US: Missouri man charged after ‘HIV threats’ during arrest

An HIV-positive Missouri man has been charged with “two counts of reckless exposure to HIV” because he “scuffled” with two police officers who were trying to arrest him and shouted at them that he was HIV-positive and “hoped they would catch the virus and die.”

The report, from The Columbia Daily Tribune, takes the (non-existent) HIV transmission risk seriously probably because the policeman did.

“This is something we deal with,” [a cop] said. “It is not something that happens every day, thankfully. It’s one of those things that we’re aware of” as a risk.

[The man] was eventually subdued and taken to a local hospital for treatment of injuries. The deputies also went to the hospital to begin treatment to minimize the possible risk of infection.

Unfortunately for the man, Missouri has pretty wide-ranging HIV exposure laws, which state:
“It is also unlawful for a person knowingly infected with HIV to act in a reckless manner by exposing another person to HIV without the knowledge and consent of that person…[by] purposely doing anything else which causes the HIV infected person’s semen, vaginal secretions, or blood to come into contact with the mucous membranes or nonintact skin of another person.”

It doesn’t say anything about empty threats, though. This sounds like a repeat of 2008’s Willie Campbell debacle.

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.

UK: Man arrested for unprotected sex with several women

A 39 year-old man from Bournemouth has been arrested and released on police bail following complaints from several women in Exmouth, East Devon that he did not disclose his HIV status to them before they had consensual unprotected sex.

The case was first reported in Saturday’s Western Morning News with the unbelievably stigmatising headline: The HIV Timebomb.

A spokesman yesterday said: “Devon and Cornwall Police can confirm a number of women have come forward regarding allegations of their having had unprotected sex with a man who they now believe to be HIV positive. They allege he failed to disclose this to them.”

Unprotected sex without disclosure is a not a crime in England & Wales and police should not be arresting individuals based on complaints of unprotected sex.

Since then, various other papers and websites have run stories about the case, including This is Exeter (complete with quotes from local councilors – why exactly?) and, of course, the Daily Mail, which managed to totally misrepresent THT’s Lisa Power, who would never have “urged possible victims to contact police” in a million years.

This looks like a witch hunt to me (and to other UK HIV advocates with whom I am in touch), and is, sadly, another example of how the police get it wrong.

The man has been released on police bail until May 11. Let’s hope that the police fishing expedition, reminiscent of the case of a London woman in 2006, not only comes to nothing, but that the police are made aware of their serious errors.

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.

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.

Sweden: Health agency criticised for not co-operating with police

The Swedish Institute for Infectious Disease Control has revealed in an article in a medical journal that they have refused to co-operate with police in tracking down individuals who may have broken Sweden’s draconian public health and criminal HIV exposure and transmission laws. Following a public furore, they have now backtracked somewhat.

Articles from the Associated Press and The Local.se below.

Swedish health agency blasted for HIV stance

By LOUISE NORDSTROM

Associated Press

22nd October

STOCKHOLM, Sweden (AP) — A Swedish health agency revealed in an article published Wednesday that it had refused to help police track down people who knowingly infect others with HIV.

The revelation triggered harsh criticism and the government agency, the Swedish Institute for Infectious Disease Control, agreed later in the day to resume helping police.

Officials for the agency were quoted in a medical newspaper as saying they had declined to cooperate with police because they disagreed with current legislation that criminalizes the willful spread of the AIDS virus.

The report in the Dagens Medicin weekly sparked anger among prosecutors, police and government officials, who accused the institute of placing itself above the law.

The institute backtracked and its officials also clarified their position, saying they had no problem with the law itself, but believed the penalties for spreading HIV were too severe. The willful transmission of the virus is punishable by a maximum 10 years in prison.

Jan Albert, an expert at the agency, said the threat of imprisonment harms prevention efforts because some people who suspect they may have the virus refrain from getting tested for fear of prosecution.

Albert said the agency had declined to help police on many occasions, “but we’ve come to the understanding that we’ll resume work with the police.”

‘Decriminalize spread of HIV’: agency
Published: 22 Oct 08 11:38 CET

A Swedish government agency is refusing to assist the police in an ongoing investigation concerning a person suspected of infecting a woman with HIV.

Under current legislation, a person with HIV risks spending one to ten years in jail on assault charges if he or she knowingly has unprotected sex with another person.

“The criminalization of HIV makes preventive work more difficult. Also, sentences are very tough,” Ragnar Norrby, director-general of the Swedish Institute for Infectious Disease Control (SMI), told newspaper Dagens Medicin.

In a reversal of its previous policy, the disease control institute has recently refused to cooperate with prosecutors who requested information on a person suspected of spreading HIV.

“It is now our view that spreading HIV should not be classified as an offence,” Jan Albert, SMI head physician and regional manager, told Dagens Medicin.

“It is at least as much the responsibility of the individual person to understand that unprotected sex involves risks,” he added.

According to Ragnar Norrby, the threat of prosecution leads many people infected with HIV to remain anonymous, making it more difficult to trace the spread of the virus.

SMI also notes that the development of antiretroviral drugs has meant that HIV can no longer be equated to a death sentence.

US: Four NYPD cops received pensions for alleged HIV infection on duty

Court papers released today reveal that experts at the New York Police Department’s medical and pension boards had previously decided that four NYPD cops were infected with HIV during the course of their duties.

The details were published in the New York Daily News.

According to the report, a female cop is in a Brooklyn court alleging unfair treatment by the same NYPD boards because they had previously disallowed her claim for a disability pension – they say she was not infected on duty but through sex with her ex-cop boyfriend.

He is one of four policeman that the boards ruled were infected in the line of duty.

Three of the four unidentified cops approved by the NYPD pension board were infected in the following ways, according to court papers:

– The first officer submitted to the pension board documents indicating that on June 1, 1989, he “reached into a perpetrator’s underwear to retrieve drugs.”

– The second cop was bitten on the hands by an HIV-positive perpetrator on May 7, 1993.

– The third sustained a cut on his left thumb from a razor blade while frisking a suspect.

No details are provided for how the fourth cop was allegedly infected, but he was retired Officer Jane Doe’s ex-boyfriend and the father of her daughter, the court papers state.

Since the first two dates were 1989 and 1993, I suspect that all of these alleged transmissions will have occurred prior to the implementation of Post Exposure Propylaxis (PEP) for occupational exposure, and before phylogenetic anaylsis was first used in order to attempt to show a linkage (but primarily to show that there is no linkage) between the alleged source and the newly infected individual.

One wonders how much fear and misinformation about HIV transmission through casual contact, biting, and sharp implements played a part in the boards allowing these earlier claims.

I have a strong suspicion that Office Doe will not win this case unless she can show evidence of a transmission risk that predates sex with her ex-boyfriend, and even then, the risk would have to have been mitigated with PEP. If she did not report the risk, and didn’t access PEP, it’s going to be an impossible case for her to win.

Four cops got HIV on job: ruling
BY JOHN MARZULLI , DAILY NEWS STAFF WRITER
Thursday, October 2nd 2008

Four NYPD cops have contracted the deadly HIV virus in the line of duty and were granted disability pensions, the Daily News has learned.

The never-before-disclosed details are contained in court papers filed in connection with a lawsuit by a retired female cop who contends that she was infected on the job and, as a result, wants a tax-free pension.

Referred to as Jane Doe in the complaint filed in Brooklyn Federal Court, she alleges unfair treatment by the NYPD medical and pension boards based on her gender, because only male cops have been cited for getting infected in the line of duty.

In a motion filed this week to dismiss the suit, city lawyers discussed the circumstances of a dozen cops who applied for line-of-duty disability pensions citing HIV between Nov. 30, 1999, the date the HIV statute went into effect, and August 2007.

The statute affords any police officer who may have been exposed to the bodily fluids of an infected person – and is subsequently diagnosed with HIV – the presumption that the disease was contracted in the performance of his official duties.

Three of the four unidentified cops approved by the NYPD pension board were infected in the following ways, according to court papers:

– The first officer submitted to the pension board documents indicating that on June 1, 1989, he “reached into a perpetrator’s underwear to retrieve drugs.”

– The second cop was bitten on the hands by an HIV-positive perpetrator on May 7, 1993.

– The third sustained a cut on his left thumb from a razor blade while frisking a suspect.

No details are provided for how the fourth cop was allegedly infected, but he was retired Officer Jane Doe’s ex-boyfriend and the father of her daughter, the court papers state.

Jane Doe, along with one other female officer – and the remaining six male cops – were granted ordinary disability pensions because they had not documented any possible exposures while on the job.

The city contends Jane Doe was infected through sex with her cop ex-boyfriend.

“The city rewrote the statute requiring her to ‘prove’ that she contracted the condition through police work,” said Jane Doe’s attorney, Eric Sanders.

UK: Developing guidance for HIV prosecutions: an example of harm reduction?

I’m including an excerpt here – the conclusion, actually – of an excellent article by Yusef Azad of the National AIDS Trust, in the July issue of the HIV/AIDS Policy and Law Review, published by the Canadian HIV/AIDS Legal Network, which describes the way the HIV sector managed to successfully intervene and manage the harm of criminal prosecutions in England & Wales for ‘reckless’ HIV transmission following an initial period of shock and panic.

By persuading the Crown Prosecution Service (CPS) to consult with the community on the production of a policy statement, as well as legal guidance for prosecutors and caseworkers in this area of law, he argues that this was pragmatic ‘harm reduction’. Certainly, the process has resulted in a much higher burden of proof of transmission and guilt, and there have been no successful prosecutions since an African migrant living in Bournemouth pleaded guilty in January 2007.

Since then, three cases have been dismissed by a judge in pretrial hearings, including two gay cases (in Preston in April 2007 and Cardiff in May 2008) and one heterosexual case (in Manchester in October 2007). These prosecutions all failed because the men had the same informed solicitor who successfully argued that the CPS failed to provide uneqivocal proof that the defendant, and only the defendant, could have, in fact, infected the complainant(s). Although the CPS guidance was only published in March 2008, even the existence of draft versions was enough to persuade the judge in the earlier two cases.

The full article, ‘Developing guidance for HIV prosecutions: an example of harm reduction?’, can be found here.

Judging success depends a lot on one’s initial expectations. The CPS were not in a position to end prosecutions for reckless transmission or disagree with the interpretation of the OAPA 1861 as set out by the Court of Appeal.

What they could do — and what they did do — was consider in greater depth, and on the basis of detailed evidence, what is required to prove responsibility for infection, knowledge, recklessness and appropriate use of safeguards. An informed understanding of these elements has, even in the context of current criminal law, resulted in fewer and fairer prosecutions.

As the CPS says in its Policy Statement, “[O]btaining sufficient evidence to prove the intentional or reckless sexual transmission of infection will be difficult … accordingly it is unlikely that there will be many prosecutions.” Therefore, we should consider this to be a successful example of policy intervention as harm reduction.

It was not without its risks. Success was due to a number of factors, not least of which was a CPS that was already committed to taking seriously the concerns and experiences of affected communities when considering prosecutions in socially sensitive areas of law.

Some jurisdictions will not have such an enlightened prosecution service, and so the HIV sector will need to start further back in terms of engaging with the authorities. But it may be possible, even given the different legal contexts of different countries, to use the CPS Guidance to help bring about improvements in practice elsewhere.

The process was helped immensely by the commitment from an extraordinarily wide range of partners within the HIV sector, encompassing NGOs, academics, clinicians, virologists and, above all, people living with HIV.

Although harm may be reduced, it has not been ended — prosecutions for reckless HIV transmission remain and will continue. There is an urgent need to restate the ethical and policy case against such prosecutions and to consider freshly how and when we might engage with political decisionmakers on this issue.

Canada: Another Ontario man accused of HIV exposure

A 24 year-old migrant has been arrested in a suburb of Toronto accused of aggravated sexual assault because he did not disclose his HIV status to a 21 year-old woman with whom he had consensual sex earlier in the year.

Although bloggers suggest the man is from Ethiopia, this is not clear in the Canadian reports, of which the one from CityNews is typical, which appear to be based on a police press release ‘fishing’ for more complainants.

Man Accused Of Knowingly Spreading HIV To Woman
Tuesday June 24, 2008
CityNews.ca Staff

A 24-year-old Brampton man is charged in a terrible case of aggravated sexual assault. But it’s what police say Yonatan Gezahegne Mekonnen didn’t tell his alleged 21-year-old victim that has cops worried.

Police contend the couple engaged in consensual sex back in January and February of this year, and that the accused was well aware that he was HIV positive at the time of the encounters – but never told the woman.

They accuse him of exposing her to the disease despite knowing he could easily pass it on to her – and by extension anyone else she may have been seeing. He was arrested on Thursday on two counts of aggravated sexual assault and made a court appearance last Friday.

But now cops are worried that other young women may have fallen under his spell and been exposed to the dangerous virus. They’re looking to speak to anyone who has had contact with Mekonnen in more than a casual way.

If you think you may have crossed his path, call the Peel Police Special Victims Unit at xxx-xxx-xxx or anonymously to Crime Stoppers at xxx-xxx-xxx.