UPDATE – Canada: Gay man acquitted of HIV exposure in Vancouver, risk not significant enough for liability

Update: May 12th

Yesterday, the Canadian HIV/AIDS Legal Network issued a press statement on the case, available here.

The reasons for judgment in the case (R. v. J.A.T., 2010 BCSC 766) were made public on June 2nd.

Today, aidsmap.com published a news story that I wrote last night highlighting the most salient points. Read the full story here

The case before the courts in Vancouver, British Columbia hinged on how many times an HIV-positive gay man’s boyfriend had insertive, unprotected anal sex with him, and whether the risk of him acquiring HIV was ‘significant’.

[…]

Both sides accepted that the accused had failed to disclose his status, although there had been several discussions around HIV-related risk and an agreement to practise safer sex from the start of the relationship. The accused testified that he had been diagnosed HIV-positive two weeks prior to meeting the complainant and hadn’t been ready to disclose his status at that point.

“I was still dealing with social stigma, personal prejudice; I was mentally a mess,” he told the court.

The prosecution’s expert witness, Dr Richard Matthias, testified that the per-act risk of HIV transmission for the insertive partner was similar for both unprotected anal and vaginal intercourse and estimated the risk to be 0.04%, or 4 in 10,000.

Justice Lauri Ann Fenlon ruled that unprotected sex took place three times, and that the cumulative risk – 12 in 10,000 – did not reach “the standard of significant risk of serious bodily harm that must be met to turn what would otherwise be a consensual act into aggravated sexual assault.”

An equally important part of Justice Fenlon’s decision was that she found the harm of HIV infection to be less than it was perceived to be in 1998.

“It’s no longer the case that people infected with HIV will develop AIDS and die prematurely,” she said. “HIV, while still a deadly virus, can generally be treated and held in check.”

This is relevant, explains the Canadian HIV/AIDS Legal Network, which worked closely with defence counsel Jason Gratl, and provided expert testimony at trial, “because, as the severity of the possible harm decreases, the higher the risk of harm must be in order to warrant criminal prosecution.”

Original post: May 7th

In a groundbreaking ruling for Canada, Justice Lauri Ann Fenlon today ruled that the risk to the insertive partner during anal sex without a condom is not ‘significant’ enough to be considered either aggravated sexual assault nor sexual assault in the absense of disclosure.

Her ruling, reported in Vancouver’s daily paper, The Province, and Canada’s gay paper, Xtra, was based on expert evidence that the per-act risk of acquiring HIV via insertive anal sex was 4 in 10,000. Of interest, the defendant had been recently diagnosed (within the previous six months) and was not on treatment but the expert witnesses’ testimony did not draw attention to the possibility of a higher risk due to higher viral load during early infection.
Full details of each day of the court case have been painstainkingly reported in a blog by Nathaniel Christopher on Xtra.ca. This report of the expert witness statement is below

An expert witness said an HIV-positive man on trial for aggravated sexual assault had a 0.04 percent chance of infecting his partner every time they had sex. Dr Richard Mathias told the court he believed HIV transmission rates in anal intercourse are comparable to those in vaginal intercourse. He explained that a penetrative partner in anal sex is at risk of contracting HIV through anal fluid, which can travel up their urethra. He mentioned that in the case of uncircumcised men the risk is even higher as the fluids can infect the insertive partner through the tissue beneath the foreskin.

Crown counsel Brendan McCabe asked Mathias if he was aware of any individual incidents in the gay community of the virus going from an HIV-positive receptive partner to a negative partner. “No,” said Mathias, who has worked in public health for 35 years and conducted research on HIV and AIDS in the early days of the disease. He explained that the risk in the case of the accused would be 4 in 10,000 per act but that number would multiply with each encounter.

McCabe suggested that if the accused and complainant had had five unprotected encounters then the risk would be 20 in 10,000. Mathias said the risk is comparable to protected sex between an HIV-negative bottom and an HIV-positive top.

The complainant testified that he had engaged in insertive anal sex a total of five times with his former partner; the defendant testified that this happened only once, and that he had thought his partner was wearing a condom at the time. Justie Fenlon ruled that unprotected anal sex had taken place three times, but that a 12 in 10,000 risk was not significant enough to be considered a criminal act. Transmission did not occur.

I have concluded that the Crown has failed to prove that the risk of HIV transmission here — 12 in 10,000 sexual encounters or 0.12 percent — meets the standard of significant risk of serious bodily harm that must be met to turn what would otherwise be a consensual act into aggravated sexual assault.

This verdict should not be understood to mean that the court condones the behaviour of the accused. He had a moral obligation to disclose his HIV-positive status to his partner so that the complainant could decide whether he wanted to take the risk of engaging in unprotected sexual activity with the accused, no matter how small that risk. But not every unethical act invokes the heavy hand of the criminal law.

A previous posting yesterday, reposting an excellent article from Xtra, highlighted the potential significance of the case. It will be interesting to see what others make of it. More on Monday.

Canadian HIV law at a crossroads (Xtra.ca)

Reposting this article from Xtra.ca published online today. Tomorrow’s verdict (due to be issued 9am Vancouver time) will be as important to people living with HIV – and public health – in Canada as the outcome of UK’s general election. Will provide full details of trial and commentary on Monday.

Canadian HIV law at a crossroads

CRIMINALIZATION OF HIV / Vancouver, Edmonton and Hamilton cases could affect future police & crown decisions

Nathaniel Christopher & Neil McKinnon / Toronto / Thursday, May 06, 2010

Cases in three provinces could shape the way HIV non-disclosure is treated by the courts in this country.

In Vancouver, an HIV-positive man awaits a verdict after a lengthy trial. He and his boyfriend had unprotected sex very rarely — possibly just once — and the poz partner was always the bottom. The trial judge has ordered a publication ban on both men’s names.

In Hamilton, a poz guy had charges against him stayed because the complainant and accused only engaged in oral sex.

And in Edmonton, a straight man in his 50s is facing an assault charge for HIV non-disclosure, but police — who have a history of splashing names and photos around in the media — are refusing to release his name.

Although there is no HIV law on the books, Canadian police have, since the mid-’90s, been charging people with offences — ranging from assault to murder — for failing to disclose their health status before having unprotected sex. HIV activists have long said that transmission should be a public health matter, not a criminal one.

In Vancouver, Justice Lauri Ann Fenlon was, as Xtra goes to press, expected to render a verdict on May 7. But she has already hinted that the case could be appealed on constitutional grounds.

The defendant is represented by BC Civil Liberties Association lawyer Jason Gratl. Gratl called Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, to the stand to testify about the adverse effects of HIV criminalization.

At the trial, Fenlon said Elliott raised important policy issues that an intervener might put before the appeal courts or the Supreme Court of Canada, but that his testimony was not relevant to the issue before her.

The court, consequently, did not consider Elliott’s testimony, but if the accused is convicted, they may end up making their case in appeals.

Elliott testified to the challenges of requiring disclosure in all circumstances, saying that approximately one quarter of all people in Canada infected with HIV don’t know they have it.

“I think people recognize challenges of HIV disclosure, including stigma and negative consequences that can very easily flow from their HIV status,” Elliott told the court. “Rather than expect people to overcome those barriers in every circumstance and impose a criminal penalty when they don’t, the emphasis should be on personal responsibility and risk reduction, a sensible prudent strategy in the ability of all people.”

He told the court that the stigma associated with HIV could be a disincentive to disclosure.

“People, quite legitimately, have concerns over employment, housing, loss of personal and other social rela-tionships, ostracism in community and denial of service by service providers,” Elliott testified. “Although we only have limited systemic research on HIV stigma, we certainly do have enough to document that there is still a pervasive stigma associated with HIV.”

He stressed the need for clarity in the law to better define what sexual activities between HIV-discordant couples constitute “significant risk” of serious bodily harm as set out in the 1998 Supreme Court of Canada case R v Cuerrier.

***

In the Vancouver case, the issue of what constitutes significant risk is paramount, because the defence is arguing that the risk of HIV transmission was as low as 1 in 2,500. In none of the three cases did transmission occur.

Dr Richard Mathias told the court he believes HIV transmission rates from anal intercourse are comparable to those from vaginal intercourse. He explained that a penetrative partner in anal sex is at risk of contracting HIV through anal fluid, which could travel up the urethra. He mentioned that in the case of uncircumcised men, the risk is higher as the fluids can infect the insertive partner through the tissue beneath the foreskin.

Crown counsel Brendan McCabe asked Mathias if he is aware of any incidents in the gay community of the virus going from an HIV-positive bottom partner to a negative top.

“No,” said Mathias, who has worked in public health for 35 years and conducted research on HIV and AIDS in the early days of the disease. He explained that the risk in the case of the accused would be 4 in 10,000 per act, but that number would multiply with each encounter.

McCabe suggested that if the accused and complainant had had five unprotected encounters, then the risk would be 20 in 10,000.

Mathias said the risk is comparable to sex between an HIV-negative bottom and an HIV-positive top when a condom is used.

The definition of “significant risk” was also at the heart of the Hamilton case, where the prosecution stayed an aggravated sexual assault charge in April. A gay man was charged in February 2009 after an ex-partner alleged they had oral sex without his disclosing that he had HIV. The charges were based on the accused’s performing oral sex, rather than receiving it.

The ex-partner has since been tested and is HIV-negative.

Elliott said in a statement:

“There was never any solid basis for significant risk of transmission. It’s a misguided overreaction to lay and pursue some of the most serious charges in the Criminal Code when no harm has occurred and the risk of HIV transmission was miniscule at most.”

***

In the Hamilton case, the name of the man who was accused is public, but, at his request, Xtra chooses not report it. In the Edmonton case, police declined to release the accused’s name. And in Vancouver, the judge ordered a publication ban on the accused’s identity.

In all three cases, the complainant’s identity cannot be disclosed by law, akin to the way the identities of rape victims are protected.

Police across the country often disclose the names of people accused of sexual assault for HIV-nondisclosure, which, among other things, outs them as HIV-positive.

The Edmonton case is unusual because, from the outset, the name of the accused has been kept under wraps.

The charge follows a March 31 police complaint by a woman claiming she slept with an Edmonton man who failed to disclose that he has HIV.

An RCMP spokesperson, Jodi Hei-denger, says the move has nothing to do with public disclosure of the health status of the accused, and everything to do with protecting the identity of the alleged victim.

“Releasing any details would without a doubt identify the victim. We are not releasing the name of the accused strictly to protect the identity of the victim,” says Heidenger.

Which could mean that the Vancouver case, where at trial the accused’s name is protected, could be more precedent-setting. The move, however, may have come too late, since the publication ban came only after the name had been bandied about in media reports and police press releases.

The Hamilton case, because it never went to trial, will likely have the least impact on jurisprudence.

The Vancouver case, with the spectre of a Supreme Court challenge hanging in the air, could be one of the most important in a decade.

US: Media, police, judge conspire in ‘hate crime’ against gay HIV-positive man in biting case

I am so mad I could spit and bite! I’ve seen a lot of bad reporting and bad legal decisions during my time blogging, but never before have I seen the media conspire with the criminal justice system in such a calculated, prejudiced, stigmatising, and ultimately harmful way.

A gay man from a small city in Michigan who has been harrassed and beaten up by neighbours for years, has been charged with “assault with intent to maim, assault with intent to commit great bodily harm and possession or use of a harmful device” after the latest assault resulted in biting his neighbour the lip whilst he was defending himself.

The story first appeared on October 30th in the Detroit News.

Although police allege [the accused] was the lone attacker — biting neighbor Winfred Fernandis Jr., 28, on the lip following the Oct. 18 confrontation — [the acccused] says he’s long been the target of bigotry on his street, and Fernandis, along with several of Fernandis’ family members, took turns beating him.

“I have no memory of biting him,” said [the accused], who is due in 41-B District Court for a preliminary hearing Monday. He divulged his HIV status after questioning from the media. “This person has been threatening me for years. The hatred needs to stop.”

“He divulged his HIV status after questioning from the media.”

How did that happen? Well, Fox News did some ‘investigating’ and discovered he was HIV-positive. They asked him to confirm it on camera – he did. They then told the bitten neighbour on camera. That’s when it got ugly.

Here’s the Fox News report.

Since HIV is involved, Clinton Township District Court Judge Linda Davis said during a preliminary hearing on November 2nd that just knowing he was HIV-positive and biting the neighbour is enough to sustain these very serious charges, reports a second story in the Detroit News.

“He knew he was HIV-positive, and he bit the guy,” Davis said. “That on its own shows intent.”

No it doesn’t, Judge Davis, because saliva from a bite does not expose someone to HIV. Now she is implicated, along with the police and the complainant (and his wife), in a hate crime.

“I am still maintaining my client is the victim of a hate crime,” [the man’s attorney, James L. Galen Jr.] said. “He will be exonerated. This is the very first battle in what I think is going to be a long war.”

A pretrial and arraignment will take place on November 16th.

US: Arkansas man accused of HIV exposure not HIV-positive despite confession

A 41 year-old man in El Dorado, Arkansas, appears to have admitted under police questioning that he was HIV-positive after being arrrested in September for allegedly having unprotected without disclosing his HIV status.

However, a brief report from the police log of the El Dorado News-Times notes that the man was, in fact, HIV-negative, something he’d maintained during his arrest.

One can only wonder what went on during his time being questioned by police that could have made this man confess to something that wasn’t true, and why he was arrested in the first place.

Charges will not be filed against an El Dorado man who was arrested on Sept. 17 for knowingly/willfully exposing another person to HIV. Police said an investigation determined that [name of accused] 41, does not have HIV. According to an affidavit for warrant of arrest, [he] initially told officers he was not HIV-infected, but upon further questioning, he said he had the virus. Police said testing and a review of [his] medical records led to the charge being dropped.

US: Padieu case gets the 20/20 treatment; phylogenetic analysis totally misrepresented

The case of Philippe Padieu, the French-born Texan found guilty in May 2009 on six counts of aggravated assault with a deadly weapon and sentenced to 45 years for five counts and 25 years for the remaining count – all of which run concurrently – was featured last Friday night on US ABC TV’s tabloid-style news magazine, 20/20.

Five and half million viewers watched as Mr Padieu faced trial by media yet again. All six parts of the one hour show (actually 39 minutes minus commercials) are available to watch online.

Part 1: Women recall HIV criminal’s allure
Part 2: HIV diagnosis rocks women’s lives
Part 3: Women take matters into own hands
Part 4: HIV serial dater faces victims in court
Part 5: Man convicted of HIV crime speaks
Part 6: Women want case known to protect others

It’s basically sold as the story of a group of scorned women uniting to put Mr Padieu behind bars, summarised beautifully by the accompanying story on the ABC news website headlined, ‘How Women United to Stop HIV-Positive Man, Women’s Horror at Diagnosis Replaced With Mission: Stop Man From Infecting Others.’

There’s so much I could say about the show, which is something of a milestone in criminal HIV transmission reporting in the mainstream media, but I’m going to limit my comments about the very worrying misrepresentation of phylogenetic analysis as ‘proof’ that Mr Padieu was the source of all the women’s HIV infection. Perhaps blog readers could fill in the comments sections with insights and criticisms of their own about this programme.

[Update: Catherine Hanssens of The Center for HIV Law and Policy has some terrific comments and insights in her Sept 29th blog post.]

In Part 4 of the show, presenter/journalist Elizbeth Vargas says that it was Mr Padieu’s “own DNA” that proved he was guilty. But phylogenetic analysis is all about testing the genetics of HIV, not the individual. They then showed one of the US’s foremost experts in HIV forensics, Dr Michael L Metzker, of Baylor College of Medicine, Houston, Texas, who testified for the prosecution that Mr Padieu’s virus was extremely similar to that of the six women. Except here he says definitively that Mr Padieu was “the source” of the six women’s HIV. I’ve written about the limitations of phylogenetic analysis many times: the issues are summarised here.

In the final part of the show, we are introduced to ‘Lisa’ who dated Mr Padieu in 1997, and was diagnosed HIV-positive that same year. The show gives Dr Metzker a sample of Lisa’s blood and he says that “preliminary analysis” suggests that Mr Padieu was the source of all seven women’s HIV infection. The show concludes that Mr Padieu “gave Lisa HIV in 1997” and goes on to suggest, without a shred of evidence, that he had been diagnosed earlier than 2005 and knowingly infected Lisa and possibly hundreds of other women.

I’m extremely disappointed in Dr Metzker for totally misrepresenting what phlyogenetic analysis can prove. It is impossible to conclude, given the many limitations of phylogenetic analysis, that Mr Padieu infected Lisa in 1997. It is, in fact, just as possible that Lisa infected Mr Padieu.

I don’t expect 20/20 to explain the science (in fact, I expect them to get it wrong), but I do expect Dr Metzker, who is (was?) considered to be a respected scientist, to be less definitive about his conclusions. Maybe Dr Metzker would like to explain how he could be so sure – it would be very helpful to know if he has developed new, as yet unknown, techniques in phylogenetic analysis that can definitively pinpoint timing and direction of transmission.

US: Georgia judge branded ‘too lenient’ after 18 month sentence for cop biter

An Atlanta judge who sentenced an HIV-positive man to 18 months in prison after pleading guilty to aggravated assault and battery for biting a policeman has been branded too lenient.

The assistant district attorney had recommended a “more appropriate” 15 years because during the bite the man told the cop, “I have AIDS…you are going to die”.

In a long analytical article that appeared in last week’s Atlanta Sunday Paper, not once is there any mention of the lack of possiblity that HIV could have been transmitted during the bite. Instead, the article takes it for granted that the biter’s words were a literal and real threat – as real as a shooting or stabbing.

Tom Clegg, a former DeKalb County assistant district attorney who [previously] prosecuted [the HIV-positive man], who is deaf, [said of Fulton County Superior Court Judge Marvin] Arrington’s sentence… “I think it is very lenient, especially in light of [the] comment, ‘You are going to die.’ Whether he succeeded in infecting him or not, 18 months in jail is a gift.” Clegg says the assistant district attorney’s recommendation of 15 years with six to serve was more appropriate. “What if he had shot the cop? What if he had stabbed the cop? Frankly, I think most police officers would rather be shot than to have to suffer having a terminal illness,” he says. “The sentence is extraordinarily lenient.”

As is typical of these cases, the article also focuses on the pain, worry and anti-HIV drug side-effects that Officer Andrew Fincher suffered following the bite.

During the past year, Fincher, who tests negative for the disease, has endured a harsh HIV drug regimen, which Grady Hospital’s Dr. Jeffrey Salomone says was administered as a precaution. While Fincher suffered through drug side effects including nausea, diarrhea and extreme fatigue, always worried that the next test would show he had HIV, he willed himself to look forward to the day when the offender, [man’s name], 42, would be sentenced to a long stay in jail.

However, Judge Arrington, despite another article in the same paper claiming he is far too liberal to serve as a judge, did not reduce the sentencing due to his understanding of the reality of the miniscule risks of HIV transmission in this case. Neither was it because he appreciated the fact that in moments of stress and fear, people with HIV sometimes feel they have to use the stigma of HIV as a weapon to defend themselves, even whilst knowing that HIV itself is no more effective than a water pistol when used as an actual weapon.

Rather, in an email to the paper, the judge defends the 18 month sentence by claiming that no credible evidence was presented about the HIV-related aspect of the case.

“The State reported that when the defendant bit the officer, the defendant screamed something to the effect that he had full-blown AIDS and the officer was going to die (the transcript is not yet prepared so this is a mere approximation). Defense counsel cast doubt on that statement because there is no mention of any such statement in the police report or any of the discovery packet. A statement of that magnitude, defense argued, would have surely been included,” says Arrington via e-mail.

So, Judge Arrington ignored that fact that the man had HIV and sentenced him as he would have an HIV-negative cop-biter.

That, I believe, is ultimately fair; and that kind of equal treatment (regardless of the reasons for it) is what I ask of courts and judges everywhere.

Update: October 4th. Judge Arrington has written a two page letter responding to the paper’s criticism, which has been rebuked by the editor.

US: Miami man gets 15 years in prison for biting cop

A 35 year-old man with mental health issues, and characterised as a “drifter”, has been sentenced to 15 years in prison “for threatening to kill with his illness then biting a Miami cop.”

If this case doesn’t exemplify HIV-related ignorance and stigma amongst law enforcement and the judiciary, I don’t know what does.

According to the report from the Miami Herald, Johnson Jamerson

a former furniture delivery man who suffers from schizophrenia, was arrested in January 2008 for trespassing after he was found sleeping under the Interstate 395 bridge at North Miami Avenue. On a police bus later, Jamerson slipped out of his handcuffs. [Officer Matthew] Hall grappled with him. Wile struggling on the ground, Jamerson yelled out that he had HIV, the virus that causes AIDS, threatened to kill Hall and then sank his teeth into the officer’s right shin…He bit through Hall’s pants, drew blood and caused a permanent bruise.

Originally charged with attempted murder, a jury found him guilty of the lesser charge of aggravated battery on a law enforcement officer in June.

Circuit Judge Daryl E. Trawick was told by Miami-Dade prosecutor Ankur Sevak that although Officer Hall was not infected,

doctors did not clear him for eight anxious months. “He could not have any contact with his wife or children for fear he could severely affect them.”

Obviously, the cop experienced a tremendous (and unnecessary – as you will see below) amout of mental and emotional suffering, reflected in the sentence, but how much of this suffering is Mr Jamerson’s fault?

As I have written in a previous blog post about the police overreacting to the risk of HIV transmission from a bite, the risk of transmission is so low that PEP is not really warranted – and it certainly has never been proven to reduce the risk of transmission in such cases. The fact that the cop was worried enough to take PEP is not Mr Jamerson’s fault.

In addition it should not have taken eight months from the incident for the cop to have been considered to be definitely HIV-negative – a viral load test (PCR testing) could have figured that out within a few weeks. Again, that is not Mr Jamerson’s fault.

And as for the cop not having “any contact” with his wife or children – surely he was counselled that he could not transmit HIV casually. But then, if he believes he can get HIV from a bite, I guess he probably thinks he could pass it on via sharing cutlery or a toilet seat, just like 5% and 4% respectively of the UK public surveyed in 2004.

Once again, that is not Mr Jamerson’s fault.

Then again, it seems Miami police doctors appear to give PEP for three-times longer than any study has ever found it to be necessary.

“For three months afterward, I had to take a cocktail of medication three times a day, causing diarrhea, vomiting, nausea — everything you can think of,” Hall, a Coconut Grove patrolman, said after the sentencing.

What is strange is that, if he is telling the truth about his experience of PEP, he appeared to be following guidelines to take drugs that are way out-of-date: no HIV regimen needs to be taken three times day.

However, it seems that the US Centers for Disease Control’s PEP guidelines were last updated in 2005 and the currently recommended PEP regimen for basic 2-drug PEP is Combivir (AZT and 3TC in a single pill, taken twice a day) for 28 days.

Amazingly, the guidelines still include an option to take the drugs separately, and for AZT to be given three times a day. This is ridiculous and totally unnecessary. So, perhaps I can’t blame it all on the ignorance of the police and judiciary: the CDC need to update their PEP guidelines to prevent unncessary suffering. And by unnecessary suffering, I’m talking about Mr Jamerson as well as Officer Hall.

Ireland, UK, US: Spitting and biting cases highlight police ignorance

Whether its Fort Mill, South Carolina; Jacksonville, Florida; Rutland, Vermont; or Wimbledon in the UK, the police and media have been over-estimating the risk of HIV transmission from biting or spitting over the past two weeks with devastating consequences for all concerned.

South Carolina: Where biting is attempted murder
In Fort Mill, a man who bit his neighbour in a fight had his charges upgraded from simple assault to assault and battery with attempt to kill once police learned of the man’s HIV status, according to a report in The Herald.

Assault and battery with intent to kill is a felony that carries a prison sentence of up to 20 years upon conviction, Fort Mill Police Capt. Bryan Zachary said. “Upon review of the facts of the case,” Zachary said, the solicitor’s office “confirmed because of the malicious intent involved that the charge of assault and battery with intent to kill was warranted.

And yet, according to local TV station WSOC the bite did not break the skin.

London: Policeman’s unnecessary agony
There may be no attempted murder charges for biting under English law, but in Wimbledon, according to This is Local London, “a policeman bitten by an HIV-positive drug addict [during his arrest] faces an anxious wait to see whether he has contracted the virus.”

And during his wait he will, according to the report, “need at least seven months of anti-viral medication.” Yet Post Exposure Prophylaxis for HIV exposure lasts just 28 days and is not actually warranted for a bite.

Vermont: Where post-spit anxiety lasts a year
A policeman in Rutland faces totally unnecessary anxiety after being spit on by an HIV-positive man who had been trying to commit suicide.

The Times Argus reports:

A man diagnosed with the virus that causes AIDS is charged with a felony for spitting into the face of a Rutland police officer who must now undergo a year’s worth of testing to discover whether he was infected with HIV. […]

It was while doctors in the emergency room were treating [the man] that he allegedly cocked his head back and spit into the face, eyes and mouth of city police Sgt. David Schauwecker, who was trying to control [his] head, according to the affidavit. [The man], who was arrested more than a week later after his release from the hospital, has no prior criminal record.

But the charge he faces now is tantamount to a life-threatening assault, according to Rutland County Deputy State’s Attorney Kathryn Smith. “The nature of this offense is extremely concerning,” Smith said. “He knows he has a deadly disease and yet he exposed another human being to that disease. … This case before us is an actual act of violence.”

“Everything in my life is basically put on hold for a year,” said Schauwecker, who will be tested every three months to look for signs of HIV. “I went there that night trying to save someone and now I’m looking at a life sentence.”

Today, the Rutland Herald ran a letter from AIDS NGO, Vermont Cares, entitled ‘Clearing up HIV myths’. They wrote:

Enforcing the myth that HIV is spread through saliva… protects the health of no one. In fact, unfounded fears about HIV transmission and misunderstanding of risk can endanger people with HIV.

To be clear, the U.S. Centers for Disease Control and Prevention offers no demonstrated cases of saliva ever transmitting HIV. Transmittable HIV is present in four bodily fluids only: blood, semen, vaginal fluids, and breast milk.

Having someone spit in your eye or mouth is definitely frightening and may transmit other pathogens from influenza to tuberculosis. However, HIV is a highly unlikely risk in this instance.

Enforcing fear and misinformation about HIV, and promoting the belief that HIV testing is a variable enough science to postpone relationships and life, would be a terrible consequence of this incident. HIV testing, by CDC recommendations, is nearly 100 percent accurate at six or even three months.

Florida: Where attempted spitting is now a felony
In late July, Jacksonville police charged a 29 year-old HIV-positive man with aggravated assault with intent to commit a felony after he attempted to spit on a police officer following his arrest for shoplifting.

The arresting officer said that on the drive to jail, [the man] started coughing and trying to spit on the officer from the back seat of the patrol car in an “effort to transmit his HIV disease.” The officer had to put a “spit mask” on [the man]’s face before taking him to jail.

The short piece on firstcoastnews.com included the man’s name and photo. There are now seven pages of readers comments that range from the homo- and trans-phobic to pure HIV hatred. One reader even found and published the man’s previous (minor) criminal record. I genuinely fear for the man’s safety in- or out of jail.

Ireland: Judge concerned about police’s lack of education of HIV transmission risks of biting and spitting
The Irish Times reports that a High Court Judge, Ms Justice Mary Irvine, recently brought in a medical expert to testify over the risk faced by police of occupational exposure to HIV and other blood-borne diseases “as a result of the high number of Garda [Irish police] compensation claims involving fear of transmission of such diseases coming before the court.”

The judge awarded a policeman €8000 compensation after hearing testimony that “he had been “petrified” and suffered nightmares and sleeplessness after having been bitten during the arrest of a known drug user”.

Colm Bergin, a consultant in infectious diseases, told the court that in 10 years’ practice he had never come across a case of transmission of HIV or Hepatitis C through saliva.

The court also heard that:

the risk of contracting HIV or Hepatitis C from saliva can be as low as one in 100,000; and
that transmission of such diseases through contact with blood was also negligible.

[The judge] had expressed concern as to how well [police] were educated about risks to members contracting saliva and blood transmitted diseases through bites, spittle or needle stick injuries. “Such attacks are happening on a daily basis and there are huge numbers of compensation cases coming before the court,” the judge said. She has asked for reports on the risks involved and what is being done to reassure [police] injured in assaults as to the low level of risk.

Canada: Alberta judge, police believe that spitting transmits HIV

An Edmonton, Alberta man who claimed he was HIV-positive and then spat in the eye of a police officer has been sent to prison for five months for assaulting a peace officer, with the policeman’s fear of infection being an aggravating factor in sentencing. The man was later (mandatorily?) tested and found not to be HIV-positive.

According to the Edmonton Sun, Judge Michael Stevens-Guille requires some HIV transmission training like his Ontario counterpart Jon-Jo Douglas.

“Spitting is disgusting,” said Judge Michael Stevens-Guille, pointing out that, years ago, expectorating on someone was not considered to be worse than punching the person in the nose. However, as a result of the dangers of transmitting communicable diseases, it is now considered far more dangerous and there is a need to protect people like the police from such perils, said Stevens-Guille. The judge also noted it was aggravating that the police officer involved was “very frightened’ by the potential he might have contracted the HIV virus and had to go through the worry of waiting for blood test results.

I agree with Judge Stevens-Guille on just one point: spitting is disgusting. However, although being spat upon is unpleasant, and may be a symbolic assault, it is not a way to transmit HIV.

Read this fascinating blog entry from Sally’s Trove on what can be transmitted by spitting, and the history and legacy of US spitting laws.

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.