Angola: Criminal HIV transmission laws under consideration

Angola’s government is considering a new law criminalising ‘intentional’ HIV transmission, according to a report from PlusNews, a UNAIDS-funded HIV/AIDS news and information service for sub-Saharan Africa.

ANGOLA: Should intentional infection be a crime?
LUANDA, 26 May 2008

Proposed reforms to Angola’s Penal Code have divided opinion in the country about whether HIV-positive people who intentionally infect others with the virus should be punished.

The law under discussion calls for a sentence of between three and 10 years in prison for those knowingly pass on infectious diseases, including HIV. Some argue that the law will act as a deterrent; others say it will bring more problems than benefits.

“Criminalisation is going to backfire. It goes against human rights and the fight against discrimination, and it won’t prevent intentional infection,” Roberto Brandt Campos, a coordinator with UNAIDS in Angola, told IRIN/PlusNews.

UNAIDS and the World Health Organisation voiced their opposition to such a measure being introduced anywhere in the world in a document released in 2007, saying that it represented a step backwards in HIV prevention efforts.

This is not the first time such a law has been tabled in Angola: the country introduced legislation relating to HIV and AIDS in 2004 but a measure calling for the criminalisation of purposeful infection was among those not included.

Victim and executioner

According to Campos, one of the main difficulties with such a law is determining the intention to infect. In his view, proving transmission from one specific individual to another is already difficult, and proving that an infection was intentional even more so. “Transmitting the virus out of negligence is different from transmitting it in on purpose,” he stressed.

Carolina Pinto, an activist with the non-governmental organisation Luta pela Vihda (Fight for Life in Portuguese), believes those who infect their partners on purpose should be punished, but acknowledges that the line between negligence and intention is a thin one.

“Doing it on purpose is different from not telling, but those who have the virus must accept their condition and protect their partner’s life,” she said, adding that both partners should take some responsibility for protecting themselves.

Even so, Pinto, who is HIV positive, said there were some behaviours that suggested deliberate transmission. “If it happened once, okay; but if the person continues to practice unprotected sex even while knowing that he or she is infected, I think it’s on purpose,” she told IRIN/PlusNews.

In cases of sexual transmission, Campos worries that such a law would only deepen the damaging perception that people who contract the virus are victims and those who give it to them are their executioners.

“There is no such thing as a victim; people are the subjects of their own life stories,” Campos said. “Sex is a two-person relationship, in which responsibility is necessarily shared.”

In cases of mother-to-child HIV transmission, Campos said criminalisation could set a precedent for children to take their parents to court. He cited a case in Florida, in the United States, where a boy sued his mother for giving him HIV. “Parents will feel intimidated about revealing their condition. All this does is feed the chain of stigma and discrimination.”

Unintended consequences

In a country where people often don’t reveal their HIV-positive status out of a very real fear of rejection, Campos argued that criminalisation would only heighten such fears, and mentioned the example of an HIV-positive woman who became an activist and went public on television. The residents of her neighbourhood did not want their district to be shown in the television report.

“With this level of discrimination, how can you expect someone to have the courage to take the test and then tell their partner?” he said.

Criminalising intentional transmission could also have the unintentional affect of discouraging voluntary testing. “People are going to think: ‘if there’s a law that says I’m going to be penalised, it’s better not to know my HIV status’,” Campos said.

António Coelho, director of the AIDS Service Organisation Network (Anaso), believes a more practical approach to breaking the chain of HIV transmission is to counsel people on how to change their behaviour.

Fiji: Updated: Moral, legal panic after one man linked to two women’s HIV infections

Update: 28th April. There have been fewer than 260 HIV diagnoses in Fiji since records began (I originally quoted a source claiming fewer than 30), so it must come as something of a shock for Fijians to have to come to terms with the fact that an HIV-positive man is not disclosing his status before having unprotected sex.

The hunt is now on for a 33 year-old Fijian man who allegedly transmitted HIV to two women. The Fiji Times has published four stories since Friday covering the issue.

Update: 28th April. In fact, Fiji now seems to be hunting down six HIV-positive individuals.

Interestingly, according to one of the articles, reckless or intentional HIV transmission (or exposure) is not a crime in Fiji, although the transmission of HIV via shared needles is.

Police spokesman Corporal Josaia Weicavu said wilfully passing on the HIV virus had not been criminalized.

Police can only advise women in Labasa to be careful when engaging in sexual activity after health and police authorities mounted a search in recent weeks for a 33-year-old man of Labasa.

Consequently, Reverend Sekove Veisa, head of a Methodist church circuit, has “called for lawmakers to criminalise the wilful spread of the disease by anyone.”

Highlights of the four news stories from The Fiji Times are below, followed by a brief report from the Australian Broadcasting Corporation on the missing six.

Hunt for HIV man
SERAFINA SILAITOGA
Saturday, April 19, 2008

HEALTH authorities are on the hunt for a HIV positive patient who they believe is engaged in promiscuous sex and deliberately spreading the disease.

Acting general manager community health North Doctor Pablo Romanik confirmed the search for the 33-year-old Fijian man started early this month after two women who were admitted to the Labasa Hospital tested positive for HIV (human immunodeficiency virus).

Dr Romanik said what worried them was that the patient did not have a stable address and efforts to find him the past three weeks were unsuccessful.

“We are looking for this man to counsel him. The reason for our search is because he is the same man identified by his two ex-girlfriends who were admitted and tested HIV positive,” he said. “All we want to do is counsel him and help him. The fact that he does not have a stable address is of great concern because he could continue to have other partners and spread the disease.”

Dr Romanik said the second woman was admitted in January this year after health officials carried out a blood test on her which tested HIV positive.

He said they interviewed the woman who then told them about her partner who is a known HIV positive patient.

“That’s when we found out, and strongly believe, that she contracted the disease from him because he is a known patient who was tested positive in 2004 when he came to donate some blood to the hospital,” Dr Romanik said.

“The first case involved his other girlfriend who was also admitted last year and tested HIV positive. She also identified the same man as her boyfriend.”

Stop, HIV lover told

Sunday, April 20, 2008

THE head of a Methodist Church circuit has pleaded with a HIV patient being hunted by health authorities to stop infecting women.

And Reverend Sekove Veisa, who leads the Macuata circuit, called for lawmakers to criminalise the wilful spread of the disease by anyone.

[…]

Mr Veisa said the fact that the HIV positive man was deliberately infecting women was hard to fathom.

He said the church had a program that dealt with such issues as HIV and urged the man not to destroy lives.

Police assistant spokesman Corporal Josaia Weicavu said he had to clarify whether wilfully spreading the disease was a criminal offence.

Isolate HIV suspect
AMELIA VUNILEBA
Sunday, April 20, 2008
Update: 4:47PM

HEALTH authorities have the power to isolate people that have contracted HIV, police said today.

Police spokesman Corporal Josaia Weicavu said wilfully passing on the HIV virus had not been criminalized.

Police can only advise women in Labasa to be careful when engaging in sexual activity after health and police authorities mounted a search in recent weeks for a 33-year-old man of Labasa.

Acting general manager community health North Doctor Pablo Romanik said the search for the man started early this month after two women who were admitted at the Labasa Hospital tested positive for HIV.

The ministry has identified 28 HIV positive cases since 1995.

Of this, there is one case under the age of 20, 15 cases between the ages of 20 to 29, three cases between the ages of 30 to 39, seven between 40 and 49 and two cases over the age of 50.

Out of this, 40 per cent are males and 60 per cent females. Fijians top the list at 84 per cent, Indo-Fijians at 8 per cent and 8 per cent for other races.

No laws on HIV

Monday, April 21, 2008

WHILE there are no laws to charge people living with HIV and wilfully spreading the virus, the Ministry of Health has powers to isolate these people.

Police assistant spokesman Corporal Josaia Weicavu said the act of knowingly passing on the HIV virus was not a criminal offence yet.

“It’s not criminalised yet, however, the Ministry of Health has powers to isolate these people who have HIV,” said Cpl Weicavu.

He said people could be charged if they were caught passing on the virus through needle injections. However, this did not apply to transmission of the virus through sex.

Attempts were made to get comments from interim Health Minister Jiko Luveni.

[…]

Ministry of Health permanent secretary, Doctor Lepani Waqatakirewa, said health officials could search for HIV positive patients for counselling.

Fiji seeks missing HIV patients
Updated April 28, 2008 04:25:33

Fiji health officials are trying to find six people with HIV in the country’s northern division.

The Division’s acting Chief Medical Officer for Community Health told Fijilive there are 15 known AIDS cases on record in the north, but that health officials only have addresses for nine of those individuals.

The youngest known HIV patient in the North is a 20-year-old student in Labasa.

Fiji has reported 259 HIV cases since 1989, with more than 15 reported cases last year alone.

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.

Uganda: President Museveni calls for death penalty in criminal HIV transmission cases

President Yoweri Museveni has given a speech calling for the death penalty for anyone who is found guilty of Uganda’s proposed criminal HIV transmission laws.

“I am glad to learn that the parliamentary committee on HIV/AIDS is coming up with a law to punish people who deliberately infect others. I would advise that they be condemned to death by hanging,” he said, to murmurs from the crowds.

Museveni chided the residents for the lukewarm reception to his proposal of a death penalty. “I hear some of you have not welcomed this proposal; but why would one knowingly infect others,” he asked.

Article from Uganda’s Sunday Vision newspaper, below.

THOSE WHO SPREAD AIDS SHOULD HANG
By Cyprian Musoke

PRESIDENT Yoweri Museveni has called for death penalty for people who knowingly spread the HIV/AIDS virus.

He also called for the outlawing of primitive methods used by the Bagishu and Sebei in eastern Uganda of using knives for circumcision that are likely to spread the virus.

Speaking at the commemoration of 25 years since the first case was identified at Kasensero landing site in Rakai District on Friday, the President lauded the parliamentary committee on HIV/AIDS for coming up with the draft Bill.

“I am glad to learn that the parliamentary committee on HIV/AIDS is coming up with a law to punish people who deliberately infect others. I would advise that they be condemned to death by hanging,” he said, to murmurs from the crowds.

Museveni chided the residents for the lukewarm reception to his proposal of a death penalty. “I hear some of you have not welcomed this proposal; but why would one knowingly infect others,” he asked. “Even the Bagishu and Basebei, we also need to warn them against using knives to cut people left and right,” he said.

Reminiscing on the origin of Uganda’s AIDS realisation, Museveni said when the first case was reported in Kasensero in the 1980s, he called all the health experts who informed him that it is contracted from promiscuity and, not insect bites. “I felt relieved to hear that it is only transmitted through promiscuous sexual relationships. My biggest worry was that insect bites could transfer the virus. I was relieved when they told me it was through sex, because I knew that it would that way be easy to stop,” he said.

He said at the time there were only two places with testing equipment in the country: Nsambya and Lacor hospitals, upon which he directed that every hospital in the country get one. On realising the magnitude of the problem, Museveni said, he turned to political rallies to spread the anti HIV/AIDS gospel, because the messages the Ministry of Health was putting out were too frail.

He amused the audience when he recalled: “They were putting adverts on the radio saying, ‘Love carefully, zero grazing’. “I told them that is not loud enough,” he said while gesturing and rolling his eyes.

He thanked Parliament for recognising him and his wife Janet with plaques for their contribution.“I approached it as a soldier — when there is a problem we just attack it directly,” he said.

He recalled when retired Cuban President Fidel Castro called him aside on the periphery of the Non-aligned Movement in Harare and told him there was a big problem in Uganda. “I had sent 60 soldiers for training in Cuba, he told me they had checked them and found 18 of them sick of AIDS. He told me that was a high number which made it possible for a huge number of people in the country to be infected,” Museveni recalled.

He called for more sensitisation, ensuring safe blood transfusion, and prevention of mother-to-child transmission.

Although he is not against condom use, the President added, he wouldn’t advise his children to sexually interact with people whose status they do not know simply because they have condoms.

Parliament Speaker Edward Ssekandi said that President Museveni’s bold fight against Aids had catapulted Uganda onto the international map, and made Museveni a senior global consultant on HIV/AIDS prevention.

HIV/AIDS committee chairman Elioda Tumwesigye said the fact that Uganda now has an ARV factory should not make people complacent, saying that after 25 years, the figure had stagnated again. He called for a re-awakening of the fight.

Museveni said countries with highest condom use have the highest infection rates, adding that had Uganda dwelt on only abstinence and faithfulness, the 6.3% infection rate would be lower.

Australia: New Victoria public health policy clarifies when ‘risky’ HIV-positive individuals should be reported to the police

I spoke too soon in my posting yesterday regarding reassurances from Victoria’s chief health office, Dr John Carnie, on a new policy from the public health department about reporting HIV-positive individuals who did not disclose or use condoms to the police.

A report in today’s The Age quotes Dr Carnie as saying:

anyone who had intentionally infected someone else, had committed crimes such as rape, or had shown they were unwilling to change their behaviour after being ordered to do so by the department, would be reported to the police.

Full story from The Age below.

Police to be told about reckless HIV acts

Julia Medew
February 26, 2008

HIV-POSITIVE people who ignore warnings not to have unprotected sex will be reported to police under new Department of Human Services guidelines.

Victoria’s Chief Health Officer, Dr John Carnie, said that, under the system, anyone who had intentionally infected someone else, had committed crimes such as rape, or had shown they were unwilling to change their behaviour after being ordered to do so by the department, would be reported to the police.

Under the previous system, Dr Carnie said there were no guidelines to indicate when a case required police attention.

“This system makes it much more explicit,” he said.

On the department’s website, the previous guidelines for the management of people living with HIV who put others at risk says the police will only become involved if someone outside the department makes a complaint to them.

When the department receives allegations that an HIV-positive person is not disclosing their status and having unprotected sex, trained staff contact the person to remind them of their legal obligations to disclose their status or practise safe sex.

If they do not change their behaviour and the department receives more allegations, the person can be served with a legally binding public health order restricting their behaviour. The orders can impose restrictions on people’s movements or ban them from a gay beat or sex-on-premises venue.

If the Chief Health Officer believes the person poses an urgent risk to public health, he can detain the person under the Health Act in a secure facility.

Dr Carnie exercised this power in December when he placed an HIV-positive person in an undisclosed secure location. The person, who has the right to appeal to the Supreme Court, is still there.

Dr Carnie, who replaced Dr Robert Hall after he was sacked by the government last year, has ruled out genotyping new HIV infections — developing a genetic profile of the virus in patients — to track who or what is driving up infections in Victoria.

Former health minister Bronwyn Pike sacked Dr Hall last April after a string of communication failures over his management of HIV cases and a fatal outbreak of gastroenteritis at a nursing home.

HIV infections recently reached their highest level in Victoria in 20 years. The department was notified of 334 cases in 2006, 17% higher than the 285 in 2005 and the highest since 1987.

Australia: Review critical of Victoria’s public health response to ‘risky’ HIV-positive individuals

A review of the Victorian Health Department’s management of ‘risky’ HIV-positive people has been published. The Age puts its own negative spin on the story, but somewhat reassuring is the response from Dr John Carnie, Victoria’s chief health officer.

He said cases warranting police intervention were rare and that the review reinforced education and counselling to change people’s behaviour rather than criminal prosecution.

The full story, from The Age, is reproduced below.

‘Reckless’ HIV patients not reported
Julia Medew
The Age
February 23, 2008

HEALTH authorities failed to refer to police HIV-positive people who ignored warnings not to have unprotected sex, a report has found.

A review of the Department of Human Services’ management of “risky” HIV-positive people has also revealed authorities lost track of people they were monitoring and did not take action against some who breached public health orders restricting their behaviour.

The review, of 15 cases before the department last year, urges an overhaul of procedures.

The review was ordered by former health minister Bronwyn Pike last year after she sacked Victoria’s chief health officer Dr Robert Hall for his management of HIV-positive people who exposed others to the virus.

The review found that while swift and decisive action was taken against some people, there were “occasions where the evidence demanded action but none was forthcoming”.

Most of the cases under review involve either recent migrants or gay men.

The examination, carried out by former Western Australian police commissioner Bob Falconer, and former health bureaucrat Dr John Scott, said: “The reviewers believe . . . that involvement of police without the client being referred to police has not always happened when it should have, and this is by no means a recent issue.

“The authors have found the system is in need of significant overhaul and improvement.”

It is understood that more than one of the cases reviewed included examples of criminal behaviour that should have been referred to the police.

The report said people who had been served with public health warnings controlling their behaviour were often “uncontactable for a period of time” and that a number of clients who breached behavioural rules were not properly controlled.

The review also found:

■There was no dedicated facility to isolate HIV-positive people who posed a risk to public health under the Health Act.

■Internal procedures for managing cases left a perception that decisions about people’s cases were made in an “ad hoc” fashion.

■Legal advice for “contentious” decisions resulted in “significant delays in action being taken” against people.

■Access to interpreters was minimal.

Victorian chief health officer Dr John Carnie yesterday said changes had been implemented to ensure the department returned to “world’s best practice”. He said the department had been working with Victoria Police to create a shared understanding of each agency’s role in managing cases of concern. He said cases warranting police intervention were rare and that the review reinforced education and counselling to change people’s behaviour rather than criminal prosecution.

A Canadian expert who reviewed the report said the department’s new protocols were in line with world best practice.

Health Minister Daniel Andrews said the Government was committed to implementing the review’s recommendations.

Australia: Western Australia proposes new public health laws to detain HIV-positive people who ‘put others at risk’

A proposed change to Public Health law in the State of Western Australia would allow people with HIV to be detained and forced to undergo medical treatment.

WA’s Public Health executive director, Tarun Weeramanthri, used recent concerns over a sex worker who was named and shamed by health officials in the Australian Capital Territory, to argue that these changes were a good thing.

Ironically, Health Consumers Council executive director, Michelle Kosky, is also for the changes. She believes that the new law would provide HIV-positive individuals with more rights, because for the first time, it allowed people detained under these laws to be able to appeal to the State Administrative Tribunal.

Full story from The Sunday Times (of Australia) below:

Disease carriers may be detained without charge
By Anthony Decegle
February 24, 2008 01:00am
Article from: The Sunday Times

PEOPLE carrying dangerous diseases and sexually transmitted infections, such as HIV, could be detained without charge and forced to undergo medical treatment under legal changes.

A new public health Bill is set to replace the existing law, which is nearly 100 years old, and give the The Western Australian Health Department powers to deal swiftly with individuals who it suspects pose a threat to the community.

Those affected could be banned from venues such as nightclubs, public baths or bars and have to submit to supervision or face the threat of a $50,000 fine. They could also be forced to take antibiotics.

If passed, the new law would replace the WA Health Act 1911 which, according to State Government literature, has “significant limitations in regard to its application to people who knowingly expose others to the risk of HIV infection”.

Public Health executive director Tarun Weeramanthri said the deliberate spreading of sexual diseases was a real threat.

The Health Department was forced to put out an urgent warning earlier this month after a 41-year-old male sex worker infected with HIV was charged by police in the Australian Capital Territory.

The sex worker previously lived in WA.

“It is believed that the man may have had unsafe sex with clients in the ACT and other jurisdictions, including WA,” Communicable Disease Control director Gary Dowse said.

“It is believed some of the people contacted may have been WA residents and it is possible that other persons in WA may have had contact with the man in the past.”

Dr Weeramanthri said the Public Health Bill clarified the terms for dealing with people who had infectious diseases.

“The old act gives certain powers, but doesn’t say exactly under what circumstances you may apply them,” he said.

“This Bill clarifies the range of circumstances in which someone might act.”

Dr Weeramanthri said the Bill was based on a principle of precaution; officials could act on suspicions faster.

“If you think there is a serious risk in the intermediate to long term, even though you may not have all of the evidence right now, it’s ethical and prudent to act on the risk,” he said.

“You can’t just use the lack of definitive evidence as an excuse for not acting. You use common sense.”

Public Health Association national president Mike Daube said the Bill would modernise public health legislation.

“It ensures that the health of the community is properly protected,” he said. “This is much better than trying to work off legislation that was written long before HIV was even dreamed of.”

The Health Department refused to reveal the number of people with an STD infection who were being monitored.

Health Consumers Council executive director Michelle Kosky said the new Bill would provide people with more rights. For the first time, these individuals would be able to appeal to the State Administrative Tribunal.

New Zealand: New bill proposes to make HIV a notifiable disease

A Press release from the New Zealand AIDS Foundation highlights concerns over the forthcoming Public Health Bill to make HIV a notifiable disease. The NZAF supports the Bill as along as all the necessary epidemiological information remains anonymised.

NZAF is keen to point out that this data collection system has not and would not involve identification of HIV positive people.

“This is about collecting the ‘what’, ‘where’ and ‘how’ of new HIV infections, not the ‘who’,” Le Mesurier explains. “The confidentiality of HIV positive New Zealanders must be protected.

“However, we need reliable data to map the changes in the HIV epidemic. For example, treatment-related deaths are a new complication that can only be monitored by analysing HIV diagnoses, rather than AIDS.

HIV data collection must be secured
Friday February 22, 2008

Adding HIV to the Ministry of Health’s list of notifiable conditions will help create an “HIV census”, ensuring that anonymous data collection on New Zealand’s HIV and AIDS epidemic is secured for the future, says the New Zealand AIDS Foundation (NZAF).

NZAF is supporting moves in the forthcoming Public Health Bill to make HIV a “notifiable” condition, providing the current anonymous coding system is retained. AIDS has already been a notifiable condition since 1985 with no breaches of confidentiality.

“AIDS represents the end result of HIV infection, and with the effectiveness of new treatments for HIV, information on AIDS notifications are increasingly less useful as a tool for tracking the spread of the epidemic,” says Rachael Le Mesurier, Executive Director of the New Zealand AIDS Foundation.

New HIV diagnosis information is currently sent by GPs, sexual health clinics and NZAF centres to the AIDS Epidemiology Group at Otago University, who collate the six-monthly AIDS New Zealand reports.

This system has been working very well since 1985 and has been entirely voluntary. Nearly 2,500 New Zealanders with HIV have given their permission for data on their diagnosis to be collected and published in AIDS New Zealand.

“The AIDS Epidemiology Group currently receives information on over 95% of HIV diagnoses, but there is no legal requirement for this data to be collected,” Le Mesurier says. “With the many demands placed on our health services, and the good news that treatments have drastically reduced AIDS deaths, we need to ensure that HIV is given the priority treatment it deserves by making the anonymous data collected secure for the future.”

NZAF is keen to point out that this data collection system has not and would not involve identification of HIV positive people.

“This is about collecting the ‘what’, ‘where’ and ‘how’ of new HIV infections, not the ‘who’,” Le Mesurier explains. “The confidentiality of HIV positive New Zealanders must be protected.

“However, we need reliable data to map the changes in the HIV epidemic. For example, treatment-related deaths are a new complication that can only be monitored by analysing HIV diagnoses, rather than AIDS.”

The Public Health Bill is currently before the Health Select Committee. The closing date for submissions is Friday March 7, 2008.

Singapore: Government plans to criminalise ‘risky sex’ without prior disclosure

An interesting article from Bloomberg (which is usually more associated with business news than with HIV policy) on Singapore’s worrying plans to criminalise people who do not disclose they have previously had “unsafe” sex, and have “reason to believe” they may be HIV-positive, previously reported here last September.

Offenders would face as much as 10 years in prison and a S$50,000 fine. Penalties for those who know they’re HIV-positive and don’t inform their partners, already a crime under legislation that took effect in 1992, would be increased to the same level. No one has been prosecuted under the existing law.

Enforcement would depend on an aggrieved partner filing a complaint and prosecutors proving that a defendant had a history of high-risk sexual behavior.

HIV Ignorance Is No Defense in Singapore Plan to Curb Risky Sex

By Simeon Bennett

Feb. 12 (Bloomberg) — Every weekend, men from Singapore take a one-hour ferry ride to Indonesia’s Batam Island for cheap golf, beer and sex.

About S$70 ($49) hires an island prostitute for the day, compared to just an hour with a Singapore hooker. The trade has contributed to a doubling of Singapore’s HIV infection rate in the past 10 years, the government says.

The city-state proposes to curb infections by making it a crime for those who engage in such unsafe practices, and thus have “reason to believe” they may be HIV-positive, to have sex without informing their partners of the risks. United Nations groups and AIDS activists say that would violate human rights and increase infection rates by encouraging anonymous sex.

“Stigma and discrimination are major drivers of the HIV epidemic,” Dr. Roy Chan, president of the Singapore advocacy group Action for AIDS, said in written comments on the legislation, which may be considered by parliament this month. “The net effect will be poorer control of HIV infection.”

The government disagrees, saying the bill would encourage people to get tested and avoid risky behavior such as having unprotected gay sex or frequenting prostitutes. Violators may be prosecuted even if they don’t test positive for HIV.

“We’re trying to find a way essentially to ask them to be responsible for their own actions,” said Koh Peng Keng, the Health Ministry’s senior director of operations. “There is a greater impetus to get more people to come forward for testing.”

No ‘Witch Hunt’

Offenders would face as much as 10 years in prison and a S$50,000 fine. Penalties for those who know they’re HIV-positive and don’t inform their partners, already a crime under legislation that took effect in 1992, would be increased to the same level. No one has been prosecuted under the existing law.

Enforcement would depend on an aggrieved partner filing a complaint and prosecutors proving that a defendant had a history of high-risk sexual behavior.

“It’s never the intention to go on a witch hunt,” Koh said. “It’s going to help in public education.”

The government also plans to double spending on AIDS prevention programs to S$8 million annually for the next three years, he said.

Zack, a self-employed electrical engineer who suspects he contracted HIV from a prostitute, isn’t convinced of the government’s motives, especially considering that gay sex is illegal in Singapore.

“People are going to hide,” said Zack, 36, who spoke on condition his real name not be used for fear of losing his business.

Infected for Years

Singapore’s HIV infection rate has doubled in the past 10 years. About 1 in 10,000 people were newly infected in 2006, compared with fewer than 0.5 in 1996, according to government statistics. More than half of those diagnosed in 2006 also had AIDS, indicating they’d been infected for years without knowing it, Koh said.

In total, about 7 of every 10,000 people in Singapore have HIV, the government says.

UNAIDS estimates the rate may be as high as 30 once undiagnosed cases are included. That’s higher than estimated infection rates in other developed Asian nations such as Japan and South Korea. Singapore’s rate is lower than in neighboring nations, including Malaysia and Thailand.

The UN agency calculated its figure from government data for high-risk groups — including prostitutes and their customers, gay and bisexual men, and intravenous drug users — and statistics provided by HIV and pregnancy clinics.

UN Opposition

Seema Paul, chief policy coordinator for Geneva-based UNAIDS, said the Singapore bill would force people to get HIV tests, putting them at risk of discrimination and violence if others learned they were HIV-positive.

“We have consistently advocated that HIV testing should be voluntary,” she said in an e-mail.

Stuart Koe, chief executive officer of media company Fridae Ltd., said those who contract HIV won’t disclose the names of their partners to doctors for fear of being prosecuted, and that will contribute to spreading the disease.

“There’ll be a lot of unexpected negative effects,” said Koe, who works with AIDS support groups in Singapore and whose company runs a gay Web site.

The groups primarily responsible for spreading HIV in Singapore are men who visit prostitutes, and gay and bisexual men, the government says.

Refusing Condoms

In Batam, brothels occupy storefronts scattered among homes, shops and bars like the PP Banana Laptop Lounge. Pimps ply their trade wherever foreigners are found.

The AIDS rate in the province including Batam is the third- highest in Indonesia after Papua and Jakarta, the national AIDS commission said on its Web site.

Ayu, a 28-year-old prostitute, said most of her clients are married Singaporean men and not all practice safe sex.

“Sometimes the customer does not want a condom,” she said, her purple eye shadow sparkling under neon lights. “I cannot force.”

Like many Indonesians, Ayu uses only one name.

Koh said the government works with activist groups to educate men before they get on the Batam ferry. Those efforts include handing out condoms and HIV prevention information.

“There’s this huge reservoir of people who are HIV-positive and may not know,” he said. “Once someone knows they’re positive, typically they change behavior.”

US: South Dakota makes ‘HIV criminals’ sex offenders, too

The South Dakota Senate voted unanimously last Thursday to register as sex offenders people who have already been convicted of the state law against ‘intentional’ HIV exposure/transmission.

This, according to writer Thomas Heald in a blog published before the vote, would “add the punishment of sex offender status, thus adding a ‘Scarlet Letter’ to their conviction, which would add restrictions on where they could live (1000 feet of schools churches, etc.), and allow neighborhood searching and registration so that families can “protect themselves” and/or unofficially harass the offender.”

The Act (SB65) to define intentional exposure to HIV infection by sexual intercourse as a sex crime subject to registry as a sex offender’ has now amended its sex offender law (§ 22-24B-1) by adding the following clause: “Intentional exposure to HIV infection as set forth in subdivision § 22-18-31 South Dakota Codified Laws.”

§ 22-18-31 is ‘intentional exposure to HIV infection’, a Class 3 felony (punishable by up to 15 years in prison and/or a $15,000 fine) which criminalises “any person who, knowing himself or herself to be infected with HIV, intentionally exposes another person to infection by…engaging in sexual intercourse or other intimate physical contact with another person.”

The report, from the Associated Press/Rapid City Journal, gets its facts wrong, and says the law is about “intentionally infecting sex partners”. Sadly, this has been repeated in other reports, including those at Poz.com.

Much, much worse, of course, is the ignorance of South Dakota’s lawmakers, including Senator Sandy Jerstad – author of this latest Act – who has conflated HIV exposure with HIV infection and thinks that people exposed to HIV will “have to take HIV tests for years (although a negative antibody test six months after exposure is enough to know that HIV infection has not taken place) and they live with the consequences of this crime for the rest of their lives.”

The latter is possibly true – if someone has been found guilty of this ‘crime’ through a fair trial – but surely this is true only if the ‘victim’ has become HIV-positive. Or is she suggesting that simply having sex with someone who is HIV-positive results in life long trauma?

The full Associated Press/Rapid City Journal report is below.

Senate approves HIV legislation

By The Associated Press

PIERRE — The South Dakota Senate decided Thursday that people who are convicted of intentionally infecting sex partners with the AIDS virus should have to register as sex offenders after release from prison.

Sen. Sandy Jerstad, D-Sioux Falls, said that would warn the public about the danger those people present.

“There’ll always be a certain small portion of our population who set out to intentionally harm others by committing sex crimes,” she said.

Two people in the state have been convicted of intentionally infecting others with HIV, Jerstad said.

She said the maximum prison term for the crime is 15 years in prison, but the victims must face the fear that they’ll get AIDS.

“Those victims will have to take HIV tests for years, and they live with the consequences of this crime for the rest of their lives,” Jerstad said.

SB65 cleared the Senate 34-0, sending the legislation to the House.