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.

UK: Long-awaited guidelines for prosecuting criminal HIV transmission published

It has taken a year longer than anticipated, but the Crown Prosecution Service for England & Wales has finally published their policy on prosecuting criminal HIV transmission.

Thankfully, the document bears almost no relation to the draft version originally published in September 2006 , following consultation with HIV experts and advocates.

Naturally, then, a (right wing) think-tank quoted in the (right wing) Daily Mail believes the CPS is being too lenient.

Dr David Green, of the Civitas think-tank, warned that the new rules would encourage risky behaviour among those with HIV.

“Someone who has sex in those circumstances is subjecting the other person to a potentially deadly illness and to suffering over a long period of time,” he added.

“These rules are too lenient, and they will lead people to think they will not be prosecuted.”

On the other hand, my story for aidsmap.com, includes criticism from academic and practicing lawyers who think the guidance is wishy-washy (HIV is never mentioned by name), vague (condoms are never mentioned by name) and fails to elucidate any further on the real question we all really, really want to know: under what circumstances is someone likely to be prosecuted for reckless HIV transmission?

The Daily Mail story, and my aidsmap story, are below (for balance).

Interestingly, the Daily Mail changed its story (the original is now gone forever, sadly) within hours of its publications from being quite surprisingly balanced, to one that seems to wish the CPS guidelines had changed the law and made all unprotected sex by HIV-positive people a criminal act. I should also warn that if you click on the link to the Daily Mail website, you will see one of the most offensive (and laughably reactionary) comments I’ve ever read.

HIV carriers could escape jail for passing on infections to others
By STEVE DOUGHTY
Last updated at 10:47am on 15th March 2008

Anyone deliberately infecting a sexual partner with HIV through a one-off encounter should not be charged with a crime, prosecutors ruled yesterday.

A single sexual incident will not count as evidence that they have deliberately tried to infect their partner with the virus, the Crown Prosecution Service said.

Cases of intentional or reckless transmission of sexual infection will only be brought against those who have infected a series of partners, or have infected one partner during a period of regular risky sex.

The rules were set out to clarify the law on reckless infection and to guide prosecutors on how to deal with a crime that can lead to a life sentence for those convicted.

They also said that those accused of reckless HIV infection are themselves “victims”, because they suffer from a devastating condition.

Eleven defendants have been taken to court in England for transmission of the Aids virus.

Ten of the cases ended in a conviction. Defendants are charged with causing grievous bodily harm under the 1861 Offences Against the Person Act.

The first person to be jailed for infecting partners was given eight years in 2003 for infecting two women.

The sentence on Mohammed Dica, a married father-of-three, was cut to four and a half years after a re-trial found that he had deliberately infected only one woman.

The guidance, set out in a CPS policy document, said it would be necessary to prove a “sustained course of conduct” in order to find a defendant guilty – in other words a single sexual encounter does not amount to a crime.

“It will be highly unlikely that the prosecution will be able to demonstrate the required degree of recklessness in factual circumstances other than a sustained course of conduct during which the defendant ignores current scientific advice regarding the need for and the use of safeguards, thereby increasing the risk of infection to an unacceptable level,” it said.

The document also said: “We appreciate too that those who are defendants in these cases may be seen as victims themselves, as they also have the infection that they are alleged to have transmitted to another person.”

The statement set out a series of other reasons for prosecutors to be cautious before bringing charges.

Those newly told that they have an infection could be in a state of shock or might not have fully understood the diagnosis.

Prosecutors were told that someone who spread a sexual infection could also have a defence to a charge if the victim knew of their infected status.

The Director of Public Prosecutions, Sir Ken Macdonald, said: “Although these types of cases are rare, we are publishing this statement because we recognise the importance of consistent decision-making. We hope that it provides clarity.”

Dr David Green, of the Civitas think-tank, warned that the new rules would encourage risky behaviour among those with HIV.

“Someone who has sex in those circumstances is subjecting the other person to a potentially deadly illness and to suffering over a long period of time,” he added.

“These rules are too lenient, and they will lead people to think they will not be prosecuted.”

Guidelines on prosecuting criminal HIV transmission for England & Wales finally published
Edwin J. Bernard, Wednesday, March 19, 2008

Last Friday, the Crown Prosecution Service (CPS) for England and Wales published its long-awaited policy statement and legal guidance for prosecutors for cases involving the intentional or reckless sexual transmission of serious infection.

Although the policy statement (which can be read here) and legal guidance (which can be read here) have generally been welcomed by the two major HIV policy organisations, because they clarify some of the uncertainties that have surrounded prosecutions for reckless HIV transmission, some legal experts say the documents are vague – for example, neither HIV nor condoms are specifically mentioned – and leave important questions unanswered.

The CPS issued the first draft of its policy statement in September 2006. Following widespread criticism of both the policy and CPS’ lack of understanding regarding issues of harm, transmission and the relationship between scientific evidence and causation, the policy went back to the drawing board, missing its original February 2007 deadline.

“We have consulted widely on the development of this policy statement and have benefited substantially from listening to the views and concerns of others,” the latest CPS policy statement notes. “We have greatly appreciated their input; however, the content of this policy statement is the responsibility of the CPS alone.”

“We are publishing this statement because we recognise the importance of, and the need for, consistent decision-making,” it continues. “We also recognise the potential tension between public health and criminal justice considerations. However, the criminal law exists in part to protect those who are the victims of unlawful conduct by others, including through the unlawful transmission of sexual infection.”

Of note, the guidance does not specifically mention HIV, although all thirteen prosecutions that have taken place in England & Wales since 2003 have been for reckless HIV transmission.

What is clarified?
Two national HIV policy organisations, Terrence Higgins Trust (THT) and the National AIDS Trust (NAT) have already published documents providing initial, brief explanations of how the CPS policy may apply to reckless and intentional HIV transmission. (The THT document can be downloaded here, and the NAT document can be downloaded here.)

In short, the policy clarifies that:

Prosecutions are likely to talk place within relationships, and not as a result of one-off sexual encounters. “It will be highly unlikely that the prosecution will be able to demonstrate the required degree of recklessness in factual circumstances other than a sustained course of conduct during which the defendant ignores current scientific advice regarding the need for and the use of safeguards,” it says in the legal guidance for prosecutors.

Scientific evidence must be used to show that the defendant infected the complainant, but that this evidence alone cannot conclusively prove the responsibility of the defendant for the complainant’s infection. “The prosecutor will need to be satisfied that the complainant did not receive the infection from a third party or that the complainant did not infect the defendant,” it says in the legal guidance for prosecutors. “This means that the prosecutor will need to know about any possibility which is compatible with the scientific evidence that the complainant was infected by a third party. This means enquiries will have to be made about the relevant sexual behaviour and relevant sexual history of the complainant.

The defendant has to have known they were infected when transmission took place to be convicted, although there are some other, very limited circumstances (termed ‘wilful blindness’ e.g. where someone has refused to test despite explicit clinical advice to do so because of symptoms) that could result in prosecution and conviction.

In order to be convicted, the CPS must prove that that the defendant understood that they were infectious to other people as well as understood how the particular infection is transmitted.

Informed consent of the complainant to the risk of HIV infection is a defence against a charge of reckless HIV transmission. Disclosure is one way of informing the complainant, but the CPS will allow for other possible ways in which the complainant might have been ‘informed’ of the defendant’s HIV status – whether from a third party, or a hospital visit, or from obvious symptoms of infection.

Consistent condom use is a defence against a charge of reckless HIV transmission. However, the word ‘safeguards’ is used, rather than condoms, because it appears that the CPS is trying to cover a wide range of differently transmissible conditions.

Transmission must take place for a recklessness charge. There is no crime of ‘attempted reckless transmission’. THT says it has “seen a number of cases where local CPS officers have tried to bring non-existent charges, mainly of ‘attempted recklessness’, which is clearly nonsense. All such cases have foundered upon reaching court. It is very helpful that the CPS have stated clearly that this is not appropriate. However, it is possible to bring a charge of attempted intentional transmission, and there is no defence of consent available in charges of intent. To date, nobody has been successfully prosecuted for intentional transmission.”

Positive responses
The CPS policy document says in its conclusion that, “cases involving the intentional or reckless sexual transmission of infection may raise very difficult and highly sensitive issues. We recognise that obtaining sufficient evidence to prove the intentional or reckless sexual transmission of infection will be difficult and that accordingly it is unlikely that there will be many prosecutions.”

Both THT and NAT – who along with the African HIV Policy Network, the British HIV Association, Positively Women and the (now defunct) UKC – were consulted on the policy document, cautiously welcome its publication.

“For years now we have seen huge variations in how justice has been administered in this area of the law. This has caused problems for police, courts and people caught up in prosecutions.” said THT’s Head of Policy, Lisa Power. “The new CPS guidance will go a long way towards removing confusion, cutting the most inappropriate investigations short and clarifying where people with HIV and other STIs stand if they transmit them.”

NAT’s Chief Executive, Deborah Jack, notes that, “this new guidance from the CPS is helpful in clarifying the prosecution process. The level of evidence needed to prove intentional or reckless sexual transmission of infection has rightly been set very high and it is unlikely that there will be many prosecutions. However whilst prosecutions continue the National AIDS Trust will work to ensure the best possible advice is available to prosecutors, lawyers, police, support organisations, healthcare workers and people living with HIV.”

‘Disappointing’ and vague
However, academic lawyer, James Chalmers, Senior Lecturer at the University of Edinburgh School of Law, says that, “it’s disappointing that the CPS are too coy to use the word ‘condom’ in the document… In terms of intelligible public guidance it leaves a lot to be desired.”

He also criticises the document for leaving the most important question unanswered. “Aside from acknowledging the importance of scientific evidence, I don’t think the document takes us much further forward,” he tells aidsmap.com. When you strip out the guidance as to what the law is, you’re not left with very much of a guide as to when the law will be used. The difficult question was always ‘when will the CPS consider it in the public interest to prosecute?’ and that question is left unanswered.”

And defence lawyer, Khurram Arif, of London solicitors, Hodge Jones & Allen, who has successully defended three clients against reckless HIV transmission charges, notes that, although “it is encouraging to see that the guidelines actually specify that scientific and medical evidence should be gathered as part of the investigation,
I think the CPS will always get stuck on the point of causation.”

In addition, both THT and NAT admit they are disappointed with various parts of the guidance. “The CPS are less clear about condom breakage during sex. THT believes it should be an adequate defence, if a condom is found to have broken during sex and HIV transmission occurs as a result, for the defendant to have promptly advised their partner to get PEP. We will be pressing for further clarity on this.”

Yusef Azad, NAT’s Director of Policy and Campaigns, also tells aidsmap that he is disappointed that “there is no definition of what constitutes reckless behaviour in relation to HIV transmission. In some ways this could be a good thing [because] at least we don’t have an incorrect or unhelpful definition. But the CPS leave it instead to individual clinicians to advise in each case with a worrying possibility of inconsistent approaches and clinicians simply rehearsing their own ethical opinions rather than providing obejective expert advice.”

Finally, it should be noted that the CPS only become involved once a case has been investigated by the police, and that so far there is no guidance for the police in this area. Khurram Arif points out that in his experience, “I have not come across many [police] officers who are familiar with any CPS guidelines.”

However, both NAT and THT plan to work with the Association of Chief Police Officers to help create a more unified – and better-understood – criminal justice system policy now that the CPS guidance has been published.