US: New HIV as a ‘deadly weapon’ case in North Carolina (updated)

Another US jurisdiction has classified a person living with HIV as a walking deadly weapon. North Carolina police yesterday charged a 45 year-old HIV-positive man with “assault inflicting serious bodily injury and assault with a deadly weapon” after he resisted arrest in Durham.

According to a brief report in The News & Observer, the police report says that the man

knowing he is HIV-positive, twice tried to expose the officer to his blood, once by cutting the officer’s thumb and also by head-butting him and biting his ear.

This prompted one local citizen to write in the comments section

This was a vicious act. If the officer had escalated the continuum of force level to shooting and killing this person he wwould [sic] have been justified. We don’t know how this individual acquired HIV and that doesn’t matter in that a decent human being would not knowingly have exposed another to the disease.

Another wrote

This event should lead to a charge of attempted murder because that is what it is. This act by this infected man is willful and intentional. May God be with the officer and find him or her free and clear of this dreadful disease.

The man, who was also charged with “injury to real property and unauthorized use of a motor vehicle,” will appear in court on June 29th.

Update: June 23rd

The man actually appeared in court yesterday. The hearing was filmed by local TV station, News14.

It is now patently clear to me, from the details revealed, that the risk of HIV transmission from the acccused to the police officers was so slim as to be negligable.The facts are that he cut a police officer’s right thumb while he was bleeding (interestingly, it doesn’t say how he got to be bleeding) while that officer was trying to arrest him (and it doesn’t say that he intentionally did so). He also didn’t actually bite the other policeman’s ear, but only “tried to bite that officer’s ear”.

And yet, Judge William Marsh III tells the court

“If Mr. Perry is engaged in the behaviour described, knowing that he has a potentially fatal condition with the ability to infect others, I consider that a serious offence, and could very well have potential to be increased to something more serious.”

This still suggests that when someone who is HIV-positive resists arrest, they can be seen as being ‘deadly weapons’ in the absence of any real possibility of transmitting the virus. This surely is a prime example of HIV-related discrimination based on ignorance and stigma.

Canada: Prosecutions having negative impact on disclosure; Edwin Cameron speaks out

In my news story for aidsmap earlier this week, I wrote:

Over the past week, the global movement against criminalisation of HIV transmission received its biggest boost since the International AIDS Conference in Mexico last July. In rallies and meetings in Australia, Canada and Sweden leading judges, lawyers and politicians joined with HIV-positive advocates and civil society organisations to condemn the criminal justice system’s current approach to HIV non-disclosure, exposure and transmission.

I’ve already posted more detailed information about the Australian meeting, one of the two events in Canada, and highlighted the situation in Sweden. Below I’m posting highlights from newspaper coverage of South Africa Constitutional Court Justice Edwin Cameron’s speech in Toronto last Friday.

Update: The official text of Edwin Cameron’s address is now available from the Canadian HIV/AIDS Legal Network website. (Une version française est disponible ici). An audio recording, which captures both the passion of his delivery, and some off-the-cuff changes, is available in the same location. Video may also be made available at a later date.

The Toronto Star ran a major article headlined, Judge slams criminalization of HIV, which put forward, without critique, Mr Justice Cameron’s international policy arguments as to why Canada needs to think again about its nondisclosure law.

Canada’s relentless practice of invoking the criminal law against people with HIV and AIDS is only intensifying the stigma surrounding the conditions and contravenes United Nations guidelines, argues a judge of South Africa’s Constitutional Court, who is HIV-positive himself.

African countries that look to Canada as a world leader on human rights issues are getting the wrong message when it puts people with HIV/AIDS on trial for having unprotected sex, even when the virus has not been transmitted, Justice Edwin Cameron said yesterday.

“Canada’s wide approach to exposure offences is sending out a terribly retrograde message to other countries, especially on my own continent, in Africa,” said Cameron, who delivered the keynote speech last night to kick off a weekend symposium on HIV and human rights issues, hosted by the Canadian HIV/AIDS Legal Network.

With human immunodeficiency virus still steeped in so much stigma in Africa that many are afraid to be tested, Canada is not providing a good example of dealing rationally and justly with the epidemic, said Cameron, noting Canada is a “world leader” in targeting HIV-positive people for prosecution.

[…]

AIDS activists, Cameron said, must accept there may be instances in which criminal liability is justified, noting that one example might be the recent case in Hamilton of Johnson Aziga, convicted of first-degree murder for actively deceiving women about his HIV status and infecting them.

But Canada needs to rethink its sweeping use of the criminal law and question why it is singling out HIV-positive people for prosecution when the same Criminal Code powers are not being used against those who expose people to other potentially deadly conditions, he said.

“Let’s take, for example, the two recent health scares, swine flu and the highly, highly contagious forms of tuberculosis. We had a case where somebody got onto an aircraft with a highly transmissible form of tuberculosis, and no one ever suggested that person should be prosecuted.”

“Queer activist” Andrew Brett also wrote about Mr Justice Cameron’s speech on rabble.c a. It’s becoming clear that the fallout of the Johnson Aziga verdict is hitting HIV-positive Canadians really hard. The few I’ve spoken with personally are feeling under attack. Mr Justice Cameron, himself HIV-positive, feels their pain. Brett writes:

Earlier this year, a court in Hamilton, Ontario became the first in the world to convict a man of murder for failing to disclose his HIV-positive status to his sexual partners, two of whom later died of AIDS. Since then, criminal prosecutions have increased and the degree of charges being laid has been elevated.In some cases, Toronto police have even issued “public safety alerts” with names and photographs of HIV-positive people who allegedly failed to disclose their status, asking their sexual partners to come forward. Cameron likened this practice to a proposal by a Swaziland parliamentarian to brand people with HIV/AIDS on the buttocks.

An article published on Tuesday in Xtra.ca, entitled Attempted murder the new aggravated assault? eloquently highlights the impact this culture of fear is having in Toronto.

Rita Shahin, associate medical officer for Toronto Public Health, says that public health can be required by law to tell police if a particular individual has tested positive for HIV.

“When the police get a complaint in front of them then they will come to us with a search warrant and if we have a file on somebody then we have to produce it,” says Shahin.

However individuals who have been tested anonymously — through the Hassle Free Clinic’s anonymous HIV-testing program, for example — will not show up in public health’s records.

Although Shahin says public health hasn’t yet seen a decrease in the number of people getting tested as a result of the recent charges laid, “it’s definitely creating a lot of anxiety and especially for those people who are behaving responsibly it’s [a question of] how do they protect themselves? How do they prove that they’ve disclosed to someone?”

[Angel] Parks [coordinator of the AIDS Committee of Toronto’s Positive Youth Outreach programme] says she’s also hearing from people living with HIV/AIDS (PWAs) who are afraid that they’ll be charged even though they’ve disclosed.

“With any other criminal charge it’s always relied upon for having forensic-type evidence and these cases seems to only be based on he-said, she-said scenarios,” says Parks.

“Now they’re are even more afraid of what the consequences will be when they do disclose… like what if things fall out in a relationship where disclosure has happened? What can they do to protect themselves to ensure they can provide a credible defence if such an incident did occur?”

Because public health also deals with complaints against individuals for nondisclosure this is a scenario Shahin has seen play out.

“That’s why we have to really investigate the complaint to sort out, is it true? Is there a basis to the complaint or is it a relationship that’s gone sour where somebody’s being vindictive?”

Both Parks and Shahin recommend the recently published HIV Disclosure: a Legal Guide for Gay Men in Ontario, produced by the HIV and AIDS Legal Clinic (Ontario).

“It is meant to target gay, bi and men who have sex with men,” says Parks, “but the information contained in it is applicable really to any person living with HIV…. They talk about how to protect yourself against malicious lies or attacks.”

It’s going to take some time before public opinion catches up with the idea that the Canadian criminal justice system’s approach to HIV nondisclosure is at best flawed, and at worst, severly and negatively impacting on the human rights of people living with HIV, as this comment from a Toronto Star reader (agreed with by 15 others, and disagreed with by only one) suggests:

The carrier should still be charged: If a person with HIV has unprotected sex with another person who doesn’t have HIV and doesn’t inform his or her sexual partner that he or she has HIV, that person should be charged. I think the same would apply to someone who has herpes and doesn’t inform his or her partner that he has it. Just because the unsuspecting sexual partner doesn’t get HIV from the carrier doesn’t mean that the carrier shouldn’t be charged. It would be like saying that if you go into a bank to rob it and you are carrying a gun but don’t use the gun, you shouldn’t be charged with bank robbery. That doesn’t make sense.

No, actually, its the gun analogy that makes no sense. Or is it the case that people with HIV are now thought of in Canada not just vectors of transmission but actually walking deadly weapons? It seems that when it comes to HIV-positive people, attitudes in ‘conservative’ Texas and ‘liberal’ Ontario are exactly the same.

US: Judge gives HIV-positive pregnant woman longer prison sentence ‘to protect unborn child’ (updated)

A judge in Maine has more than doubled the prison sentence of an HIV-positive woman in order to protect her unborn child, according to a report from The Bangor Daily News. The judge admits he based the decision entirely on the woman’s HIV status.

The 28 year-old woman, from Cameroon, had previously pleaded guilty for having fake documents. She was not legally entitled to be in the United States and was planning to seek asylum. The case has now been taken up by the Maine Civil Liberties Union.

Both prosecution and defence had asked U.S. District Judge John Woodcock to sentence the woman to 114 days, or time served (she has been in custody since January 21st). However, citing the welfare of the woman’s unborn child, the judge sentenced her to 238 days (to coincide with her due date of August 29th).

Woodcock told [the woman] at her sentencing on May 14 in U.S. District Court that he was not imposing the longer prison term to punish her further but to protect her unborn child. He said that the defendant was more likely to receive medical treatment and follow a drug regimen in federal prison than out on her own or in the custody of immigration officials. The judge also said that his decision was based entirely on her HIV status. If Tuleh were pregnant but not infected with the AIDS virus, he would have sentenced her to time served.

[…]

In sentencing Tuleh, Woodcock said that the law required he take into account a defendant’s medical condition in fashioning a sentence. Although a defendant’s medical condition most often is used to lower a sentence, the judge found that there was nothing in the federal sentencing guidelines to prevent him from imposing a sentence longer than the guidelines recommended because of Tuleh’s HIV status.

“My obligation is to protect the public from further crimes of the defendant,” he said at Tuleh’s sentencing, “and that public, it seems to me at this point, should likely include that child she’s carrying. I don’t think that the transfer of HIV to an unborn child is a crime technically under the law, but it is as direct and as likely as an ongoing assault.

“If I had — if I were to know conclusively that upon release from imprisonment a defendant was going to assault another person,” Woodcock said, “I would act in a fashion to prevent that, and similar to an assault, causing grievous injury to a wholly innocent person. And so I think I have the obligation to do what I can to protect that person, when that person is born, from permanent and ongoing harm.”

The Maine Civil Liberties Union told The Bangor Daily News.

“We are enormously sympathetic to the desire to ensure that Ms. Tuleh receives adequate health care, including prenatal care,” Zachary Heiden, legal director for the MCLU, said in an e-mail. “Federal immigration law has developed in truly arbitrary and punitive ways. Here, even a federal judge could not get assurances that Ms. Tuleh would not be deported before the end of her pregnancy. He could not get assurances she would not have her medical care arbitrarily cut off. That is wrong.

“Judges cannot lock a woman up simply because she is sick and pregnant,” he said. “Judges have enormous discretion in imposing sentences, and that is appropriate. But jailing someone is punishment — it is depriving them of liberty. That deprivation has to be justified, and illness or pregnancy is not justification for imprisonment.”

The sentence was objected to primarily by the prosecution, however.

Assistant U.S. Attorney Todd Lowell objected to Woodcock’s decision. Lowell said Tuleh’s sentence set a precedent that “could affect the many other sorts of cases that come before this court in which defendants have serious medical conditions. In the end, Bureau of Prisons custody is designed to incarcerate,” Lowell told Woodcock at the sentencing hearing. “Incarceration is mostly designed for the purpose of punishment, deterrence and community protection. The Bureau of Prisons is not well-designed to accomplish necessarily the end of providing medical care to a defendant and her unborn child.”

The US Attorney’s office has appealed the sentence to the 1st U.S. Circuit Court of Appeals in Boston, but arguments will not be heard until late July. The MCLU is also planning on submitting amicus curiae briefs on the issues of HIV, pregnancy, immigration law, and prisoner rights.

Update: June 18th The woman will now give birth in hospital rather than prison after Judge Woodcock heard new evidence that she will be looked after in the community, according to a report in The Bangor Daily News.

“I recognize that the sentence turned out to be controversial,” he said. “I can certainly understand how some have misinterpreted what the court intended to do in this case.”

Woodcock said that what he had wanted to do was “to step in between the prison system and the social [safety] net” to ensure that Tuleh remained healthy and that the child was born healthy.

“At the time of the sentencing, I had no clear understanding of what the community could do,” Woodcock said.

[…]

A three-judge panel in Boston has agreed to hear the appeal on an expedited schedule, but oral arguments are not expected to be held until late July and early August. In addition to appeals filed by the prosecution and the defense, a group of 15 individuals and organizations have filed in Bangor and Boston a “friend of the court” brief in support of Tuleh.

Woodcock said Monday that he found the brief “articulate and helpful” in making his decision about whether to release Tuleh on bail.

More details at the National Advocates for Pregnant Women site here

Click here to see the results of the paper’s poll asking whether a judge should be able to impose a longer sentence in order to protect an inmate’s unborn child?

Ireland: Court agrees ‘HIV’ spit was provocation to kill

Brendan O’Connor, 25, who killed 50 year-old father of four Edward Clancy, “by stamping on his head with his full body weight” did so because he spat at him and he thought the man was HIV-positive.

His plea of manslaughter was accepted by Ireland’s Office of the Director of Public Prosecutions (DPP) “on the grounds that the spitting… constituted provocation.”

The case, an egregious example of institutionalised HIV stigma reported in today’s Irish Times, has got me spitting mad!

Deirdre Murphy, prosecuting, said the men exchanged words outside a pub in the town in the early hours of that day. Mr Clancy spat at O’Connor before crossing the road and moving away.

Det Sgt Fergal Patwell quoted from witness statements that O’Connor caught up with Mr Clancy and grabbed him.

“Brendan O’Connor began punching Edward Joseph Clancy, knocked him to the ground and stamped on his head,” he said. He said there was no evidence that Mr Clancy resisted.

Ms Murphy said a postmortem found the base of Mr Clancy’s skull was completely fractured and there was extensive bruising to his head and face.

She said the pathologist described it as a targeted attack to the head, and Mr Clancy was pronounced dead at Tralee hospital within an hour.

Det Sgt Patwell also told the court:

it was widely believed Mr Clancy had HIV and that gardaí [police] took precautions when dealing with him. “It appears there was no fact to it,” he added.

O’Connor’s lawyer said that:

his client deeply regretted the killing and expressed genuine remorse. He said HIV could be transmitted by spitting. “In my submission, the provocation was sufficient to cause this particularly violent reaction,” he said.

Until we remove the widespread ignorance about how HIV is transmitted (and it is NOT transmitted via spit or saliva) and the institutionalised HIV stigma across the entire criminal justice system, people actually living with HIV don’t have a chance in hell of justice in court.

Italy: Condom use within marriage now grounds for divorce, even if one partner is HIV-positive

Slightly off-topic, but according to reports from admittedly rather suspect sources, Italy’s highest court has ruled that a previous decision by the Vatican Court – to nullify an 18-year marriage because the husband had used condoms to prevent passing on a chronic illness that can be transmitted via sex – can stand, and that a marriage without the purpose of children is not legal, even if there are health concerns over unprotected sex.

The ruling means that husbands and wives would risk divorce if they refused unprotected sex – even if their partner suffered from HIV.

If this is, indeed, true, then this is a perfect example of how combining an illogical belief system with the law is a dangerous combination.

Story, from the Austrian Times, also picked up and published in The Daily Star.

Safe sex in marriage illegal says Italian court

Austrian Times
21. 01. 09.
Italy’s highest court has ruled that having sex with a condom is grounds to end a marriage.

The country’s Supreme Court has confirmed a decision by the Vatican Court to nullify a couple’s 18-year marriage because they had practised safe sex.

The husband, who was identified only as Fabio N for legal reasons, suffers from a crippling rheumatic condition called Reiter Syndrome which is transmitted through sex. His wife, identified only as Elisabetta T for legal reasons, began religious divorce proceedings in 2003.

Italy’s highest court ruled that a marriage without the purpose of children is not legal, even if there are health concerns over unprotected sex.

The ruling means that husbands and wives would risk divorce if they refused unprotected sex – even if their partner suffered from HIV.

Canada: Ontario judge ‘humbled’ after revealing HIV ignorance

An Ontario judge whose ignorance of how HIV is transmitted got him into hot water last January has

“acknowledged that his behaviour was inappropriate” and taken steps to address the concerns raised by his conduct during trial, including seeking information about HIV from a local group…

Although extreme, the judge’s behaviour highlights how the judicial system can be prejudiced against people with HIV. But if you’re a regular reader of this blog, you don’t need me to tell you that.

Update: Although the story from The Vancouver Sun (below) appeared to be the end of the matter, an article in the January 26th issue of Xtra questions whether it is possible for the judge to overcome his prejudice in one day.

In reply to the complainants the [Ontario Justice Commission] wrote that Douglas has admitted that his actions were wrong and has been educated about HIV by visiting the AIDS hospice Casey House one day last summer.

“Staff who work with the patients daily provided judge Douglas with a better understanding of the science, of the disease and of the people affected by the disease,” wrote OJC registrar Marilyn King.

The visit to Casey House was conducted in secret. It only came to light after media outlets received a copy of the reply King sent to a complainant.

Brian Finch, an HIV-positive activist, says he doesn’t think one visit is sufficient.

“Such ignorance in this day and age, I don’t think one day is enough,” he says. “I don’t know what is enough but it does seem kind of like going through the motions. How is someone like that going to deal fairly with HIV criminalization? Somehow when it comes to HIV the presumption of innocence in our justice system is reversed.”

Later in the article, Richard Elliot, executive director of the Canadian HIV/AIDS Legal Network notes:

“I would hope at a minimum it would include basic information about HIV and how it’s transmitted and how it’s not transmitted,” he says. “It should include information about the risk of infection associated with various sexual acts, which is also sometimes at play in some cases that come before judges.”

Elliott says judges also need to learn about the realities of HIV transmission in other circumstances.

“There’s an often-inflated sense of what the risks are,” he says. “We certainly see that when talking about occupational risk for police, paramedics, firefighters which can lead to compulsory HIV testing.”

Education should also include more information about the communities most affected by HIV, says Elliott.

“It needs to try to get judges more conscious of the context in which their decisions take place,” he says. “There should be one or more people living with HIV or people from the particular communities most affected by HIV.”

Education is badly needed, says Elliott, but some judges may not be willing to learn.

“To a great extent it depends on the individual judges,” he says. “There will probably be some who are less open to it. But it’s fairly urgent. It’s past due, but better late than never. We don’t control the timing.”

Ont. judge rebuked for HIV comments
By Megan O’Toole, National Post
January 9, 2009

TORONTO — An Ontario judge who asked a witness with HIV to wear a mask while testifying has been humbled by an Ontario Judicial Council decision that includes a recommendation to better educate judges about the disease.

Justice Jon-Jo Douglas has “acknowledged that his behaviour was inappropriate” and taken steps to address the concerns raised by his conduct during trial, including seeking information about HIV from a local group, according to the council’s finding.

Ontario’s Chief Justice also suggested that material on HIV/AIDS should be included in future educational sessions for judges.

AIDS groups on Friday lauded the findings.

“The bigger picture here is making sure that judges do have appropriate information and they don’t approach their jobs with misinformation about HIV,” said Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network.

“There is no place for such misinformation and prejudice anywhere, especially in the justice system,” added Ryan Peck, executive director of the Ontario HIV and AIDS Legal Clinic. “People living with HIV deserve equal, respectful treatment.”

Douglas sparked outrage among the two AIDS groups in December 2007 after telling a Crown attorney he would hear no further evidence until a witness who had HIV and hepatitis C was either masked or moved into a separate courtroom to testify.

When Crown attorney Karen McCleave told the court she was not aware of any health concerns that would arise with the presence of the witness, the judge responded: “The HIV virus will live in a dried state for year after year after year and only needs moisture to reactivate itself,” transcripts said.

McCleave also produced an affidavit from an expert in infectious disease who said there was no risk of transmission without direct exposure to blood, semen or vaginal fluid.

An application to have Douglas removed from the case was denied by the Ontario Superior Court of Justice, but he later removed himself voluntarily.

As a result of a complaint launched by the two AIDS groups, the judicial council launched a probe into the judge’s behaviour.

Canada: Ontario judge investigated for misconduct due to HIV ignorance

This story, from today’s Toronto Star requires no comment from me!

Judge’s ignorance of AIDS draws fire
Witness with HIV forced to wear a mask in court, groups complain
January 30, 2008
Tracey Tyler
Legal Affairs Reporter

The HIV virus will live in a dried state for year after year after year and only needs moisture to reactivate itself’ Justice Jon-Jo Douglas said, according to a transcript of a Nov. 23 trial.

An Ontario judge is at the centre of a misconduct investigation after insisting a witness who is HIV-positive and has Hepatitis C don a mask while testifying in his courtroom.

Three groups have complained to the Ontario Judicial Council about the conduct of Barrie judge Justice Jon-Jo Douglas, who later moved the case to a bigger courtroom in order to create more distance between the witness and the bench.

The judge refused to accept Crown counsel Karen McCleave’s entreaties there was no need for such measures.

“The HIV virus will live in a dried state for year after year after year and only needs moisture to reactivate itself,” Douglas insisted, according to a transcript of the Nov. 23 trial proceedings.

“This is outlandish,” Bluma Brenner, an assistant professor at the McGill AIDS Clinic at McGill University in Montreal, said yesterday. A drop of human immunodeficiency virus drying on the floor “would be inactivated within 20 minutes,” Brenner said in an interview.

But Douglas, a former Crown attorney appointed to the Ontario Court of Justice 10 years ago, was not prepared to continue the trial until he was satisfied “the safety and integrity of this courtroom” was protected.

“I mean, he speaks within two feet of me with two serious infectious diseases,” Douglas told McCleave. “Either you mask your witness and/or move us to another courtroom or we do not proceed.”

At one point, court staff returned after a recess wearing rubber gloves and placed documents touched by the witness in plastic bags.

Douglas, who continues to preside in Barrie, declined to speak with the Star yesterday.

In their Jan. 17 letter of complaint, the Canadian HIV/AIDS Legal Network and the HIV and AIDS Legal Clinic (Ontario) say Douglas’s response to the witness, a complainant in a sexual assault case, reveals “shockingly discriminatory thinking” and is a “particularly extreme example of unacceptable conduct by a judicial officer.”

The organizations say the case also raises questions about the extent to which judges are informed about HIV/AIDS and related human rights issues.

Their complaints target not only Douglas, but two courts – his own and the Superior Court of Justice, for failing to clearly condemn the behaviour.

The Crown applied to the Superior Court of Justice to have Douglas removed from the case for creating an appearance of bias. But Justice Margaret Eberhard declined, saying while his approach may have been wrong, Douglas had jurisdiction to take the steps he felt necessary to ensure courtroom safety.

Ontario’s Criminal Lawyers Association has also lodged a complaint with the judicial council. The lawyers’ group contends Douglas did not bring a judicial temperament to trial proceedings and treated a witness differently on the basis of irrelevant personal characteristics. Contacted yesterday, association president Frank Addario declined to discuss the allegations. The complaints are being investigated by a judicial council subcommittee, which will determine if a public inquiry into Douglas’s fitness to remain on the bench is warranted.

Meanwhile, Douglas hastily resigned from the board of Stevenson Memorial Hospital in Alliston on Jan. 14, just over a month after he was appointed.

The controversy surrounding the witness began on Nov. 23, during the trial of a man charged with sexually assaulting a fellow inmate at the provincial jail in Penetanguishene.

The alleged victim testified he was HIV-positive and had Hepatitis C, but didn’t inform his alleged attacker because he was traumatized. “I could be … shanked,” said the man, whose identity is shielded by a publication ban.

According to a trial transcript, during the lunch break, Douglas bumped into defence lawyer Angela McLeod and voiced concern the witness had been allowed to testify without the court being informed of his health status.

When court resumed, Douglas raised the issue with McCleave, the Crown attorney as well. “I am frankly shocked that in this day and age we were not advised,” he said.

McCleave replied she knew of no issues arising from the witness being in the courtroom or touching “a couple of pieces of paper” that were introduced as evidence.

That’s when Douglas offered his view that HIV will live “for year after year after year” in a dried state.

McCleave explained that she wasn’t prepared to ask the witness to wear a mask in court when he faces no such requirement in the community. There were also practical problems with the judge’s request, she suggested – the court reporter might not be able to accurately record his testimony.

Douglas refused the Crown’s request to grant a mistrial, declined to recuse himself from the case and refused to consider granting bail to the accused, Lee Wilde, when it became clear the trial would have to be adjourned until the judge’s concerns were addressed.

A new trial will begin Feb. 14.

An official with the National Judicial Institute in Ottawa, which has developed educational programs for judges, said while the curriculum addresses “emerging social issues,” there’s no course specifically addressing HIV/AIDS – though one is being planned. It should be up and running within “a couple of years,” she said.

Australia: Judge slams ‘inadequate’ sentences for ‘reckless’ HIV transmission

Penalty for reckless HIV sex ‘inadequate’

A MAGISTRATE has criticised the inadequate punishment of HIV-positive offenders whose reckless sexual behaviour contributes to the spread of the disease.

Magistrate Greg Connellan said yesterday the maximum five-year jail term set down by the Victorian parliament for the crime of reckless conduct endangering serious injury was inadequate for HIV cases.

The magistrate’s comments came as Sudanese migrant Lam Kuoth, 28, appeared in the Melbourne Magistrates Court yesterday and admitted having unsafe sex with a woman in defiance of public health orders that required him to use a condom.

Kuoth pleaded guilty to two charges of reckless conduct that put his victim at risk of contracting HIV.

The offence occurred on April 22, almost three weeks after Kuoth was placed on an order under Victoria’s Health Act to practice safe sex and advise others of his HIV status.

A police summary tendered to the court revealed that a psychologist had warned Victoria’s Department of Human Services that Kuoth was at “high risk of infecting others with HIV” 11 days before he committed the offence. Kuoth was detained and placed in isolation in a psychiatric hospital on April 27.

Mr Connellan told the court during yesterday’s hearing that exposing a sexual partner to the risk of contracting HIV was “an altogether much more serious matter” than the maximum five-year penalty for the charge of reckless conduct endangering serious injury would indicate.

“In my view, the five-year maximum penalty applicable to that offence is not really an adequate reflection of the seriousness of that offending,” Mr Connellan said. “The anguish caused to the complainant over a significant period of time is one important indication of the seriousness of these matters. The nature of the offending goes to the heart of significant public health protection issues.”

The case comes eight months after Victoria’s former chief health officer Robert Hall was sacked after failing to isolate a man accused of spreading HIV to multiple victims.

Kuoth will face the Victorian County Court on February 21.

India: Delhi judge allows man to divorce wife because she is HIV-positive

Court allows ‘HIV’ divorce

In the first case of its kind, a Delhi court granted divorce to a man because he could not have sexual intercourse with his HIV-positive wife. Additional district judge Rajnish Bhatnagar allowed the divorce petition filed by the husband on the ground that “marriage without sex is anathema”.

Holding the wife guilty of not disclosing to her husband her HIV- positive status, the judge said the petitioner was subjected to cruelty because of this. Bhatnagar added: “The disease being sexually communicable, the petitioner cannot be reasonably expected to live with her and lead a happy married life.”

The petitioner had married the respondent who was working with the Kalawati Saran Hospital in Delhi on October 2, 2000. The couple apparently never had a “cordial” sexual relationship after marriage.

In March 2001, the petitioner said his wife conceived. Her doctor advised to undergo the HIV-1 and ELISA tests during pregnancy. The ELISA test, conducted during the third month of the pregnancy, revealed she was HIV-positive. Claiming the test was erroneous, the petitioner’s wife told him she would get another test done in the seventh or eighth month. The petitioner, however, compelled his wife to undergo another test which also declared her HIV-positive. She got her baby aborted on July 23, 2001.

http://www.hindustantimes.com/StoryPage/Print.aspx?Id=660d7efd-beef-4631-885c-d19b233056e5