UK: HIV transmission case dropped against gay Doncaster man

A case against a gay man in Doncaster, in the north of England, who was accused of ‘recklessly’ transmitting HIV to two male complainants, has been dropped due to lack of evidence – apparently there had been no investigation of the previous sexual partners of the complainants who may have infected them.

I don’t have a lot of details about the case, which I first heard about in March 2009, and I would like to protect the identity of the accused who has obviously been through hell for at least 15 months.

What I do know is this: two men had complained to the police that they believed that they had been infected by the accused during separate dates. (I don’t know whether the complainants knew about each other before they went to the police, or after).

The Crown Prosecution Service (CPS) took their complainants seriously enough to prepare a ‘reckless grievous bodily harm’ prosecution under Section 20 of the Offences Against the Person Act 1861. To prove the element of causation of such ‘grievious bodily harm’ (i.e. HIV transmission), the prosecution must prove beyond reasonable doubt that only the accused could have infected the complainant(s).

I’m reliably informed by the man’s defence lawyer, Khurram Arif, that the trial was meant to commence yesterday at Doncaster Crown Court. The defence had prepared a scientific report examining the likelihood that only the accused could have infected both complainants. The report highlighted that the complainants’ previous sexual partners may also have infected them and that phylogenetic analysis could not rule this out.

Yesterday, the prosecution consulted with its own scientific expert and conceded that since both complainants had previous sexual partners and the police did not investigate nor eliminate them as possible sources of infection, there was no case to answer. This is, in fact, what the CPS guidelines state.

This is one of several cases defended by Mr Arif, where a lack of attention to the detail of what scientific evidence can – and cannot – prove has led to the CPS dropping cases very late in the day. As Mr Arif notes in his email to me: “The prosecution, when making such allegations, have to prove that they have closed all the doors to the possible sources of infection. Again, in this case, they did not.”

The case highlights that in England & Wales, people accused of such ‘crimes’ should never plead guilty and should immediately contact an HIV organisation for advice in order to be put in touch with an expert defence lawywer, such as Mr Arif, who services legal aid clients through Christian Khan Solicitors and private clients through GSC Solicitors.

In addition, complainants need to be aware that making such accusations requires them to reveal their entire previous sexual history and to name all of their sexual partners since their last HIV-negative test. Only when they have all been contacted and tested for HIV can a prosecution actually reach trial.

US: Padieu case gets the 20/20 treatment; phylogenetic analysis totally misrepresented

The case of Philippe Padieu, the French-born Texan found guilty in May 2009 on six counts of aggravated assault with a deadly weapon and sentenced to 45 years for five counts and 25 years for the remaining count – all of which run concurrently – was featured last Friday night on US ABC TV’s tabloid-style news magazine, 20/20.

Five and half million viewers watched as Mr Padieu faced trial by media yet again. All six parts of the one hour show (actually 39 minutes minus commercials) are available to watch online.

Part 1: Women recall HIV criminal’s allure
Part 2: HIV diagnosis rocks women’s lives
Part 3: Women take matters into own hands
Part 4: HIV serial dater faces victims in court
Part 5: Man convicted of HIV crime speaks
Part 6: Women want case known to protect others

It’s basically sold as the story of a group of scorned women uniting to put Mr Padieu behind bars, summarised beautifully by the accompanying story on the ABC news website headlined, ‘How Women United to Stop HIV-Positive Man, Women’s Horror at Diagnosis Replaced With Mission: Stop Man From Infecting Others.’

There’s so much I could say about the show, which is something of a milestone in criminal HIV transmission reporting in the mainstream media, but I’m going to limit my comments about the very worrying misrepresentation of phylogenetic analysis as ‘proof’ that Mr Padieu was the source of all the women’s HIV infection. Perhaps blog readers could fill in the comments sections with insights and criticisms of their own about this programme.

[Update: Catherine Hanssens of The Center for HIV Law and Policy has some terrific comments and insights in her Sept 29th blog post.]

In Part 4 of the show, presenter/journalist Elizbeth Vargas says that it was Mr Padieu’s “own DNA” that proved he was guilty. But phylogenetic analysis is all about testing the genetics of HIV, not the individual. They then showed one of the US’s foremost experts in HIV forensics, Dr Michael L Metzker, of Baylor College of Medicine, Houston, Texas, who testified for the prosecution that Mr Padieu’s virus was extremely similar to that of the six women. Except here he says definitively that Mr Padieu was “the source” of the six women’s HIV. I’ve written about the limitations of phylogenetic analysis many times: the issues are summarised here.

In the final part of the show, we are introduced to ‘Lisa’ who dated Mr Padieu in 1997, and was diagnosed HIV-positive that same year. The show gives Dr Metzker a sample of Lisa’s blood and he says that “preliminary analysis” suggests that Mr Padieu was the source of all seven women’s HIV infection. The show concludes that Mr Padieu “gave Lisa HIV in 1997” and goes on to suggest, without a shred of evidence, that he had been diagnosed earlier than 2005 and knowingly infected Lisa and possibly hundreds of other women.

I’m extremely disappointed in Dr Metzker for totally misrepresenting what phlyogenetic analysis can prove. It is impossible to conclude, given the many limitations of phylogenetic analysis, that Mr Padieu infected Lisa in 1997. It is, in fact, just as possible that Lisa infected Mr Padieu.

I don’t expect 20/20 to explain the science (in fact, I expect them to get it wrong), but I do expect Dr Metzker, who is (was?) considered to be a respected scientist, to be less definitive about his conclusions. Maybe Dr Metzker would like to explain how he could be so sure – it would be very helpful to know if he has developed new, as yet unknown, techniques in phylogenetic analysis that can definitively pinpoint timing and direction of transmission.

US: Texan man found guilty of aggravated assault with a deadly weapon for reckless HIV transmission

A Texas jury has found 53 year-old Philippe Padieu of Frisco, Texas, guilty of six counts of aggravated assault with a deadly weapon. He is the sixteenth person with HIV in Texas to be successfully prosecuted for either HIV exposure or transmission since 1997.

Update: May 30th.

Original posting, from May 28th, below:

Mr Padieu was arrested in July 2007 after two women went to police after testing HIV-positive . The police investigation led to four further complainants.

The case has had widespread media coverage throughout the United States, highlighted in today’s Dallas Morning News story summarising the trial.

After five hours of deliberations, the [jury’s] guilty verdicts were read in a large ceremonial courtroom where the trial was moved to accommodate local and national TV crews covering the case, including ABC’s 20/20.

Prosecutors likened Mr Padieu to a “ticking time bomb, a lethal weapon.”

“It’s as if he took a gun and shot all of them,” prosecutor Lisa King said during closing arguments earlier in the day. “But a gunshot wound heals. In this case, he gave them a virus that causes a disease that may well kill them.”

[Assistant District Attorney Curtis] Howard said, Padieu is “a ticking time bomb, he’s a lethal weapon,” and he likened Padieu to Typhoid Mary. He told jurors that Padieu broke the law by knowingly, recklessly and intentionally having sex with multiple women, exposing them to HIV, the virus that causes AIDS, without telling them.

His defence attorny, Bennie House, argued that Mr Padieu was in denial and that the six female complainants should have protected themselves knowing that unprotected sex can result in the transmission of sexually transmitted infections.

“They asked Mr. Padieu if he was safe, he said yes,” said House. “He’s in denial.” He added, “Mr. Padieu is not a predator. … He likes sex…House said his client’s partners had a responsibility to practice safe sex. “They should have invoked a mantra – no glove, no love,” House said. “If that didn’t happen, they should walk out.”

Another of Mr Padieu’s defence lawyer, George A. Giles, argued – rather unsuccessfully given the many previous Texan convictions for HIV-positive bodily fluids being classed as deadly weapons, including Willy Campbell, who was sentenced to 35 years for spitting at a cop – that Texan law did not specifically say that his client had committed aggravated assault.

[He said that] what Padieu did does not constitute aggravated assault. He suggested that prosecutors go to Austin to lobby for changes in the law if they want to use the criminal code to address the practice of unsafe sex by someone with HIV. “When does he have to tell them or anybody he’s got a disease?” Giles said.

However, since the law in Texas is not HIV-specific, the bar was set much higher for the prosecution to prove that Mr Padieu actually infected the six women. They used one of the US’s foremost experts in HIV forensics, Dr Michael L Metzker, of Baylor College of Medicine, Houston, Texas, to testify that Mr Padieu’s virus was extremely similar to that of the six women, although he came to a conclusion that may not have been totally scientific.

The news website of NBC Dallas Fort/Worth reported:

He said he used a national database of HIV positive blood samples and compared the samples taken from Padieu and his six alleged victims. In what was called a blind study, Metzker never knew who each sample belonged to.

“I wanted anonymous samples,” he said. “I did not want to know the identity of any of the individuals, we treated them all equally, generated the data, generated the alignments.”

Metzker said Padieu is the source of his accusers’ infection.

“One sample stood out as the potential source of most, if not all, of the other samples,” he explained.

However, Padieu’s attorneys got Metzker to admit that the study reaches a conclusion, but cannot be called an absolute fact.

The defense is focusing on the fact that HIV can mutate and change over time.

Mr Padieu will be sentenced tomorrow (Friday May 29th). He faces sentencing that ranges from five to 99 years in prison on each of the six counts.

UK: Gonorrhoea prosecution ‘a dangerous development’

I am posting an excellent analysis by Dr Matthew Weait, Senior Lecturer in Law and Legal Studies at Birkbeck College, London (and author of Intimacy and Responsibility: The Criminalisation of HIV Transmission) of the recent successful prosecution of a male migrant for ‘recklessly’ transmitting the sexually transmitted infection, gonorrhoea, through non-sexual means.

A Dangerous Development
by Dr Matthew Weait
Senior Lecturer in Law and Legal Studies
Faculty of Lifelong Learning
Birkbeck College, London

In the recent case of R v Peace Marangwanda [2009] EWCA Crim 60, the English Court of Appeal was called upon to hear an appeal against sentence that has potentially profound implications for debates surrounding the criminalisation of HIV and other serious sexually transmissible infections. Summarised, the facts were that the applicant (PM) had been charged with two offences of sexual activity with a child, contrary to section 9(1) and (2) of the Sexual Offences Act 2003. It had been alleged that PM had met the mother of the children (E and Z), started a relationship and moved in with her in September 2005. In November 2005 PM was diagnosed with gonorrhoea, and he received treatment. A month later, in December 2005, the children, E and Z, were diagnosed as having contracted gonorrhoea. PM was charged, prosecuted and tried in 2007 after E made a complaint fo sexual abuse. The jury could not agree on a verdict after hearing PM’s defence that he was not suffering from gonorrhoea at the relevant time, and that it was rather a severe from of thrush. A retrial was scheduled to take place in June 2007. Prior to the retrial a compromise was suggested by defence counsel whereby PM would plead guilty to two counts of recklessly inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. on the basis that he had recklessly transmitted gonorrhoea to E and Z.

The plea was entered

“ … on the basis that the Defendant, whilst possessed of the knowledge that he was suffering from gonorrhoea, recklessly passed on the said gonorrhoea to the two complainants.

2. Such transmission was carried our not in any way by means of any sexual contact, direct or indirect. Such transmission was likely to have been occasioned in circumstances where the Defendant, after having touched himself and then failing to apply the proper hygiene standards, has then gone on to touch the children in an ordinary way. The Defendant would, on occasion, be involved in the daily care of the two young Complainants. This would include assisting with washing, dressing and general supervisory activities with the same.

3. It was foreseeable that such a condition as gonorrhoea could have been passed and accordingly the Defendant failed in ensuring that he adhered to the proper sanitary and hygienic principles which would have been ordinarily implied.”

PM was sentenced to two years immediate imprisonment on each count, to be served concurrently. He was also recommended for deportation, disqualified from working with children for life and made subject of a Sexual Offences Prevention Order.

PM appealed on a number of grounds, one of which was that he had pleaded guilty to offences that were not medically possible and another that, even if it were medically possible, he had not acted recklessly. (The two other grounds are not of such immediate relevance here and are not discussed – see the case report.) The Court of Appeal agreed that the sentence passed was manifestly excessive and that a sentence of 12 months on each count should have been passed, to be served concurrently. For legal reasons this meant that the order relating to not being able to work with children was quashed, but the other orders were upheld.

Discussion

This is an important and worrying decision for a number of reasons. The plea of guilty to the charges under section 20 were entered on the understanding that the gonorrhoea had been passed through casual touching. PM, it was accepted, cared for E and Z (which included physical touching). The pre-sentence report (which is prepared to assist the judge in sentencing) stated that

“The defendant has pleaded guilty to the offence in accordance with the basis of plea, namely that he inadvertently passed on gonorrhoea to the two children due to poor personal hygiene.

Mr Marangwanda was, at the time of the offence, in a relationship with the mother of the two victims. He was periodically living at the family home and as such will have regular conduct with the children.

The defendant accepts culpability in as much as he acknowledges he passed on the sexually transmitted infection to the two girls due to poor personal hygiene.

…

The defendant accepts that his behaviour was reckless and that as a result, two young children contracted a sexually transmitted infection.”

It was on this basis that PM was sentenced, and the Court of Appeal accepted the reasoning. It states (at paragraph 12) that

In the judgment of this court, by his plea, the defendant accepted the medical possibility of the transmission of that disease. As he knew he had gonorrhoea, provided he knew that that disease may be transmitted by transference of mucosa by hand, that transference would have constituted a reckless act …

The Court goes on to say (at para 13) that

… by virtue of the basis of plea and the applicant’s pleas, he must have been accepting the possibility that in a domestic or familial setting the disease could have been transferred. In such circumstances it would have been his duty to take the necessary protection to ensure there was no transference. We are not persuaded that there is anything in that ground of appeal.

This is, it is suggested, deeply problematic, as are other aspects of the case. First, the Court seems to be suggesting that there is a duty to take the necessary protection against the transmission of disease. With respect, there exists no such legal duty anywhere in English law. A person is not reckless because he fails to take precautions against transmission; he is reckless if it is established that he was aware of the risk of transmission. This might seem a fine distinction , but it is an important one. If the Court is thinking particularly of the positive obligation that a carer has towards children, then it should have articulated that far more clearly. In the absence of clarification it suggests that a person living with HIV has a positive obligation – enforceable at law – to prevent onward transmission to sexual partners. (And, in the light of the recent Hep B case, that those infected with Hep B may have a positive obligation to alert others not to share their razors, for example). This goes beyond the principles established in R v Dica and R v Konzani. The CPS Guidelines on prosecuting cases involving the sexual transmission of disease indicate that the appropriate use of condoms by a person living with HIV would ordinarily preclude a finding of recklessness – they do not (because the law does not require it) state that a person living with HIV is under an obligation to use a condom (or, of course, to disclose status).

Another problematic aspect of the decision is that appears to be a bad compromise. The plea was entered and accepted in part, it seems, to prevent E (the child complainant) to have to give evidence at a retrial. It is for this reason that what would otherwise have been a case involving alleged sexual offences was transmuted into one concerning offences against the person. This was arguably artificial, and (as the discussion above about the Court of Appeal’s comments about the nature of PM’s duty shows) has resulted in – it is suggested – flawed reasoning.

Finally, although it wasn’t addressed in the Court of Appeal’s judgment, there remains the question of knowledge and scientific evidence of transmission. What follows is speculative in the instant case, but important, I think, to bear in mind.

1. PM moved in with E and Z and their mother in September 2005. He was diagnosed with gonorrhoea in November 2005 and the children in December 2005. If there is any possibility that PM may have infected E and Z prior to his diagnosis, and before he had any reason to believe that he might be suffering from gonorrhoea, there was no case to answer (see R v Dica; R v Konzani).
2. If, as the Court of Appeal accepted (albeit because of the “artificial” nature of the settlement that was reached on plea to avoid retrial) that gonorrhoea may be spread manually as the result of poor manual hygiene, then questions should have been raised as to the possibility that the source of the infection may have been elsewhere. There appears to have been no scientific evidence adduced, and the prosecution did not – it appears – seek any. The CPS Guidelines make it clear that there needs to be compelling proof that the defendant is the source of a complainant’s infection – and (critically) that a guilty pleas should not be accepted unless the prosecution believes that there is sufficient evidence to prosecute. Cases involving HIV transmission have fallen because of this.

The Marangwanda case is unfortunate because it appears to be yet another example of the ways in which the ill-thought out approach of the courts to liability for the transmission of sexually transmissible diseases can – in the absence of clear thinking and understanding – have unintended effects.

Matthew Weait
23rd April 2009

Canada: Johnson Aziga and questions about the virological evidence

Here’s an excellent piece analysing flaws in the recent Johnson Aziga trial by Chris Morley, HIV Policy, Information and Publications Coordinator at George House Trust in Manchester, England. He writes this in a personal capacity.

He has had first-hand experience with some UK criminal HIV transmission cases, and contributed significantly to the HIV Forensics chapter of my book. He originally wrote this as a comment on my posting about the scientific evidence in the trial, but I thought it deserved a posting in its own right. He’s also written about the trial on the GHT website.

Johnson Aziga and questions about the virological evidence
by Chris Morley

Call a virologist

The defence lawyers failed to follow a key lesson from some recent English cases – which is to call a virologist, expert in HIV, as an expert witness, or at the very least commission an expert HIV virologist’s report to use as evidence.

Because the state called Dr Paul Sandstrom, director of the Public Health Agency of Canada’s national HIV and retrovirology laboratories as its scientific witness, there was a critical need to have an internationally respected independent expert HIV virologist giving evidence for the defence.

In well represented recent English cases, some level of expert HIV virologist involvement has led to a not guilty verdict, acquittal, case dismissed, and cases being abandoned. It makes a crucial difference to the outcome. It may not always cast enough reasonable doubt on all prosecution claims, but the English experience so far is all of prosecution failures where this is used, and usually of prosecution successes when it isn’t used.

From my reading of reports about the scientific evidence an expert virologist would have been able to question, or even demolish the assumptions and conclusions put forward by the prosecution.

Here’s the report, from The Hamilton Spectator, of the testimony of Dr Sandstrom:

“We were able to determine that all of the complainants and Aziga had a phylogenetically distinct form of HIV and that Mr. Aziga had the virus prior to contact with any of the women,” Sandstrom said. …..

Aziga and the women in the Hamilton infection cluster all had Clade A, which is rare in North America but endemic in Aziga’s native Uganda.

In this country, fewer than 2 per cent of those newly diagnosed with HIV have subtype A.

Phylogenetic analysis examines small differences in HIV genes by coding sequences of the HIV genome and comparing them to other HIV sequences in public databases.

HIV virologists can only determine the degree of similarity between two samples. They can’t produce a definitive match because unlike human DNA, HIV is not unique to an individual.

The analysis is also unable to determine the direction of transmission, Sandstrom said. So, theoretically, one of the women could have infected Aziga, instead of the other way around.

To resolve that issue, Sandstrom obtained a frozen blood-plasma sample drawn from Aziga after his HIV diagnosis 12 years ago. The specimen — collected before Aziga met any of the women — was phylogenetically analyzed and found to be nearly identical to the Hamilton infection cluster, comprising Aziga and the seven HIV-positive women.

“It means Mr. Aziga did not become infected by any of the women and that he had already been infected prior to contact with any of the women,” Sandstrom said.

No Proof

This does not fully address or prove transmission from Johnson Aziga at all – other explanations are at least a possibility, and need to be ruled out. Mr Aziga and the women complainants are not the only people in Canada with subtype A – there are over 1000 other people diagnosed with it and more who are undiagnosed. One or more of the others with HIV-A might have been the source of one or more women’s HIV.

Sandstrom did not consider it part of his job to explore this, or try to exclude this as a possibility. As the leading state HIV virologist he had a professional obligation to attempt to resolve this uncertainty and present the full picture. It would either have strengthened or weakened the prosecution case. Either way it needed checking.

Not my job to check

He was cross examined about this by the defence who argued that although Aziga and the women share a related virus, that did not mean that other persons, still unknown, might not also be carriers and part of the same transmission network. “It still remains, that your investigation does not rule out the possibility that there are other people ‘out there’ who are a part of the same infection cluster,” suggested the lawyer. Sandstrom said his investigation was “not directed at finding additional complainants or additional suspects,” but at providing confirmatory evidence for the footwork done by Hamilton police.

And the police, under cross examination, said it wasn’t their job either, to look for other possible sources of the women’s HIV.

Miscarriage of Justice and reversed burden of proof

This leaves me with serious concerns that there has been a miscarriage of justice. The defence is left to carry out an investigation, without police powers or resources, requiring the taking and testing of blood samples and complex and expensive scientific analysis, in an attempt to show there are other credible explanations. Does this not unfairly reverse the legal burden of proof?

Sexual history of complainants must be a central part of all transmission investigations

With HIV transmission cases, the proper police investigative practice of not looking into a rape complainant’s own sexual history, is often adopted. A woman’s sexual history is irrelevant to whether she was forced to have sex by someone; however it is critical to establishing which of her partners might have been the source of HIV in a consensual encounter. To attempt to prove X did it, you have to at least rule out A, B, C etc. And this at least can be proved conclusively with virology (HIV virology can prove someone didn’t transmit that HIV, but it can’t prove who did).

Rarely are the circumstances such that a complainat can be absolutely sure which of several partners might have been the source. The police are used to checking statements and seeking corroboration for everything. Why are claims about who transmitted HIV treated as if they cannot and must not be questionned? Why don’t the police routinely seek, and prosecutors demand, corroboration by ruling out all other possibilities?

For example, one of the women who died (H.C.) had three previous partners in recent years, two of whom were also migrants from Africa and, if HIV positive, likely also to have HIV-A. And an earlier date of infection from one of these men would better explain her surprisingly rapid development and death from Burkitt’s lymphoma, all apparently within 3 years or so of her supposed infection by him. (Reported here based on reports in The Hamilton Spectator )
And regarding the other women, see for example this article in The Hamilton Spectator.

Reasonable doubt opportunity wasted

With prosecution and defence expert witnesses contradicting each other, reasonable doubt would be raised far more strongly. Instead of calling an expert in HIV virology, the defence called Rafal Kustra, an associate professor of biostatistics with the Dalla Lana School of Public Health at the University of Toronto. He was not able to make much of an impact, saying he was “underwhelmed” by the level of analysis used by Ottawa scientists who concluded that Johnson Aziga and seven HIV- positive women carry viruses that are so closely related they can be described as a single “Hamilton transmission cluster.” He criticised the method used by Sandstrom and that was about it. He didn’t produce any new evidence, and wasn’t even invited by the defence to offer a different interpretation of the same facts, or say what further evidence was needed, and which questions need to be answered, before the prosecution’s case can become credible scientifically.

The defence barrister did criticise the prosecution’s scientific claims and failure to eliminate other potential sources of HIV. This does not carry any real weight with judge and jury – in legal terms it is not evidence, more an argument. The defence lawyer is not a scientific expert who can credibly contradict Canada’s head of HIV virology, no matter how right he may be. He tried, but didn’t call an expert virologist as a witness who could have made the argument convincing with fresh evidence and interpretation based on professional expertise.

An independent expert virologist might have been able to show, for one or more of the infected, scientific reasons why the prosecution are drawing the wrong conclusions and missing out vital evidence.

Establishing reasonable doubt is the job of the defence. Succeed, and the judge would then have pointed this out to the jury. The judge’s response to reasonable doubts should lead to a not guilty verdict, or acquittal, on one or more of the charges.

Not guilty verdicts and acquittals might not have produced justice, but there doesn’t seem to be much certainty of justice in this verdict, from what I have seen reported.

No-one knows for a scientific fact whether or not he did transmit HIV to the 7 people whom the prosecution claim he infected. This can never be proved with current scientific techniques. The essential virological analyses and testing of other partners, that might have shown the virological connections between the HIV samples could have more than one credible explanation, seem to have been omitted.

The apparent failure to eliminate from suspicion the women’s other / previous partners raises serious doubts about any scientific claims made that he was the source, because those claims seem based on only some of the potential scientific evidence.

Herd mentality

A herd mentality can develop in big trials and high profile cases. The pressures to secure a conviction are huge. In cases involving HIV transmission, some of the media behave like a baying mob. Police and prosecutors may become convinced they have their man and be unable to entertain any other possibility. We’ve much experience of this in England and this case has the hallmarks of another, but in Canada.

Dysfunctional justice?

It’s a case that shines a light on the Canadian justice performing badly in a major trial. It seems there are errors as much in the prosecution, police investigation and justice procedures, as well as tactical mistakes by the defence. He’s been five years in prison awaiting trial and this was his 6th team of lawyers. This case makes the Canadian justice system look dysfunctional. I hope it redeems itself at the appeal stage.

Germany: Complexities of scientific evidence discussed in Spiegel magazine article

The plight of Nadja Benaissa, the No Angels singer arrested last week in Frankfurt for alleged criminal HIV exposure and transmission has already resulted in more international media attention on the issues around criminalisation than any other case I’m aware of.

Although the recent murder trial of Johnson Aziga in Canada led to a great of press and soul-searching within its own borders, Ms Benaissa’s celebrity has resulted in coverage far beyond Germany.

Today, Time magazine in the United States, ran a nicely balanced article summarising the case, and including the first quote I’ve seen from No Angels manager, Khalid Schroeder.

…manager, Khalid Schroeder says Benaissa’s arrest is the result of “a witch-hunt against Nadja. She is being prejudged. The investigation is still continuing and there are no hard facts yet. This is unfair. We want her to be released as soon as possible.”

It also quotes yet another spokesperson from Deutsche AIDS-Hilfe, who eloquently sums up their objections to her arrest and to criminalisation in general.

AIDS groups have criticised the authorities’ handling of the arrest and have warned against a rush to criminalise the transmission of HIV. “Based on the information that we have about the detention of Nadja Benaissa, we think she should be released,” says Carolin Vierneisel, a spokeswoman for the AIDS organisation Deutsche AIDS-Hilfe. “When it comes to consensual sex, whether protected or unprotected, we talk about shared responsibility,” she says. “The criminalisation of HIV transmission, as shown in this case, doesn’t support HIV prevention efforts. On the contrary, it fosters the stigmatisation of HIV positive people.”

Meanwhile, Germany’s answer to Time, Der Spiegel, today published an English-language article that examines the difficulties the Darmstadt prosecutor faces in proving that Ms Benaissa actually infected the male complainant. This is the first time I’ve ever seen the discussion of the unreliability of phylogenetic analysis in a mainstream magazine article.

Investigators in the case have since ordered an immunological report to clarify if the 26-year-old singer actually infected her former partner with HIV.

Experts like Norbert Brockmeyer, a spokesman for HIV/AIDS, a network of experts funded by the German government, is doubtful if such a report can be of much value.

“The absolute proof that person A infected person B cannot be provided by medical means after a number of years,” Brockmeyer, a professor of dermatology and allergology, told SPIEGEL ONLINE. He explains that the virus would have mutated too much in each of the bodies — particularly if those infected have undergone medical treatment.

Of course, that isn’t the whole story (and it’s a virological, not an immunological report, this is required). Even if there are stored blood samples available from 2004 – when the alleged transmission occurred – it is still impossible to tell from a virological analysis the timing and direction of transmission. And to rule out that someone with a similar virus (and there will be many, many people with similar viruses) didn’t infect the male complainaint, they would need to test all of the man’s previous sexual partners between his first HIV-negative test and first HIV-positive test (assuming he’d previously taken a test) and include those samples in the analysis. In the English courts, this limitation alone has resulted in charges being dropped in three recent cases.

Canada: Scientific evidence challenged by Aziga’s defence

Two months after the Crown rested its case against Johnson Aziga – accused of first-degree murder due to the death of two women with whom it is alleged he recklessly infected with HIV – his defence team is rigourously questioning the scientific evidence that the Crown had said linked Mr Aziga with the seven complainants allegedly infected with HIV (an additional four complainants allege that Mr Aziga had unprotected sex without disclosing his HIV status, but they are HIV-negative).

Previously, Paul Sandstrom, Director of National HIV and Retroviral Laboratories at the Public Health Agency of Canada, had testified that Mr Aziga and the seven HIV-positive complainants shared the same HIV subtype, clade A, which is rare in Canada but endemic in Uganda, where Mr Aziga is from.

Sandstrom’s evidence was that Aziga and the women had viruses so genetically similar they would have come from a common ancestor. He said they formed a unique transmission cluster when compared to other clade A viruses in Canada and internationally.

(Source: The Canadian Press)

However, defence lawyer, Davies Bagambiire who is aware of the precedent-setting English case from 2006 which established that scientific evidence – specifically phylogenetic analysis – is not as cut and dried as other forensic tests relied upon by the criminal justice system, such as genetic fingerprinting.

The lawyer claimed police and prosecutors had “tunnel vision from the beginning to the end” of the case.

“The fact that there were other possible sources of the HIV for the women who tested positive was never even contemplated,” he said.

Bagambiire noted most of the women had met Aziga in “risky environments,” such as lower-class bars and night clubs in Hamilton and Brantford.

“The evidence is that other men could have been possible sources of the HIV,” said Bagambiire.

He pointed specifically to a Brantford man, who is the current partner of one of the HIV-positive women, and who subsequently was found to have had unprotected sex with both her and another complainant in this case.

“Some men who engaged in sexual activities with the complainants left the country without ever having been directed to take an HIV test. Some of their names are not known and their HIV status is not known,” he said.

Source: The Hamilton Spectator

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

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

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

Swedish health agency blasted for HIV stance

By LOUISE NORDSTROM

Associated Press

22nd October

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UK: Reckless HIV transmission case dismissed due to insufficient evidence

Some good news from the UK (actually, it’s the law of England and Wales that this case is relevant to). I reported this story today on NAM’s website, aidsmap.com.

Reckless HIV transmission case dismissed due to insufficient evidence

Edwin J. Bernard, Monday, February 11, 2008

The case against an HIV-positive man charged with grievous bodily harm for allegedly ‘recklessly’ sexually transmitting HIV was dismissed at Manchester Crown Court last Thursday following legal argument.

A 39 year-old man had been charged under Section 20 of the Offences against the Person Act 1861 (OAPA) – recklessly causing serious bodily harm – last September. An application for bail had been refused on the grounds that there was a risk other offences could be committed; consequently, the man had been in custody since his arrest.

The complainant was a 37-year-old woman who tested HIV-positive in September 2007, after the accused man had provided her name to clinic staff for contact tracing purposes.

In his application to dismiss the case, defence barrister, Alan Walmsley, noted that since this was her first-ever HIV antibody test, and since the complainant had admitted to at least five sexual partners in the twelve months before her diagnosis, the evidence was insufficient for a jury to be able to convict.

Judge Martin Rudland agreed, and said that this opened up the “possibility of the infection…being potentially from sources other than the defendant. The more the arguments have unfolded, the more I’ve become alive to the prospect of an injustice.”

“I suspect the defendant probably infected the complainant,” he noted, “but that is a long way short of what the prosecution need to prove.”

According to a report in today’s Manchester Evening News, Judge Rudland freed the defendant with these words: “You are still HIV-positive. You still have clear obligations [to those] with whom you have sexual relations. You are still likely to be a defendant in criminal proceedings if you do not behave. Do you understand?”

The man answered that he did, and then left the court a free man.

This is the third time that a lack of evidence in an English prosecution for HIV transmission has resulted in the defendant being cleared.

In August 2006, a gay man was acquitted of ‘reckless’ HIV transmission at Kingston Crown Court, following evidence that phylogenetic analysis could not definitely prove that the defendant infected the complainant.

In February 2007, in a case that went unreported at the time, a Preston Crown Court judge dismissed a ‘reckless’ HIV transmission charge against a gay man due to the fact that other sexual partners of the complainant – who may have been the source of his infection – did not agree to have blood samples taken for HIV testing or phylogenetic analysis.

The defence lawyer in all three of these cases, Khurram Arif, of London solicitors, Hodge Jones & Allen, tells aidsmap.com: “This case highlights the principle that the Crown Prosecution Service has the burden of proving the reckless transmission of HIV. Proving who caused whom to be infected without scientific and medical evidence is extremely difficult. The sexual history of complainants and medical records are material when considering the possible sources of infection and in my opinion should be made available to the defence very early when causation is in issue.”