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Disclosure and Hysteria
Jun 1, 2009

With the recent reporting of high profile cases involving disclosure in the US and Canada; finding people with HIV guilty of "murder", I am very worried about any potential sex partners I may have in the future. I plan on disclosing to them via e-mail so that I have proof, but is a legal document necessary for them to sign? If you read comments of people who read about these cases....people with HIV are seen as "perverts", "sex predators", "human beings not worthy of living", "animals". Some wanted HIV poz people to have their sex organs cut off, tortured and killed. This is the climate the United States court system is creating....hysteria among the non educated mass population. It is very scary, we don't have a chance in front of a jury. Please advise Dr. Frascino if a legal document is now required to have sex.

Response from Dr. Frascino

Hi,

Signed legal documents disclosing HIV status are not required prior to having sex! If you orally disclose, that's all that's legally required.

The recent cases involving criminalization for nondisclosure are counterproductive to controlling the HIV pandemic. (See below.) Fortunately some cases are being decided by more enlightened courts. (See below.)

Hopefully President Obama's national HIV/AIDS strategy will help promote science and common sense to overcome the hysteria, myths, stigma and fears that currently prevail. Education remains the key.

Dr. Bob

Criminalization is a shame and absolutely useless (CRIMINALIZATION OF HIV) (CRIMINALIZING HIV NON-DISCLOSURE, 2009) May 30, 2009

I was reading the article about the Iowa man sentenced for 25 years because he didn't disclose his status. If we continue so nobody is willing to make the test and the consequences would be devastating. I know people that refuses to get tested because they fear stigma and criminalization. Why you can end in jail for not disclosing HIV but not for similar dangerous viruses like hepatitis or HPV which causes cancer?

Response from Dr. Frascino

Hi,

I absolutely agree with you! Criminalization of HIV non-disclosure is counterproductive. I'll reprint below some information from the archives where I discuss this topic.

Dr. Bob

You miss the point entirely Feb 23, 2009

While I generally respect your advice and opinions...I must say that you miss the point entirely regarding disclosure. Clearly you are an educated and intelligent man, therefore I find it hard to believe you confuse "criminalizing HIV" and criminalizing the reckless endangerment of other peoples lives. The criminal act in the post "Curiosity Killed the Cat?" is the failure to disclose , not the fact the person was POZ. What is criminal is the act , not the disease, and I'm pretty sure you know that. Its plain common sense that if someone knows they are positive, then discloses after the fact, then they have committed a criminal and unethical act. The fact is condoms break, slip, and oral transmission does, albeit rarely, occur. If someone inquires as to status before sex, this is a risk reduction behaviour to try and understand the risks they are taking given the afformentioned accidents can and do occur. After a condom breaks is not the time to be forthcoming. As a gay man who has always had safer sex, I know of at least two times a partner did not disclose and I found out later they were poz, after lying and saying they were neg... Fortunately condoms were effective these times, but Im not so naive to think one will not eventually break or slip..ie: I now face a similar situation and possible exposure due to a condom slip where once again, someone lied and on pressing them I find out they are positive. With all the other efforts you make to treat and prevent this epidemic, Im surprised at your selective soft stance on such reprehensible behaviour. Being poz is not a ticket to be selfish and withold life endangering information. In post after post, I notice you consistently lambast bi and closet gay guys to be honest and tell thier wives about thier sexual escapades with men. You say its the "right thing to do." While we understand that its difficult living with HIV, its no easier for a straight man to tell his wife hes just had sex with a man than it is for a gay man to tell someone they are poz. We all agree that safety rests with the individual, but every indidiviual has a right to know the the risks they are taking given safe sex failure rates. The fact that 25% of people who are infected dont know is irrelavent for those that do. Its a pretty lame excuse to not disclose. All that statistic does is reinforce the need to use condoms no matter what someone tells you, because aside from the likely hood they will lie to you about it, they may not even know. If by not "criminalizing HIV" you mean de-criminalyzing non-disclosure I must object to this selfish idea. If a single life is saved from infection because a person had the opportunity to make an informed decision on thier own safety then the law has been effective. Most are not suggesting making being poz a crime. But if you carry a potentially life threatening infection and knowingly put others at risk then yes you are a criminal, and should be prosecuted as one. Lets dont attempt to make this look like a witch hunt for HIV poz people. Its a law in place to attempt to prevent a behaviour that clearly is criminal. Not to mention, its just the right thing to do.

P.S. Surprise me and have nerve to post a dissenting opiniom.

Response from Dr. Frascino

Hello,

Why would it "surprise" you that I have the "nerve" to post a dissenting opinion (not "opiniom," by the way)? Actually I do indeed have a dissenting opinion and believe it is actually you that are missing the point!

Let's start with what we both agree on. Everyone should know their HIV status and should disclose their status before hitting the sheets. However, we all know not everyone knows their status and that disclosure doesn't always happen. Sometimes people are drunk or high. Sometimes they are caught up in the passion of the moment. Sometimes they may be in a noisy dark backroom sex club. Sometimes they may not realize they are a transmission risk because they misunderstand that undetectable does not mean noninfectious. The list of possible reasons disclosure didn't occur is quite extensive. Criminalizing nondisclosure may seem at first glance a good idea. But is it? I think not and there is considerable support (and science) to back up my opinion. Around the world there have been many cases of HIVers criminally prosecuted for conduct risking the transmission of HIV. Many of these cases were based on misinformation and prejudice and have lead to a miscarriage of justice. In addition, criminalization of HIV (or criminalization of nondisclosure of HIV) promotes stigma and discrimination. Branding a behavior criminal can and has led to the belief that HIVers are "potential criminals" and consequently a threat to the general public. Logically this can deter people from getting tested, even if they think they might be infected. This hinders HIV-prevention efforts. In essence criminalization of nondisclosure is counterproductive and undermines the public health message to know your status and avoid behaviors that increase risk of HIV transmission. Criminalization can also create a sense of false security among neggies. With criminalization of nondisclosure in place, John (or Jane) Q. Public could feel this reduces his risk and that he is now protected or at least at less risk for infection. In reality this is not the case. It's important to note most cases of HIV transmission occur between a neggie and HIVer who does not know he is infected. Consequently criminalization would be irrelevant in the vast majority of cases. In reality cases of malicious intent to infect someone with HIV are incredibly rare and could be dealt with under existing "reckless endangerment laws" that are already on most books. Some criminalization laws punish "intent" while others punish "knowledge." Careful consideration of this entire subject by many international organizations has all come to the same conclusion: Efforts to criminalize HIV transmission are misguided and counterproductive. For instance, check out the extensive report published by the Joint United Nations Program on HIV/AIDS (UNAIDS): "Criminal Law, Public Health and HIV Transmission."

You state that "if a single life is saved from infection because a person had the opportunity to make an informed decision on their own safety then the law has been effective." Sorry, again I disagree. Even if criminalization of HIV saves that single life (which is doubtful ay best) but ultimately results in undercutting gains we've made in the fight against the pandemic resulting in more people becoming infected because people are afraid to know their status and therefore don't get tested, the law, from a public health point of view, has been a colossal failure. Criminalization will drive the epidemic back underground, allowing the virus to spread undetected.

Bringing this back to your specific case, your behavior should not change whether your partner discloses or not. The same safer sex practices should be adhered to. You might say you'd electively choose not to have sex with HIVers. Fine. Tell that to your bedmates before you take their tighty whities off. But remember, 25% of HIV-positive Americans have absolutely no idea they are infected with the virus. Criminalization of HIV has never proven to be a determent to behavior. Rather, it has proven to be a determent to getting tested and knowing one's HIV status. Studies have shown once folks know their status they are much less likely to engage in risky behavior. Criminalization of HIV, including criminalization of non-disclosure, is NOT the right thing to do.

Dr. Bob

I agree with Dr Bob about criminilizing of non disclosure (CRIMINALIZATION OF HIV) (CRIMINALIZING HIV NON-DISCLOSURE, 2009) Feb 24, 2009

Hello, Dr Bob! Thank you for your always caring answers. I would just like to tell you about the situation in Sweden where I live. Sweden is the only country in Europe where its a criminal act not to disclose your hiv positive status before having sex. In Sweden it is also forbidden for an hiv positive person to have unprotected sex with an hiv negative person even though that person is consenting. It is always the hiv positive person that is responsible, even for the other persons health. The effect is, as you say, that people do not dare test themselves, but maybe worse, people fall ill in aids before their hiv status is discovered. In 2007 out of 71 cases of aids, 54 didnt know they had hiv. There are also cases of blackmailing, where negative ex partners threaten hiv positive ones. The situation as a hiv positive in Sweden is hence very insecure and indeed very stigmatized. I am not saying that I as am hiv positive person should be able to fuck around unprotected, but that there are problems with the criminalizing. Actually you dont have to post this, just wanted to thank you. :)

Hugs Mr J.

Response from Dr. Frascino

Hello Mr. J.,

Thank you for writing in with a real life example of the negative consequences associated with criminalizing HIV nondisclosure!

Dr. Bob

Curiosity Kills the Cat? Feb 18, 2009

One month last year I tested negative. A few months later I tested positive. My ID doctor assures me I was diagnosed during seroconversion. He dates the infection to up to six weeks before I got sick and was seroconverting. I made a list of my partners. A few guys in that period. I had no risky sex, no ejaculate in my mouth, no anal sex without condoms. Obviously there was transmission however.

One partner claimed, the evening we spent together, to be HIV negative. Impotent, he used a syringe to get an erection.

A few months after I converted, I learned through the grapevine he is HIV+. I asked to meet him a few times, but he avoided me. Finally we spoke on the phone. He confirmed he is positive, on treatment, and undetectable.

I asked him when he went on treatment and didn't get a clear answer. He was casual and rather creepy in his lack of concern that I was wondering if he transmitted HIV to me. When I asked why he had lied about his HIV status, he said it didn't matter.

I live in place where the police will investigate criminal transmission of HIV. If he is treated, the medical records may show when he was identified positive and when he bagan treament. Before I might file a legal complaint, I will ask him to show me his medical records because he seems too stupid or too unconcerned or too immoral to accept responsibility for his lie. Whether or not he infected me, who is to know without scientific investigation?

But, as I said, this could be asked for where I live.

I have two questions for you 1) My ID does not want to discuss anything that has anything to do with a legal issue - no comment. He says the risk is small for this person as a suspect. Is the risk small for an injected penis and lots of oral, but no ejaculation, and no unsafe anal sex? It seems small to me, too.

But if it was him, I think he should learn better practices concerning his impotence injections, and also always be honest with a partner. You know, if he was untreated when we slept with each other, maybe he had a high viral load and that led to transmission, somehow.

If he was ignorant about the small risk, I guess I can't destroy his life with a legal process.

Second quetion, would you as a treating doctor give impotence injection prescription to an HIV+ man? What would be your safe sex counseling for that? Would it matter to you if the patient were on HAART or not, to prescribe that needle?

Thanks

Response from Dr. Frascino

Hello,

Sorry to hear about your recent diagnosis.

1. I too would agree your HIV-acquisition risk was extremely low.

2. Yes, I would treat erectile dysfunction in someone with HIV disease. Safer sex techniques and advice would be the same as for anyone else.

While I strongly agree everyone should be forthcoming regarding their HIV status, I even more strongly disagree with criminalizing HIV.

Dr. Bob

Swiss court accepts that criminal HIV exposure is only 'hypothetical' on successful treatment, quashes conviction (updated) printer friendly version send to friend glossary comment

Edwin J. Bernard, Wednesday, February 25, 2009

In the first ruling of its kind in the world, the Geneva Court of Justice has quashed an 18-month prison sentence given to a 34-year-old HIV-positive African migrant who was convicted of HIV exposure by a lower court in December 2008, after accepting expert testimony from Professor Bernard Hirschel one of the authors of the Swiss Federal Commission for HIV/AIDS consensus statement on the effect of treatment on transmission that the risk of sexual HIV transmission during unprotected sex on successful treatment is 1 in 100,000.

Note: This is a revised version, updated on March 10th, clarifying information included in the first edition.

The case began in Lausanne in March 2006. The man, originally from the Democratic Republic of the Congo, was convicted of having unprotected sex without disclosing his HIV status to a female complainant. Although the woman was not infected, Article 231 of the Swiss Penal Code allows prosecutions against HIV-positive individuals for having unprotected sex, with or without disclosure. Individuals can also be prosecuted under Article 122, for "an attempt to engender grievous bodily harm".

The man was also found guilty of several other crimes, including theft, fraud and sexual harassment, and was sentenced to three years in prison. A February 2007 appeal reduced this to 28 months.

A second complaint last year led to the man standing trial again, in Geneva in November 2008. According to a report in The Geneva Tribune, an expert medical witness had testified that although treatment greatly reduces the risk of transmission, there remained a residual risk.

Although the man's lawyer, Nicole Riedle, had entered the statement by the Swiss Federal Commission for HIV/AIDS into evidence, and Geneva's deputy public prosecutor, Yves Bertossa, had wanted to suspend the hearing in order to consult with the Commission, the lower Geneva court declined to accept any further evidence and he was sentenced to 18 months in prison in December 2008.

Late last month, Mr Bertossa told the Geneva Court of Justice that he was persuaded by the Swiss Federal Commission for HIV/AIDS that the risk of transmission for an HIV-positive individual on successful treatment was less than 1 in 100,000 and that under the circumstances he wanted to drop the charges.

On Monday, the Geneva Court of Justice acquitted the man, who was freed after spending almost three months in prison.

Significantly, it was Geneva's deputy public prosecutor, Yves Bertossa, who called for the appeal. He told Le Temps that despite the fact that there is still some debate regarding the residual risks of transmission in people on successful treatment this should not influence justice: "One shouldn't convict people for hypothetical risks," he said.

Professor Hirschel told aidsmap that he was very pleased with the outcome. It was, he said, the main reason that he and his colleagues were motivated to issue their January 2008 statement.

Deborah Glejser of Swiss civil society organisation, Groupe SIDA Geneve, told aidsmap that although the law allows for prosecutions for unprotected sex even when disclosure has taken place, in practice, prosecutions for HIV exposure usually only take place when there is no disclosure, and that a suspended sentence (for a first offence with no aggravating circumstance) is the norm.

Switzerland is made up of 26 cantons, of which Geneva is considered to be the most "liberal", according to Ms. Glejser. However, since there is no real centralised information about cases, it is not easy to give a comprehensive picture of the pattern of prosecutions and sentences across Switzerland.

She added that Monday's ruling suggests that, in Switzerland, effectively treated HIV-positive individuals should no longer be prosecuted for having unprotected sex. Having already been contacted by advocates from around the world, she hoped that this ruling will have consequences for other jurisdictions that have HIV exposure laws.

Last May, a five member US Court of Appeals for the Armed Forces panel discussed the effect of treatment on transmission following the appeal of an HIV-positive soldier who had previously pleaded guilty to HIV exposure, following unprotected sex with two women without disclosing his HIV status. Although the majority did not agree, and did not allow the accused soldier's guilty plea to be set aside, two members of the panel found the medical expert's testimony that it was highly unlikely that the soldier could have infected either women because of his low viral load valid enough to question HIV exposure laws.

And last July, a Canadian court explored the Swiss statement following a submission from Clato Mabior's defence team that, at the time he had unprotected sex with six women without disclosing his HIV status to them, he did not believe he was infectious. Although expert testimony concluded that Mr Mabior may have been uninfectious for some of the time, this was not enough to convince the judge, who noted that neither the CDC nor WHO/UNAIDS agreed with the Swiss, and that the crimes of which Mr Mabior was accused took place prior to there being any public statement on the effect of treatment on transmission.

Following Monday's ruling, however, Geneva's deputy public prosecutor, Yves Bertossa, believes it is only a matter of time before other jurisdictions realise that prosecutions for HIV exposure should not take place when the accused is on successful antiretroviral therapy. He told Radio Lac: "There are some medical advances which can change the law. I think that in other [parts of Switzerland] or in other countries, the same conclusions should apply to their laws."

Thomas Lyssy from the Swiss AIDS Federation, told aidsmap that they were "very pleased with the judgment of the court. We certainly hope that this precedent will be followed in other Swiss cantons in future cases of a comparable nature."



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