 20 years of advocacy, Hanssens said she had seen dozens of charges involving defendants with HIV, some arising from charges involving biting and spitting. Hanssens said charges alleging a “deadly weapon” arise from an infected person’s knowledge that they have the virus. She blasted prosecutors and public officials for not considering the deeper ramifications of calling HIV a deadly weapon.

“To refer to HIV as a deadly weapon in 2010 speaks of just unforgivable ignorance,” Hanssens said.

Contrast Ms Hanssen’s point of view with a blog posting by Houston criminal defence lawyer John Floyd, who discusses both cases and opinions in the above article, in a post entitled, Is HIV a Deadly Weapon?

HIV infected individuals who knowing have unprotected sex with sex partners without informing them of their infection are potential “serial killers.” It is impossible for the infected individual to know who or how many of their sex partners will contract HIV and die as a result of the exposure. No one should be exposed to such potentially fatal risks simply because someone is not responsible enough to fully disclose that he/she has a potentially contagious disease.

With defence lawyers like him, who needs prosecutors?

Of note, the age of consent in Texas is 17, and yet charges of “statutory rape” were not laid, even though the same outcome could have been obtained (Sex with a minor is a second degree felony, punishable by two to twenty years in prison and a fine of up to $10,000.00) without these ridiculous and stigmatising ‘deadly weapon’ charges.

Last November in Michigan – a state not known for its enlightened treatment of people with HIV given the (now dropped) terrorism charges against an HIV-positive man who allegedly bit a neighbour in self-defence – a 21-year-old man who pleaded guilty under the state’s HIV disclosure law to having unprotected sex during a one-night stand with a 16 year-old girl without first disclosing that he was HIV-positive was jailed for nine months. The age of consent in Michigan is 16, so this was not statutory rape.

UK: HIV transmission case dropped against gay Doncaster man

A case against a gay man in Doncaster, in the north of England, who was accused of ‘recklessly’ transmitting HIV to two male complainants, has been dropped due to lack of evidence – apparently there had been no investigation of the previous sexual partners of the complainants who may have infected them.

I don’t have a lot of details about the case, which I first heard about in March 2009, and I would like to protect the identity of the accused who has obviously been through hell for at least 15 months.

What I do know is this: two men had complained to the police that they believed that they had been infected by the accused during separate dates. (I don’t know whether the complainants knew about each other before they went to the police, or after).

The Crown Prosecution Service (CPS) took their complainants seriously enough to prepare a ‘reckless grievous bodily harm’ prosecution under Section 20 of the Offences Against the Person Act 1861. To prove the element of causation of such ‘grievious bodily harm’ (i.e. HIV transmission), the prosecution must prove beyond reasonable doubt that only the accused could have infected the complainant(s).

I’m reliably informed by the man’s defence lawyer, Khurram Arif, that the trial was meant to commence yesterday at Doncaster Crown Court. The defence had prepared a scientific report examining the likelihood that only the accused could have infected both complainants. The report highlighted that the complainants’ previous sexual partners may also have infected them and that phylogenetic analysis could not rule this out.

Yesterday, the prosecution consulted with its own scientific expert and conceded that since both complainants had previous sexual partners and the police did not investigate nor eliminate them as possible sources of infection, there was no case to answer. This is, in fact, what the CPS guidelines state.

This is one of several cases defended by Mr Arif, where a lack of attention to the detail of what scientific evidence can – and cannot – prove has led to the CPS dropping cases very late in the day. As Mr Arif notes in his email to me: “The prosecution, when making such allegations, have to prove that they have closed all the doors to the possible sources of infection. Again, in this case, they did not.”

The case highlights that in England & Wales, people accused of such ‘crimes’ should never plead guilty and should immediately contact an HIV organisation for advice in order to be put in touch with an expert defence lawywer, such as Mr Arif, who services legal aid clients through Christian Khan Solicitors and private clients through GSC Solicitors.

In addition, complainants need to be aware that making such accusations requires them to reveal their entire previous sexual history and to name all of their sexual partners since their last HIV-negative test. Only when they have all been contacted and tested for HIV can a prosecution actually reach trial.

HIV crimes – lawyers’ views

HIV crimes – lawyers’ views

BBC News – September 19, 2006
Michelle Roberts, Health reporter

Two lawyers who have defended men accused of recklessly transmitting HIV share their views and experience regarding HIV prosecutions.

Kharrim Arif, a solicitor in London, was the defending lawyer for the first British man acquitted of ‘recklessly’ transmitting HIV to his gay lover.

Donald Findlay QC defended a Scottish man accused of knowingly infecting his girlfriend with HIV.

Expressed consent

Mr Arif said: “Someone who is HIV positive must inform their partner of their status before having intercourse. There must be expressed consent.

“Most of the cases that I have dealt with have involved homosexual men and there is always a question of implied informed consent and whether that would amount to a defence.

“For example, the gay scene is known as promiscuous and there is a risk of transmission of HIV from one party to another. The fact that the parties do not discuss this before intercourse and do not use protection, does that mean that they consent to the risk?

“That is the trouble that we have had in these cases. But the law is very clear that implied informed consent is not a defence. You have to have expressed consent, be it in writing or verbally.

“The charges are always for ‘reckless’ transmission – the person thinks of the risk but none the less carries on.

“The only defence is if you obtain expressed consent.

“And even that may not be enough in the court’s view because they might judge that a person could never, in their right mind, have consented to such a risk.

Scientific ‘proof’

“From a defence perspective, we go hard and fast at the causation side of things. It is always the scientific evidence that will make or break the case.

“There have been discussions whether there should be a separate offence for passing HIV on. The current law is probably sufficient, classing it as a GBH.

“But whether you should prosecute is questionable. My client would have contracted HIV from someone and he did not consent to it. But he hasn’t complained. You could go back and keep prosecuting. It’s an endless cycle.

“I don’t know whether because of this acquittal case the prosecution will stop and think whether they can prove causation.”

Scottish law

Donald Findlay said: “In Scotland, the charge is culpable and reckless conduct.

“If you know that you have HIV, you know that it can be transmitted through sexual intercourse and that it is obviously damaging to the health of the person who catches it and you have unprotected sex, that alone is reckless, which would make it culpable.

“Whether the partner in the sexual act knows and consents is a moot point because you cannot, in Scottish law, consent to an assault.

“Intent can be inferred from the nature of the conduct.

“The law would assume, unless you could somehow prove to the contrary, that you knew it was dangerous to have sexual intercourse because you might transmit the infection.

“If you were HIV positive and told your partner and used a condom but it split, that I do not think would amount to a crime.

“If you did not tell your partner but used a condom – that is a grey area.

“If you have not disclosed it you have a potential problem because you are depriving the other person of assessing the risks that they are taking.

“If there are two people and they know that one of them has HIV and they go out and get blind stinking drunk and end up in bed and the infection is passed, whether anybody would be prosecuted in that situation is somewhat dubious.

“The risk they could be prosecuted is certainly there.

“If you are HIV positive, have told your partner and they consent to unprotected sex, I still think you have committed a crime under Scottish law. I could not rule out the possibility of a prosecution.

“In Scotland, if you have people into sadomasochism, even if though the person consents to being hit, it would still be an assault by the person doing it.”