US: Positive Justice Project releases a set of principles to guide modernisation of state criminal laws

Today, in the wake of recent court decisions rejecting several applications of the criminal law to people with HIV, the Positive Justice Project (PJP) , a national coalition challenging HIV criminal law policies in the United States, released a set of principles to guide the modernization of state HIV criminal laws across the country.

“Ending criminal prosecutions based on HIV or other health conditions is a vitally important part of a sound, public health approach to ending the epidemic,” said Kim Miller of the HIV Medicine Association (HIVMA). “Treating a medical condition as evidence of a crime is at direct odds with public health campaigns to get as many people as possible tested and, if HIV positive, into treatment,” added Ms. Miller. “That is the best way to protect everyone, since treatment keeps people healthy while reducing already low transmission risks to near-zero.”

Currently, 32 states have criminal laws that punish people living with HIV for conduct that would be legal if they did not get tested and did not know their HIV status. Conviction under these laws can result in decades-long prison sentences despite very low transmission risks and dramatic improvements in treatment that have transformed what it means to live with HIV.

Carole Treston of the Association of Nurses in AIDS Care (ANAC) confirmed, “On treatment people living with HIV can expect to live long and healthy lives. It’s time for the law to catch up with the science on the real risks and realities of HIV in the twenty-first century.”

The Guiding Principles for Eliminating Disease-Specific Criminal Laws call for modernization of existing laws that exclude HIV and other infectious diseases from long-established interpretations of criminal felony laws requiring proof of intent to harm accompanied by conduct likely to cause death or severe injury for a conviction. At present, most states require only evidence that a person has been diagnosed with HIV and has engaged in some form of contact with a third party for a felony conviction and, in some cases, life-long sex offender registration.

In 2014, the U.S. Department of Justice issued the Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors; and in 2013 the Presidential Advisory Council on HIV/AIDS (PACHA) issued a Resolution on Ending Federal and State HIV-Specific Criminal Laws, Prosecutions, and Civil Commitments. A growing number of political, legal, public health and advocacy organizations also have called for the modernization of HIV laws.

“Both HIV and the prison system have a disproportionate reach into communities of color,” stated C. Virginia Fields, Director of the National Black Leadership Commission on AIDS. “Laws that make an HIV test the basis for a felony prosecution are a double burden for those at greatest risk of both HIV and entanglement in the criminal justice system. We need to end this yesterday, and we need to do it right. These principles are a great step in the right direction.

US: Rhode Island politician wants the state to consider new unscientific, stigmatising HIV non-disclosure law

State Lawmaker Targets People With HIV With Bill To Criminalize Exposure” by Zack Ford

Rhode Island state Rep. Robert Nardolillo (R) has introduced a new bill ( H 5245) that would criminalize exposing individuals to HIV without disclosing a positive status. Rhode Island is one of only 13 statesthat does not have such a law, but efforts are underway to roll back many of those other laws, which were passed when the virus was not as well understood as it is today.

Currently, Rhode Island does have a law that makes it a misdemeanor to expose another person to any sexually transmitted disease (STD), punishable by up to three months in jail and a fine of up to $100. Nardolillo told ThinkProgress that he doesn’t think this is appropriate for exposure HIV. “HIV is different. I put it alone,” he explained. “If this act happened, the penalty would be what?” According to his bill, it should be imprisonment up to 15 years and a fine up to $5,000.

A freshman legislator, Nardolillo openly discussed in his campaign that he was a victim of sexual assault as a minor and that he thus has “very strong views on sex offenders and the weak legislation that continually fails to protect those who are, have been, and will be victimized.” He noted that Rhode Island’s current laws offer “no penalty or enhancement” when STD transmission takes place during a sexual assault, though individuals can be punished for both. His new bill does criminalize when someone with HIV “forcibly engages in sexual intercourse,” but it also criminalizes when someone “knowingly engages in sexual intercourse with another person without first informing that person of his/her HIV infection.”

ThinkProgress confronted Nardolillo with studies that show that criminalizing HIV actually disincentivizes individuals from getting tested for HIV because they fear prosecution if they know their status is positive. As a result, the stigma against people with HIV increases and fewer people seek care for their HIV, which could increase their potential for transmitting the virus. “Have I read the research? I did,” Nardolillo confirmed, saying that he still felt that HIV was too serious not to prosecute in a distinct way.

ThinkProgress also asked Nardolillo about recent research showing that for HIV-positive people who have sought care and reduced their viral load to undetectable levels, it’s virtually impossible for them to transmit the virus to others. Should those individuals similarly be prosecuted for not disclosing their status? “I have no comment on that,” Nardolillo responded.

It was research about the risk of transmission that actually led the Iowa Supreme Court to overturn the conviction of a man who had been charged under that state’s HIV criminalization law last year. In fact, the Court said that, regardless of viral load, protected anal sex or unprotected oral sex are now known to carry such a minimal risk of transmission that they could not hold someone accountable for “risking” exposure when engaging in those activities. Nardolillo’s bill implicates any and all vaginal, anal, or oral sex with no qualifications as to whether protection is used.

Last year, Iowa became one of the first states to rescind its HIV criminalization laws, leaving penalties only for those who insidiously intend to transmit the virus. Though other states have not yet followed Iowa’s example, there is consensus among HIV/AIDS experts and advocates that they should. Both the Presidential Advisory Council on HIV/AIDS and the U.S. Department of Justice Civil Rights Division have recommended the repeal of state HIV criminalization laws. These laws, they argue, are not based on the medical evidence currently available and counter-intuitively increase stigma and interfere with prevention efforts, making it harder to fight the HIV epidemic, not easier.

The House Committee on the Judiciary will consider Nardolillo’s bill Tuesday afternoon. It currently has four other co-sponsors, but its prospects for passage are unclear.

US: Court of Appeals for the Armed Forces acknowledges per-act sexual HIV exposure risk, limiting future military prosecutions for HIV non-disclosure as aggravated assault

The US Court of Appeals for the Armed Forces (CAAF) has reversed the 2011 aggravated assault conviction (upheld by the US Air Force Court of Criminal Appeals in 2013) of Airman David Gutierrez for potentially exposing a number of sex partners to HIV at ‘swinger parties’, severly limiting the use of this law for future prosecutions in the US armed forces.

Gutierrez’s court-martial on the aggravated assault charge required prosecutors to prove several elements, including that the sexual activity – the “assault” – was deemed likely to produce death or grievous bodily harm.

The five judge CAAF panel’s unanimous ruling, published on Monday (and available in full below) examined the per-act risk of oral and vaginal sex with and without a condom (although there appears to be no discussion of viral load as a key modifier of these risks).

“The question in this case is not whether HIV, if contracted, is likely to inflict grievous bodily harm,” wrote Chief Judge James E. Baker. “The critical question . . . is whether exposure to the risk of HIV transmission is ‘likely’ to produce death or grievous bodily harm.”

In overturning the conviction, the court cited testimony from the prosecution’s medical expert, Dr. Donna Sweet, that in oral sex with or without a condom, the risk of HIV transmission is “almost zero” and HIV transmission through vaginal sex with a condom is only “remotely possible.”

She estimated that an HIV-positive man engaging in condomless vaginal sex with an HIV-negative woman would result in a 1-in-500 risk of the woman acquiring HIV, but deemed this to be at the “high end” of probabilities.

CAAF concluded that the prosecution had failed to prove that any of the acts were likely to transmit HIV.

“In law, as in plain English, an event is not likely to occur when there is a 1-in-500 chance of occurrence,” Baker wrote.

Although the decision – overturning a 25-year precedent that had allowed military personnel to be convicted of aggravated assault based solely on a positive HIV antibody test – was welcomed by advocates, another part of the ruling potentially opens the door to the use of a lesser charge – assault consummated by a battery – for future allegations of HIV non-disclosure.

An article in The Tribune quotes Catherine Hanssens, executive director of the Center for HIV Law and Policy, noting that at least part of the decision was “an important sign of progress” that should be “read and taken seriously” by civilian as well as military courts. But…

In a move called “curious” by Hanssens and “astonishing” by military law blogger Zachary D. Spilman, author of Blog-CAAFlog, the court cited only a Canadian court decision for support of the potentially far-reaching conclusion that lack of knowledge equals lack of true consent.

In fact, the Court cited the notorious Supreme Court of Canada’s 1998 Cuerrier decision (which led to HIV non-disclosure in Canada problematically being framed as a serious sexual assault).

This, notes Spilman, could be extremely problematic in future military cases. His opinion analysis concludes:

I think this an incredibly odd ending to a very interesting opinion. CAAF reaches to foreign law to invalidate the consent of Appellant’s sexual partners, while simultaneously rejecting the notion that it should distort the law to “fit a round peg of conduct into a square hole of a punitive statutory provision.” Ultimately, the court seems to have merely traded one distortion of the law for another.

It remains to be seen what impact this will have on future US civilian or military cases.

In December 2013, the US Senate passed the National Defense Authorization Act (fiscal year 2014) which aimed to reform the military’s HIV-related policies, including prosecutions for HIV non-disclosure, exposure and transmission. Although work is taking place behind the scenes, it’s unclear when this will have an impact on pending or future prosecutions or policy.

In the meantime, Gutierrez is currently serving eight years in military prison. His case has  been sent back to the Judge Advocate General of the Air Force for sentencing review.

The next HIV-related case likely to come before CAAF will be that of Lt Col. Ken Pinkela whose recent change.org campaign to review his unjust court-martial has over 73,000 signatures.

Since he was (falsely) accused of condomless anal intercourse when his viral load was extremely low – neither of which were discussed in this ruling – it remains unclear how this ruling will affect his case.

Read the entire CAAF decision below.

US v Gutierrez opinion and judgment (Feb 2015)

Spain: Supreme Court upholds nine year sentence for ‘reckless’ HIV transmission; BBC Mundo publishes analysis

Spain’s Supreme Court last week upheld a nine-year prison sentence for a man, known as ‘ABM’, who did not disclose his HIV-positive status to his former partner, who is now also living with HIV.  Although the reports do not state under which general law he was prosecuted, it is likely to be Article 149 of the Criminal Code, grievous bodily harm.

According to a recent analysis of all previous cases that reached Provincial or Supreme Courts (1996-2012), Article 149 has used for similar cases, using the ‘state of mind’ of ‘dolus eventualis’ similar to concept of ‘recklessness.’ The nine year sentence is similar to two previous cases for alleged HIV transmission during otherwise consensual sex in Spain. (Sixteen sentences and 9 writs belonging to 19 cases were included in the analysis; 17 judged by criminal and two by civil jurisdictions – full text at the bottom of the page).

The Court’s judgment, dated December 4, 2014 but published last week, noted that that  the Cantabria Provincial Court’s ruling was “sufficiently motivated” and dismissed ABM’s appeal which cited a violation of his right to the presumption of innocence and lack of credibility of his accuser, with whom he maintains a dispute over ownership of property.

The Supreme Court upheld the Provincial Court’s sentence of nine years in prison. He also has to pay his former partner compensation of 70,000 euros.

According to the judgment, cited in several Spanish language media reports (the most detailed of which was in 20 minutos), ABM was diagnosed in April 2000. In 2007 he began a romantic relationship with the complainant which lasted until 2012. It was alleged that ABM did not disclose to her that he was living with HIV despite having condomless sex. In 2011, she began to suspect that her partner may be living with HIV.

The Court found there was nothing to suggest that she was already HIV-positive when she arrived in Spain (from Peru), based on her own testimony, her medical history and her GP, although there is no mention of phylogenetic analysis being used to attempt to show a link between the viruses. The Court also noted that the woman is asymptomatic and on antiretroviral treatment.

BBC report and analysis

On Friday, BBC Mundo (the BBC’s Spanish language BBC World website) published a longer analysis of the implications of overly broad HIV criminalisation in Spanish-speaking countries.  I was interviewed for the piece, and am delighted to report that the journalist, Leire Ventas, produced a very good, balanced report.

Below is an approximate English translation of the Spanish language original.

Should knowing transmission of HIV be a crime?

January 30, 2015

A jail sentence in Spain rekindles debate over whether criminal law should apply to people who transmit the human immunodeficiency virus.Spain’s Supreme Court upheld the sentence of nine years in prison for a man who hid his HIV positive status from partner, infecting her with HIV.

The Court did not admit the appeal filed by the defendant.

This appeal had alleged violation of the right to presumption of innocence and lack of credibility of the victim, who maintains a dispute over ownership of a property.

According to the facts in the case, the convicted man was diagnosed HIV-positive in April 2000 and began a relationship with the woman in 2007.

They were together until 2012.

According to the Court, during those five years the defendant hid that he was HIV-positive from his partner and had sex without protection.

In 2011, woman began to suspect that her partner may have the virus and subjected to analysis, which confirmed infection.

“Intentional transmission”

Given this statement of facts, the Court found that the defendant had deliberately concealed his condition and that was the reason it upheld the ruling.

In the same vein, intentional transmission is the only case in which the Joint United Nations Programme on HIV / AIDS, UNAIDS, considers appropriate to apply the criminal law to people who transmit HIV or expose others to the virus.

“That is, when the person knows their HIV-positive serostatus and acts with intent to transmit or indeed does transmit,” says the report Criminalization of HIV Transmission, 2008 and its revision in 2013 the agency told the BBC.

“If a person known to be HIV-positive acts with the intention of transmitting the virus and transmits it (…), the damage justifies punishment,” it adds.

“In other cases, legislators, prosecutors and judges should reject the application of criminal law”.

Other cases

According to UNAIDS, the law should not apply to cases where there is no “significant risk” of transmission or where the person did not know they were HIV-positive, did not understand how HIV is transmitted, disclosed their status to the person at risk, or did not for fear of violence.

And neither should the law be used against someone who took “reasonable steps” of protection to reduce the risk of transmission or who previously agreed with the other person “a level of mutually acceptable risk”.

Thus, the agency recommends that governments legislate specifically to prevent HIV and only apply general criminal law to cases of intentional transmission.

They should also “develop guidelines to limit the discretion of the police and prosecutors in the application” of criminal law.

And UNAIDS believes that the latter creates “a real risk” of increasing stigma and discrimination.

“It is very likely that prosecutions and convictions fall on members of marginalized groups such as sex workers, men who have sex with men and people who inject drugs,” it says.

Obligation to disclose

For that reason, the agency also recommends repealing the legal obligation to disclose one’s HIV status or that of others, in the case of health workers, that exist in some countries.

“Everyone has the right to privacy regarding their health and should not be required by law to disclose such information, especially when it may cause serious stigma and discrimination and possible violence.”

It considers inappropriate to enact laws criminalising mother-to-child transmission of the virus.

“Everyone has the right to have children, including women living with HIV,” said UNAIDS.

It adds: “When pregnant women are advised on the benefits of antiretroviral therapy, almost all access treatment”.

The position of Edwin Bernard, co-ordinator of HIV Justice Network, a network of advocates providing information and international legal policy advice on HIV criminalisation, is not far from the recommendations of the UN programme.

“The only cases where it is appropriate to apply the criminal law is when there has been intent and these are usually very rare,” he tells the BBC.

He stressed that “not disclosing you have the virus, and keeping it a secret is not the same as wanting to spread it.”

There are several reasons not to tell, according to the activist: stigma, violence, even denying the condition itself.

Awareness, not persecution

Therefore he believes that laws around HIV in countries should be aimed at raising awareness and support for the eradication of the disease, and not the prosecution.

Latin America is a region particularly aware of this, he says.

“It has a good record of understanding that with regard to HIV the law should support and not persecute”.

“There have been very few known cases of prosecution for HIV transmission in Latin America. Most have taken place in Brazil and under a general, not specific, criminal law”.

In Spain, by contrast, between 1996 and 2012, 19 legal [or civil] cases were recorded.

This is registered in the report Temporal trends, characteristics and evidence of scientific progress in legal complaints for alleged sexual HIV transmission: 1996-2012.

However, the country with the most prosecutions is the United States, where 30 states have specific legislation on HIV.

“After eight years following up the issue, I can say that judicial systems, prosecutors and judges do not understand how the science has advanced, how the life expectancy of those with the virus has increased. They should know that the risk of transmission is very low “, says Bernard.

For the activist, the ideal situation would be to only have one or two lawsuits per year related to the topic.

“The law should be used, for example, in cases of rape. But when sex is consensual and those involved are aware of the risks, responsibility should also be shared.”

 

F. Bolúmar-Montero, M.J. Fuster-Ruiz de Apodaca, M. Weait, J. Alventosa & J. Del Amo (2015) Time trends, c…

Australia: Western Australia implements unscientific new law mandating HIV and hepatitis testing for spitting at, or biting, cops

Spitters and biters beware.  From January 1 anyone caught biting or spitting at a police officer in Western Australia will be ordered to undergo blood tests for infectious diseases.

The new law, coming in at midnight on the busiest night of the year, has been introduced to streamline the testing process for officers who are injured by a potentially infected offender.

WA Police Minister Liza Harvey said officers’ concerns would be eased by immediately testing the blood of an attacker for infectious diseases.

“Previously a police officer has had an agonising three to six-month wait before they get results from their own blood testing to confirm if they have contracted a disease,” she said.

“So for those people who do decide to get on the wrong side of police and decide to bite them or spit at them we will be compelling those offenders to provide a blood sample.

“They [police] will have an idea of whether they’ll have contracted HIV or hep C or hep B and we can give the police officers peace of mind early in the piece as to whether they’ve been exposed to those diseases. ”

Ms Harvey said 147 police in 2013 were exposed to bodily fluids in a way that they could contract an infectious disease.

“This legislation will allow for the taking of blood samples from the offender which helps in diagnosis, clinical management and treatment of the exposed police officer,” she said.

She said the testing would only take place if transfer of an infectious disease, such as bodily fluid through broken skin, was possible.

“We are deeply committed to protecting our officers on the frontline, who are committed to protecting us,” Mrs Harvey said.

Under the new law, approval for the blood test must come from an inspector or higher rank and a court order is needed if the offender is a child or is impaired.

Test will check for HIV, hepatitis B and C.

Uganda: HIV Prevention and Management Act should be seen in context with Anti-Pornography Act, Anti-Homosexuality Act and Narcotics Law says OSF

On November 20, Uganda’s parliament passed the Narcotic Drugs and Psychotropic Substances (Control) Bill, also known as the Narcotics Law. A draconian piece of legislation, the law purports to deter drug abuse by imposing inhumanely long prison sentences-a conviction for simple possession can land a person in a cell for 25 years.

Nepal: Draft criminal code prohibiting infectious disease transmission singles out people with HIV and hepatitis B

Lawmakers in Nepal are considering a draft law that singles out people with HIV and hepatitis B, contrary to recommendations from UNAIDS and the Global Commission on HIV and the Law.

According to the draft text, tweeted by IRIN Humanitarian News reporter Kyle Knight, Article 103 ‘Prohibition of transmission HIV’ of Chapter 5, Offenses against Public Interest, Health, Safety, Facilities and Morals, criminalises people who are “aware of knowledge of one’s own positive HIV or Hepatitis B status”, who “purposefully or knowingly commit acts that would transmit Hepatitis B or HIV, give blood or coerce to give blood or come into sexual contact without precautionary measures in place, or cause entry of blood, semen, saliva, or other bodily fluids into the body of another.”

 

There are two levels of mens rea (state of mind) for such acts.

If it is “determined that the offender has purposefully or knowingly committed such an offense” the penalty is “up to 10 years of incarceration” and a fine up to 100,000 Rupees (approx. US$1000).

“However, if determined that the transmission occurred without intent to purposefully transmit or determined that the transmission occurred out of carelessness it shall be punishable by up to 3 years of incarceration and” a 30,000 Rupee (approx. US$300) fine.”

If the complainant has “knowingly initiated sexual contact with someone with [a] positive HIV or Hepatitis B status out of their own volition, such an act shall not be considered an offense.”

Given that article 102, ‘Prohibition of transmission infectious diseases’ already criminalises anyone who should “commit acts that could endanger the lives of others through the transmission or the potential transmission of infectious diseases” it is unclear why people with and HIV and hepatitis B are singled out, unless it is to provide a consent defence, which is not allowed in article 102.

In addition, article 102 provides for three levels of mens rea: “purposefully or knowingly” (with a penalty of up to 10 years of incarceration and a Rs. 100,000 fine); “negligently or irresponsibly” (up to 5 years of incarceration and a Rs. 50,000 fine); and “carelessly or recklessly” (up to 3 years of incarceration and a Rs. 30,000 fine).

Guidance from UNAIDS recommends that the only state of mind that may warrant criminal prosecution for alleged HIV transmission is malicious intent, and that HIV should never be singled out for special treatment. 

It is unclear how a court (or the police or prosecutors) would be able to differentiate between the various states of mind outlined in this draft law.

And whilst it could be seen as a positive step to allow for a consent defence, the law is far too vague and broad in terms of defining the acts that “would” risk HIV exposure or transmission, potentially criminalising all sex (including kissing and oral sex) by a person living with HIV unless their partner consented, even if no exposure was possible and/or no transmission is alleged to have occurred.

This would result in people living with HIV or hepatitis B being vulnerable to arrest and prosecution which would increase stigma and make it more likely that testing, treatment and beneficial disclosure would not take place.

HIV advocates in Nepal are currently responding to the draft law by sensitising parliamentarians to the notion that such laws do more harm than good to public health.

Nepal Draft HIV/Hepatitis B Criminal Law

Sweden: Supreme Court refuses to rule on treatment’s impact on HIV risk even as a second Court of Appeal judgement recognises latest science

Last week, Sweden’s Supreme Court announced that it would not grant leave to appeal in a case where the prosecution had appealed an acquittal from Court of Appeal regarding a man living with HIV, on successful antiretroviral therapy, who had unprotected sex with several women none of whom were infected.  Instead, it cited its 2004 ruling stating that only sex with a condom can prevent a prosecution for ‘HIV exposure’ (as reckless endangerment).

The Swedish Prosecutor’s office notes that

“The Supreme Court’s decision means that the Court of Appeal’s acquittal

cannot be considered indicative. Instead, the Supreme Court judgment of

2004 is still indicative. The legal situation has not changed.”

Advocates are extremely unhappy. Although lower courts can still take notice of ‘Risk of HIV transmission from patients on antiretroviral therapy: A position statement from the Public Health Agency of Sweden and the Swedish Reference Group for Antiviral Therapy‘ (aka the ‘Swedish statement’) in future trials for people with HIV on successful treatment, this was a lost opportunity to modernise the application of the law from the highest court in the land.

An editorial by Oisín Cantwell in Monday’s popular newspaer, Aftonbladet, spelled out exactly what this means.

The fear of AIDS will survive 

The Supreme Court had a chance to make up with the judiciary outdated

views on HIV. But a new decision means, unfortunately, that people

will continue to be convicted of crimes they did not commit.

The Court of Appeal for Skåne and Blekinge last year acquitted a man

living with HIV and who had had unprotected sex with four different

women [all of whom] did not become infected.

The district court had sentenced him to one year in prison, but the

Court of Appeal brought in the opinion of the [Swedish] Centre for

Disease Control and allowed a professor to testify.

According to both the CDC's expert statement and the professor,

the [HIV transmission] risk during vaginal sex is very low.

The Court of Appeal found that since the man was well-managed on

medication  "the probability that the intercourse to which the charge

relates would result in the transmission of HIV was so small that

no real danger can not be considered to have existed."

Thus, there was not any crime.

Courageous verdict

The verdict was courageous and progressive: the lawyers listened to

some of the world's most skilled and knowledgeable researchers

in the field and took a decision that could lead to scientific

criteria forming the basis of when prosecutions should be instituted

in cases related to HIV.

The Prosecutor appealed to the Supreme Court to see if it would

stand up and be the guide. Now the Supreme Court's curt decision

has been reached, the case is not addressed. This means on one

hand that the Court of Appeal's ruling is upheld.

The man is innocent.

But the Supreme Court writes, in addition, that a ruling from

2004 still applies in practice.

Very unfortunate

That case concerned a man who had had a significant number of sex

with ten men [all of ] whom were not infected. He was sentenced

to one year in prison for reckless endangerment.

That this judgment will in the future be the guiding principle

is very unfortunate. It was reasonable when it was delivered,

but in the ten years that have passed since then, research has

made great progress.

Today's medicine allows those living with HIV on successful

treatment are simply not infectious. In addition there is now

much better knowledge of the risks than then.

In other words, its no sensation that Jan Albert, Professor of

Infectious Disease at the Karolinska Institute, is surprised

that the Supreme Court still drags out the old judgment.

The consequence: stigma remains 

What, then, will be the consequence of the decision?

The 1980s horror of AIDS will live on in the courtrooms

and help maintain the future stigmatisation of those with HIV.

It is perfectly understandable that people become terrified

when they find out that they have had unprotected sex with

someone with HIV.

But this fear that is based on ignorance.

No need to disclose

In its recommendations, the National Board writes that a doctor

can now make their own judgment about whether their patient need

to inform their [sexual] partner that they are living with the virus.

Of course it will still be a crime to not adhere to treatment and,

therefore, expose others to risk. But those who take their HIV

seriously, which a substantial majority do, for obvious reasons,

do not commit a crime when they have sex.

That people may be sent to jail for something they have not

done wrong is deeply offensive.

Something tells me that the judgement also means that

the huge amount of legitimate international criticism that

has been leveled against Sweden, as one of the countries with

the greatest zeal for HIV-related crimes, will not end.

Stockholm Court of Appeal finds successful treatment grounds for acquittal

However in June, the Stockholm Court of Appeal found that a woman living with HIV could not be held criminally liable for reckless endangerment when she was on successful antiretroviral treament.  Instead they sentenced her probation and a 5000 kronor (€550) fine for reckless endangerment for having condomless sex with a man (who was aware of her status).

The ruling was reported in Allt om juridik on June 11th.

An HIV-positive woman indicted for repeated unprotected sex

with a man was acquitted entirely in the District Court.

A divided Court of Appeals has now made a somewhat different

assessment, sentencing the woman to probation and a fine.

A man reported a woman to the police and claimed that she had

unprotected sex with him without telling him that she was infected

with HIV. The woman was charged with attempted aggravated assault

as well as reckless endangerment.

At the trial the man changed his mind and said that he knew about

the woman's HIV infection before the first sexual intercourse,

but made a police report because of jealousy.

The District Court noted that during the unprotected intercourse

there had been some, but not significant, risk of HIV transmission.

The Court also found that the defendant "harbored warm feelings"

for the man, supported by the fact that she completed intercourse,

trusting that any transmission of infection would not happen.

Therefore, it was not established that the woman had the

intent to transmit HIV infection, and the indictment for

attempted aggravated assault was dismissed.

Regarding the prosecution for reckless endangerment the District

Court held that the consent had an exonerating effect because the

risk of infection had not been as high. The Court stated that

the question of exonerating consent existed to be judged

by the severity of the risk and the risk that the danger would

be realised. The Court found that HIV infection is a very

serious disease. Unlike the District Court, the Court considers

that the risk of infection in this case was so high during

the period when the woman was untreated for HIV infection,

1 in 1000 through unprotected sexual intercourse, that the consent

did not have an exonerating effect. After the time woman began to

take antiretrovirals, there was a decreased risk of infection,

however, so that the consent could be deemed to be exonerating.

The woman sentenced thus for reckless endangerment only for the

period when she was not on antiretroviral drugs. The penalty

was determined to be probation and a fine.

Malawi: Delay in presenting draft HIV/AIDS bill to Parliament over "contentious" statutes that would criminalise 'wilful' HIV transmission and mandate HIV testing for pregnant women

Lilongwe – In a bid to address some contentious issues in the draft HIV and AIDS Prevention and Management Bill, Capital Hill has said it will not submit the bill to Parliament during the September meeting as was expected. Instead, Secretary for HIV/AIDS and Nutrition, Edith Mkawa said the bill will be presented during the next sitting of parliament.

Speaking to Malawi News Agency (Mana) on the sidelines of a Malawi Network of People Living with HIV/AIDS-MANET+ policy dialogue dinner meeting with parliamentarians on Wednesday, Mkawa said the draft bill was currently at the Ministry of Justice.

She said officials in her department would on Thursday, September 4, dialogue with their counterparts from the justice ministry on certain provisions before the bill is finally sent to the Cabinet and then parliament.

“There are legal issues like the criminalization of deliberate HIV transmission and mandatory testing for pregnant women that should be carefully addressed because they border on the rights of an individual. It is therefore important that we address them before we can comfortably say the bill is ready,” she said.

The PS also noted that most Members of Parliament needed to have adequate information before they deliberate on the bill in parliament.

“Most of these MPs are new and need to have as much information as possible, so we will be engaging them and various stakeholders so that we are on the same page. So, we will not be sending it to parliament now, it has to go through all the processes, ” added Mkawa.

Board Chairperson for MANET+ Joyce Mataya said the bill was one of the remedies that would effectively support the HIV response in the country.

“MANET+ has seen great improvement on the review process which led to some contentious provisions being removed and others revised. For instance if you talk about mandatory testing, and if I declare my status, how are people going to treat me?”

Mataya added, “There will be a lot of stigma and discrimination. So we need to create an environment which is friendly for this process. Any HIV testing should be by informed and truly voluntary consent; Similarly disclosure of HIV status to relations and partners should be at the discretion of the person living with the virus. ”

And, chairperson for the Parliamentary Committee on HIV/AIDS and Nutrition, Deus Gumba said they were ready to pass the bill once presented in parliament.

The HIV and AIDS Prevention and Management Bill was developed by the Malawi Law Commission-MLC in 2008 to among others, provide an institutional framework for effective regulation of the prevention and management the HIV and AIDS epidemic in Malawi.