US : Mississippi lawmakers pass law mandating HIV testing for anyone arrested for sexual assault

Updated by Paul Boger at Law enforcement officers will soon be able to do mandatory AIDS testing on those arrested for sexual assault. House Bill 2-57 was passed by lawmakers with nearly unanimous support in Mississippi’s House and Senate. The measure gives law enforcement the right to test individuals arrested for sexually assaulting a minor for diseases such as HIV and AIDS.

Under current Mississippi law, testing can only be conducted after a person has been convicted of a crime. Proponents say the new law will help young victims know if they’ve been exposed to a terrible disease. Republican Representative Mark Formby of Picayune helped draft the law. He says the test would become part of the intake process.

“If you’re arrested and you get photographed; it is not any additional evasive behavior,” says Formby. “We are documenting that you were arrested, which means that there was some degree of evidence that implicated you in a crime.”

Despite the measure’s popularity among lawmakers, some groups like the ACLU of Mississippi believe the law is a slippery slope.

Keia Johnson is the organization’s legislative strategist. She says the law amounts to an unreasonable search and seizure.

“We believe that when you mandate that DNA is to be collected for HIV testing purposes or anything like that upon arrest, that you are violating the due process of law,” Johnson says.

According to Representative Formby, both the suspect and the victim will be given the results of the test 24 hours after it was taken. At that time, all other DNA samples would be destroyed.

Malawi: High Court rules that mandatory HIV testing is unconstitutional

By Anneke Meerkotter, Southern Africa Litigation Centre (SALC) and Ian Southey-Swartz, Open Society Initiative for Southern Africa (OSISA)

In 2009, a group of women, presumed to be sex workers, was as part of a police sweeping exercise in Mwanza, Malawi. The women were taken to the Mwanza District Hospital where they were tested for HIV without their knowledge or consent, and in contravention of Malawi’s HIV policy. The women were then taken to the Mwanza Magistrates’ Court where some were charged with and convicted of “spreading venereal disease (HIV)”.

In 2011, eleven of these women filed an application in the Blantyre High Court challenging their subjection to mandatory HIV tests and the public disclosure of their HIV status in open court. The women argued that these actions by government officials violated their constitutional rights. Justice Dorothy nyaKaunda Kamanga handed down judgment on 20 May 2015.

Reading her judgment in court, Justice nyaKaunda Kamanga, said that forced HIV testing amounted to a violation of the applicants’ constitutional rights, including their right to privacy; their right to non-discrimination; their right to freedom from cruel, inhuman and degrading treatment; and their right to dignity. Justice Kamanga went a step further and requested a copy of the criminal court records in order to review the sentence the magistrate imposed on the applicants.

The case is illustrative of how the criminal justice system often impedes on accused persons’ rights to dignity, a fair trial and access to justice. In the present case, the matter was repeatedly delayed, including due to high caseloads and industrial action by judiciary personnel.

The judgment comes in the context of other important developments in Malawi. Civil society activists have increasingly voiced their concerns about the manner in which sex workers are treated by the police. Police often arbitrarily arrest women presumed to be sex workers during sweeping exercises and misguidedly and unlawfully charge them with offences such as being a rogue and vagabond or living off the earnings of prostitution, when there is no evidence of such offences having been committed. Such arrests inevitably involve a range of human rights violations.

The attitudes displayed by police towards alleged sex workers also extend to how some policy-makers view sex workers in Malawi. The HIV and AIDS (Prevention and Management) Bill of 2013, currently prohibits compulsory HIV testing, but allows forced HIV testing for specific groups of people, including commercial sex workers. In contrast, this case highlights the human rights violations caused by mandatory HIV testing and the importance of having legislation which prohibits this. This is an important message at a time when the Malawi government engages in final deliberations on the proposed Bill.

The case shows that it is possible for vulnerable groups to hold the government accountable when their rights have been violated. It is hoped that the judgment, once available, will be used as a resource by other marginalized groups to assert their rights and will contribute to improving constitutional jurisprudence in the region.

UNAIDS publishes updated, detailed guidance on HIV criminalisation

Today, the Joint United Nations Programme on HIV/AIDS (UNAIDS) publishes its long-awaited updated guidance to limit the overly broad use of criminal laws to regulate and punish people living with HIV who are accused of HIV non-disclosure, exposure and/or transmission. The guidance aims to ensure that any application of criminal law in the context of HIV achieves justice and does not jeopardise public health objectives.

In a note accompanying the release, UNAIDS’ Executive Director, Michel Sidibé, states:

As I highlighted in my opening remarks [at the High Level Policy Consultation on criminalization of HIV Non-disclosure, Exposure and Transmission co-hosted by UNAIDS and the Government of Norway on 14-15 February 2012] in Oslo, the overly broad criminalisation of HIV non-disclosure, exposure and transmission at best indicates a lack of understanding of the science of HIV, at worst comprises an expression of discrimination against people living with HIV.  Such overly-broad laws not only lead to miscarriages of justice, but also threaten our efforts to address HIV in an effective and rights-based manner.

Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations is the result of a two year project involving research, evidence-building and policy dialogue, comprising:

  • The development of background and technical papers on current laws and practices, as well as recent medical and scientific developments relevant to HIV criminalisation;
  • An Expert Meeting in Geneva, Switzerland (31 August to 2 September 2011) bringing together leading scientists, medical practitioners and legal experts to consider the latest scientific and medical facts about HIV to be taken into account in the context of criminalisation; to explore how to best address harm, risk, intent, proof, and sentencing; and to consider alternative responses to criminalisation, in light of scientific and medical advances; and
  • A High Level Policy Consultation in Oslo, Norway (14 -15 February 2012) that gathered policy-makers, experts in HIV science, medicine and human rights and members of civil society, including people living with HIV, from around the world to discuss options and recommendations for addressing overly broad HIV criminalisation.

The new guidance reiterates the positions previously stated in the 2008 Policy Brief issued by UNAIDS and the United Nations Development Programme  (UNDP) and the recommendations of the Global Commission on HIV and the Law, to limit the application of criminal law to cases of intentional transmission (i.e. where a person knows his or her HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit it) and that general – and not HIV-specific – laws should be used for these extremely rare occasions.

It also stresses that because overly broad HIV criminalisation raises serious human rights and public health concerns, rather than relying on laws, investigations, prosecutions and imprisonment, resources should focus on “expanding the use of proven and successful evidence-informed and rights-based public health approaches to HIV prevention, treatment and care, and limit any application of criminal law to truly blameworthy cases where it is needed to achieve justice. States should strengthen HIV programmes that enable people to know how to protect themselves from HIV and to avoid transmitting it, and they should help people access the services and commodities they need for HIV prevention, treatment, care and support.”

Mindful that this ideal cannot be achieved in the short-term, UNAIDS then provides detailed and specific “considerations and recommendations” to address how the criminal law is currently applied to HIV non-disclosure, exposure or transmission. “It offers these to help governments, policy-makers, law enforcement officials, and civil society—including people living with HIV—to achieve the goal of limiting and hopefully ending the overly broad application of criminal law to HIV. These considerations and recommendations are also provided to help ensure, to the best degree possible, that any application of criminal law in the context of HIV achieves justice and does not undermine public health.”

There are three main princples behind the guidance. The use of criminal law in relation to HIV should

  1. be guided by the best available scientific and medical evidence relating to HIV,
  2. uphold the principles of legal and judicial fairness (including key criminal law principles of legality, foreseeability, intent, causality, proportionality and proof), and
  3. protect the human rights of those involved in criminal law cases.

The guidance then provides detailed considerations and recommendations, with regard to

  • the assessment of the harm caused by HIV

In the absence of the actual transmission of HIV, the harm of HIV non-disclosure or exposure is not significant enough to warrant criminal prosecution. Non-disclosure of HIV- positive status and HIV exposure should therefore not be criminalised.

  • the assessment of the risk of HIV transmission

Where criminal liability is extended to cases that do not involve actual trans- mission of HIV, such liability should be limited to acts involving a “significant risk” of HIV transmission. The determination of whether the risk of HIV transmission from a particular act is significant should be informed by the best available scientific and medical evidence.

  • the assessment of the mental culpability of the person accused

Any application of criminal law to HIV non-disclosure, exposure or transmission should require proof, to the applicable criminal law standard, of intent to transmit HIV. Intent to transmit HIV cannot be presumed or solely derived from knowledge of positive HIV status and/ or non-disclosure of that status and/or from engaging in unprotected sex, having a baby without taking steps to prevent mother-to-child transmission of HIV, or by sharing drug injection equipment.

  • the determination of defences to prosecution or conviction

Disclosure of HIV-positive status and/ or informed consent by the sexual partner of the HIV-positive person should be recognized as defences to charges of HIV exposure or transmission. Because scientific and medical evidence demonstrates that the risk of HIV transmission can be significantly reduced by the use of condoms and other forms of safer sex—and because these behaviours are encouraged by public health messages and HIV prevention strategies that should not be undermined—condom use or the practice of other forms of safer sex (including non-penetrative sex and oral sex) should be recognized as defences to charges of HIV non- disclosure, exposure or transmission. Effective HIV treatment or low viral load should be recognized as defences to charges for HV non-disclosure, exposure or transmission.

  • the assessment of elements of proof

As with any crime, all elements of the offence of HIV non-disclosure, exposure or transmission should be proved to the required criminal law standard. HIV phylogenetic evidence alone is not sufficient to establish, to the required criminal law standard, that one person did infect another person with HIV.

  • the determination of penalties following conviction for HIV non-disclosure, exposure or transmission

Any penalties for HIV non-disclosure, exposure or transmission should be proportionate to the state of mind, the nature of the conduct, and the actual harm caused in the particular case, with mitigating and aggravating factors duly taken into account.

  • prosecutorial guidelines

Countries should develop and implement prosecutorial and police guidelines to clarify, limit and harmonise any application of criminal law to HIV. The development of such guidelines should ensure the effective participation of HIV experts, people living with HIV, and other key stakeholders. The content of these guidelines should reflect the scientific, medical and legal considerations highlighted in the present document.

The entire guidance is available below, and can be downloaded here.

Exposing the 'Office of Medical and Scientific Justice' by Seth Kalichman

I posted earlier that AIDS Denialist and LA Private Investigator Clark Baker is focusing his attention on the US Military justice system. Baker’s storefront business, the Office of Medical and Scientific Justice (OMSJ) is paid by US taxpayers to bring AIDS denialists to the court. How are AIDS Denialists used as experts in legal cases?

Austria: Man accused of criminal HIV transmission fights “unconstitutional” forced blood test

A man in Austria is taking a case to the Constitutional Court that challenges the forcible testing of blood for HIV (as well as for use in phylogenetic analysis) that was legalised on 1 January 2012 through an amendment of the Criminal Procedure Code by the Prevention of Terrorism Act 2011.  He is being supported by Rechtskomitee LAMBDA, whose president, Dr. Helmut Graupner, is also his defence counsel.

Full details of the case, and the problematic application of this law, from the Rechtskomitee LAMBDA press release issued today are included in full below (English version is slightly modified from the original release; German is the original.)

From 1 January 2012: Forced Hiv-Testing: Rechtskomitee LAMBDA supports case in the Constitutional Court

The Prevention of Terrorism Act 2011 also amended the Criminal Procedure Code. It makes forcible HIV-testing legal as of 1 January 2012, despite the fact that the Constitution prohibits taking blood by force. A case has already been brought to the Constitutional Court.

The Prevention of Terrorism Act 2011, passed by federal parliament in October 2011, legalizes taking blood by force in order to prove the misdemeanor of Endangering Human Beings by Transmittable Diseases (§ 178 Criminal Code). Up to now forcible blood taking (in the case of not intoxicated defendants) had been restricted to sexual felonies or other felonies incurring a maximum penalty of five years.

Since 1 January 2012 this changed, despite the fact that the Constitutional Court prohibits forcible blood withdrawals, as no one may be forced to supply his body as evidence against him. The first case challenging this new power of the criminal police has already been taken to the Constitutional Court.

The applicant, who has no criminal record, is HIV-positive and asks the Constitutional Court to strike down the amendment. The state prosecutor has started proceedings against him under  § 178 CC after another HIV-positive man had accused him of infecting him with HIV. Indeed the two men had sex with each other years ago, but in accordance with the safer sex rules propagated by the Ministry of Health and the AIDS Service organisations (oral sex without ejaculation into the mouth).

Blackmailed and reported to the police

The accuser, who has a massive criminal record of violent, drug and property offences, reported the defendant to the police years after the sexual contact and only after the man refused to fulfil his considerable financial demands. In addition the accuser admitted during his interrogation that he had unprotected sex with others, and he had searched for casual sex (“sexdates”) in the internet displaying in his profile the information “Safer Sex: Never”. Even more so the man, according to his own depositions, is addicted to heroin and thus had been exposed also to other ways of transmission than the sexual one.

The case against the accuser (for aggravated blackmail) has been dropped immediately after the interrogation of both men due to “conflicting depositions”. Not so the case against the defendant for endangering by transmittable diseases (which offence is fulfilled just by engaging in unsafe sex without the necessity of causing infection). Also in regard to this offence there were “conflicting depositions” but the prosecutor wanted a blood test (for phylogenetic analysis).

Potential for conviction of innocents

A phylogenetic analysis however cannot prove an infection. And phylogenetic analyses bear the risk of false results and misinterpretation at the expense of a defendant. There are no standards (guidelines) so far for such analyses in forensic context and its results unfortunately again and again are misunderstood and misinterpreted by the courts. UNAIDS and the EU-Fundamental Rights Agency for years have been highlighting this.

So the man did not agree to blood withdrawal from him as he fears, because he is innocent, to be wrongfully convicted on the basis of such a blood test. Since 1 January he now is facing the danger of forced blood taking at any time. Therefore he has addressed the Constitutional Court.
  
“It is incredible that the governing coalition passed this unconstitutional law,” says president of Rechtskomitee LAMBDA (RKL) and defence counsel of the man, Dr. Helmut Graupner, “As too often we again have to hope for the Constitutional Court”.

Seit 1.1.2012: Zwangs-Hiv-Tests: Rechtskomitee LAMBDA (RKL) unterstützt Antrag an den Verfassungsgerichtshof

Das Terrorismuspräventionsgesetz bringt auch eine Novelle der Strafprozessordnung. Seit 1.1.2012 sind gewaltsame Blutabnahmen bei Verdacht einer Ansteckung mit Hiv zulässig, obwohl die Verfassung zwangsweise Blutabnahmen verbietet. Eine Beschwerde liegt bereits beim Verfassungsgerichtshof.

Mit dem im Oktober 2011 verabschiedeten Terrorismuspräventionsgesetz wurden Zwangsblutabnahmen bei Verdacht des Vergehens der Gefährdung von Menschen durch übertragbare Krankheiten (§ 178 Strafgesetzbuch) erlaubt. Bisher waren zwangsweise Blutabnahmen (bei nicht berauschten TäterInnen) nur bei Verdacht auf ein Sexualverbrechen oder auf ein (anderes) Verbrechen zulässig, das mit mehr als 5 Jahren Freiheitsstrafe bedroht ist.

Das ist seit 1. Jänner anders, obwohl der Verfassungsgerichtshof zwangsweise Blutabnahmen verbietet, weil niemand gezwungen werden darf, seinen Körper als Beweismittel gegen sich selbst zur Verfügung zu stellen. Die erste Beschwerde gegen die neue Befugnis der Kriminalpolizei liegt bereits beim Verfassungsgerichthof.

Der unbescholtene Antragsteller ist Hiv-positiv und beantragt die Aufhebung der Gesetzesnovelle. Die Staatsanwaltschaft (StA) hat gegen ihn ein Ermittlungsverfahren wegen des Verdachts gem. § 178 StGB eingeleitet, weil ihn ein anderer Hiv-positiver Mann beschuldigt, ihn mit Hiv angesteckt zu haben. Tatsächlich hatte der Mann mit diesem anderen Mann vor Jahren einvernehmlichen sexuellen Kontakt, jedoch entsprechend den vom Gesundheitsministerium und den Aids-Hilfen propagierten Safer Sex Regeln, also mit Sexualpraktiken, bei denen eine Ansteckung nicht möglich ist (Oralverkehr ohne Ejakulation in den Mund).

Erpresst und angezeigt

Der mehrfach wegen Gewalt-, Suchtgift- und Vermögensdelikten vorbestrafte Anschuldiger hat die Anzeige, in der er ungeschützten passiven Analverkehr behauptete, erst Jahre nach dem sexuellen Kontakt erstattet und erst nachdem der Beschuldigte nicht bereit war, seine erheblichen finanziellen Forderungen zu erfüllen. Zudem hat er selbst in seiner Einvernahme angegeben, anderweitig ungeschützte sexuelle Kontakte gehabt zu haben und hatte er im Internet flüchtige sexuelle Kontakte („Sexdates“) gesucht mit einem Profil, auf dem angegeben war: „Safer Sex: Niemals“.  Darüber hinaus ist dieser Mann nach seinen eigenen Angaben heroinsüchtig, und war daher, außer dem sexuellen noch anderen Übertragungswegen für eine Hiv-Infektion ausgesetzt.

Das gegen den Anschuldiger (wegen des Verdachts der schweren Erpressung) eingeleitete Strafverfahren wurde „wegen der widerstreitenden Aussagen“ sogleich nach Einvernahme der beiden Männer eingestellt. Nicht jedoch das Verfahren gegen den Beschuldigten wegen des Verdachts der Gefährdung durch übertragbare Krankheiten (wofür bereits unsafer Sex ausreicht, ohne dass es zu einer Ansteckung gekommen ist). Auch hier bestanden widerstreitende Aussagen, jedoch begehrte der Staatsanwalt eine Blutuntersuchung (phylogenetische Untersuchung).

Gefahr der Verurteilung Unschuldiger

Eine phylogenetische Untersuchung kann aber eine Ansteckung nicht beweisen. Und phylogenetische Untersuchungen bergen das Risiko falscher Ergebnisse und von Fehlinterpretationen zu Lasten des Beschuldigten Es gibt (noch) keine Standards (Richtlinien) für die Durchführung dieser Analysen zu gerichtlichen Zwecken und ihre Ergebnisse werden von Gerichten leider immer wieder missverstanden und fehlinterpretiert. Darauf weisen UNAIDS und die EU-Grundrechteagentur seit Jahren hin.

Der Mann hat daher einer Blutabnahme nicht zugestimmt, weil er befürchten muss, auf Grund der Testergebnisse unschuldig verurteilt zu werden. Seit 1. Jänner muss er nun jederzeit die gewaltsame Abnahme einer Blutprobe fürchten und hat sich daher an den Verfassungsgerichtshof gewandt.

„Es ist unglaublich, dass die Regierungsparteien, gegen die Opposition, diese verfassungswidrige Regelung beschlossen haben“, sagt der Präsident des RKL und Rechtsanwalt des Antragstellers Dr. Helmut Graupner, „Es bleibt, wie so oft, die Hoffnung auf den Verfassungsgerichtshof“.

New report explores implications of tests to estimate timing of HIV infection for criminal prosecutions

From UNAIDS front page today.

 

Feature Story: New report explores implications of tests to estimate timing of HIV infection for criminal prosecutions

The UK charity National AIDS Trust (NAT) launched a report on 4 August 2011, entitled Estimating the likelihood of recent HIV infection – implications for criminal prosecution, which explores the validity and meaning of the Recent Infection Testing Algorithm HIV tests, or RITA tests, within the context of criminal prosecutions of HIV transmission.

The report, primarily aimed at professionals working in the criminal justice system and HIV specialists who may be called on as expert witnesses in criminal HIV transmission cases, calls for caution about the potential use of RITA results to determine timing of HIV infection.

About RITA and its potential use in criminal law context

RITA tests estimate the likelihood that a person found to be HIV-positive has been infected recently, usually within the previous six months. To date, the United Kingdom is the only country reported to routinely return RITA results to newly diagnosed patients.

As criminal law in the UK allows for the prosecution of people for transmitting HIV to another person, the report underlines the importance that RITA tests and their limitations be fully understood and not misused in criminal proceedings. The report underlines that while there have been no reported instances of use of RITA results in courts to attempt to prove timing of HIV transmission and consequently the identity of the person who transmitted HIV, this may happen in the near future.

No test can conclusively state when an individual acquired HIV

“No scientific test is able to conclusively state when an individual acquired HIV,” said Dr Cate Hankins, Chief Scientific Adviser to UNAIDS. “It is important to be cautious, follow clear protocol, and understand the limitations of RITA results when delivering them to patients or using them within a criminal law context.”

According to the report, proving HIV transmission in the context of criminal law cases requires the use of a combination of scientific evidence, medical records and testimony to establish the facts, timing and direction of HIV transmission.

“Scientific advances such as RITA testing are extremely welcome when estimating the recency of HIV infection on a population level, especially as late diagnosis is a huge issue,” said Ms Deborah Jack, Chief Executive of National AIDS Trust. “However, it is crucial that the limitations of RITA tests are fully understood and are not used out of context, for example during criminal proceedings.”

As RITA tests are designed to work at the population level (based on averages) rather than at the individual level, taking into account significant rates of false RITA test results in individuals, the report draws the conclusion that RITA tests are not reliable as evidence of recent HIV infection for individuals in the context of criminal proceedings.

Better understanding of HIV science in the context of criminal law

The NAT report comes weeks ahead of an expert meeting on the scientific, medical, legal and human rights aspects of the criminalization of HIV transmission and exposure organized by UNAIDS in Geneva from 31 August to 2 September 2011.

The meeting will bring together leading scientists and medical experts on HIV together with legal and human rights experts. Participants will examine relevant scientific and legal evidence and concepts relating, among others, to harm, risk, intent and proof, and their conceptualization/application in the context of criminalization of HIV exposure and transmission.

The meeting is part of UNAIDS’ work towards halving the number of countries with punitive laws and practices around HIV transmission, sex work, drug use, or homosexuality that block effective AIDS responses by 2015.

New Zealand: Charges dropped in criminal HIV transmission case

All charges against a Wellington man accused of not disclosing his HIV-positive status prior to unprotected sex with his female partner who subsequently tested HIV-positive have been dropped because police are unable to trace the complainant.

Not only did Justice Simon France drop the charges of “wounding with intent to cause grievous bodily harm” but also ordered that the man’s name be suppressed.

Jo Murdoch, a lawyer from the Public Defence Service, successfully argued in court that the man’s identifying particulars should be suppressed.

Justice Simon France said the issue became whether the man’s HIV status – a particularly private and sensitive medical fact – should be exposed when grave doubts had been raised about the alleged victim’s credibility.

The case did not have the public interest element of a person accused of having put multiple partners at risk or having risky casual sex. Also, the alleged crime was irrelevant to his employment and his contact with the public generally. Taken together the circumstances outweighed the usual principle that justice should be carried out publicly, Justice France said.

Details of the case are sketchy and come from a single story in today’s Dominion Post via Stuff.co.nz.

(Pdf of webpage here if link no longer works.)

Police said he did not tell his partner he had HIV, the couple had unprotected sex and she contracted the disease. The man said his partner of several years knew of his condition and that they always had protected sex.

Shortly before the trial was due, information came to light which, if true, would have affected a court’s view of her honesty. Police were unable to find her and thought she was hiding from them. They had wanted to check the information before expensive tests to see if the couple had the same strain of HIV.

The Crown offered no evidence against the man, resulting in a discharge which amounted to an acquittal.

Evidence: Claims that phylogenetic analysis can prove direction of transmission are unfounded, say experts

I’m reproducing this news article I wrote for aidsmap.com in case anyone hasn’t seen it, because it is a really important issue.  Claiming that phylogenetic analysis is so reliable as to be able to ‘prove’ who infected who in a criminal court case is reckless and somewhat self-serving.

A report from the United States published last week in the Proceedings of the National Academy of Sciences claims to show for the first time that direction of HIV transmission from one individual to another for use as evidence in criminal trials can reliably be established by phylogenetic analysis. However, international experts in phylogenetics who have acted as forensic advisors in criminal courts tell aidsmap.com that the report “draws unwarranted conclusions”.

The report, co-authored by Michael Metzker, associate professor at the Baylor College of Medicine Human Genome Sequencing Center and David Hillis, a professor of evolutionary biology at the University of Texas, details the phylogenetic analysis methodology used in two criminal HIV transmission cases in the United States, in Washington State in 2004 and Texas in 2009, respectively.

These cases were only the second and third times that phylogenetic analysis was used as evidence in a criminal prosecution in the United States, despite at least 350 convictions under HIV-specific and/or general criminal laws for HIV non-disclosure, alleged exposure and/or transmission since prosecutions began in the mid-1980s (CHLP, 2010). Of note, both of these cases involved allegations of multiple heterosexual transmissions from a single source. Such allegations are extremely rare in criminal cases.

Phylogenetic analysis requires the use of complex computational tools to create a hypothetical diagram (known as a phylogenetic tree) that estimates how closely related the samples of HIV taken from the complainant(s) and defendant are likely to be in comparison to other samples.

The report refers to several recent studies (including a 2008 study from Keele and colleagues) which suggest to the authors that a “significant genetic bottleneck” may occur during HIV transmission, and that at least three-quarters of infections may result from a single virus. It also notes that since HIV evolves rapidly following initial infection, this results in “increased diversity of HIV sequences within a newly infected individual.”

However, the report argues that if blood samples are taken from the accused and complainant(s) “shortly after a transmission event” the population of viral sequences in one individual would be expected to be more closely related to the population in the other(s) than other populations of viral sequences used for comparison. This is known as a “paraphyletic relationship.” The paper then suggests that “paraphyly provides support for the direction of transmission and, in a criminal case, could be used to identify the index case (i.e., source).”

In both cases, the investigators were blinded as to the identity of the accused and the complainants, which was only revealed in court once they had provided their report to the prosecution. Again, in both cases, the sample they identified as being the source of infection was that of the accused. It is unknown how much weight the judge and jury gave to the phylogenetic reports, but it is known that the prosecution provided a great deal of supporting evidence – including, in the Texas case, contact tracing and HIV testing of most of the complainants’ prior sexual partners – and that it was the totality of such evidence that led to guilty verdicts and lengthy prison sentences in both cases.

The paper and its assertions have been widely disseminated via a press release and several articles primarily aimed at the scientific community. Such articles include quotes from the investigators that suggest their methods are unquestionably sound and it was this evidence alone that led to the guilty verdicts. “This is the first case study to establish the direction of transmission,” Professor Metzker was quoted in an AFP story with the headline ‘ Lab detectives use science to nab HIV criminals’.

He asserted to the American Statesman that “[our analysis] provided sound scientific evidence of the direction of transmission, and from that we could identify the source.”  The article also quotes the main prosecutor in the Texas case, who characterises phylogenetic analysis as “good evidence”.  Of note, the defence attorney in the case is quoted as saying they were unable to find an expert to testify in court against the reliability of Hillis and Metzker’s findings.

“It made a lot of difference in trying the case because we couldn’t find an expert for our side,” he said.

However, Professor Metzker’s claims and the paper’s assertion that he and his colleagues have established that their methodology is both a new and reliable method of proving the direction of transmission has been questioned by several international experts contacted by aidsmap.com. All of the experts have served as witnesses in criminal trials outside of the United States.

These experts all agree that phylogenetic analysis remains an informed but sometimes imperfect estimate of the relationship between viruses. Although there are a variety of methods by which it is possible to increase the confidence that the samples are very closely related in comparison to other samples, there could never be complete confidence that the defendant infected the complainant(s) based on phylogenetic analysis alone.

Anne-Mieke Vandamme, a professor at Leuven Catholic University and Rega Institute in Belgium, has serious reservations regarding the paper’s assertions. “This paper draws unwarranted conclusions,” she tells aidsmap.com. “There is still the possibility that there is a missing link, a consecutive transmission with an intermediate missing link. I would only use such paraphyletic clustering to exclude a direction of transmission. The elimination of all other possible contacts is something to be done outside the phylogenetic analysis.”

Jan Albert, a professor at the Karolinska Institute and Karolinska University Hospital in Sweden, tells aidsmap.com that “the study suggests, but does not prove, transmission between the examined persons. The main reason for the caveat is that the analyses do not exclude the existence of unsampled persons belonging to the same clusters. The paraphyly does not exclude this possibility. In light of this it is surprising that only 20 local controls were investigated in the Washington case and none in the Texas case.”

Thomas Leitner, staff scientist at Los Alamos National Laboratory in the United States, tells aidsmap.com that the methodology described in the paper to test the hypothesis of direction of transmission is not, in fact, new, and that along with co-author Walter Fitch he published a paper outlining a similar methodology eleven years ago. (Leitner T, Fitch WM 1999) He adds that his research suggests that even when all persons involved in an alleged transmission chain are sampled, it may still be the case that the two closest samples in a phylogenetic tree are two individuals who may not have ever met.

Professor Vandamme is also lead author of a paper currently in press with The Lancet Infectious Diseases along with several authors including Professor Albert and Dr Anna Maria Geretti, of University College London Medical School, Royal Free Hospital, in London, which highlights the substantial risk of miscarriages of justice based on a flawed view of the science behind phylogenetic analysis. It concludes, in concurrence with a briefing paper co-authored by Professor Vandamme and Dr Geretti and published by NAM and NAT in 2007, that the only ‘safe’ use of phylogenetic analysis in criminal HIV transmission cases is to exonerate the accused.

A fuller discussion of how phylogenetic analysis and other evidence can – and cannot – be used to establish the fact of transmission from the accused to  complainant(s) in a criminal case can be found in the ‘Proof’ chapter of NAM’s new international resource, HIV and the criminal law.

References

Scaduto DI et al. Source identification in two criminal cases using phylogenetic analysis of HIV-1 DNA sequences. Proceedings of the National Academy of Sciences, published online before print November 15, 2010, doi: 10.1073/pnas.1015673107, 2010.

Abecasis AB et al. Science in court: the myth of HIV ‘fingerprinting’. Lancet Infectious Diseases, 2010 (In Press).

Center for HIV Law and Policy (CHLP) Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions, Vol.1, CHLP’s Positive Justice Project, First Edition, Fall 2010.

Leitner T, Fitch WM The phylogenetics of known transmission histories. Pp. 315-345 in K. A. Crandall. Molecular Evolution of HIV. Johns Hopkins, Baltimore, MD 1999.