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Crime and Punishment: An International HIV Disclosure Dilemma

By Dave R.

October 25, 2012

Internet links shown in these posts are designed to provide more detailed information if required.

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In 2010 in Germany, a case hit the headlines and was reported all across Europe. In 2009, Nadja Benaissa, a well-known pop singer was arrested after three men accused her of not revealing her HIV status before having sex. Only one subsequently tested positive. After that, she was released without anybody being sure why but early the following year she was arrested again and charged with one count of aggravated assault and two of attempted aggravated assault. Despite the fact that infecting someone with HIV carries a prison sentence of six months to ten years, she was given a two year suspended sentence. The lenient sentence was put down to the fact that she'd confessed to having the sex and not revealing her status and had apologized profusely for the harm caused;

"In those days I was careless ... I'm sorry from the bottom of my heart," she told the court. It was also taken into account that she was only seventeen at the time and she was tried in a juvenile court. This could be seen as an example of a court respecting the rule of law but looking beyond the cold hard facts, to examine the person they were dealing with and acting accordingly.

Yet there are examples of the other side of the coin. In 2004, it was claimed that Hans-Otto Schiemann, a 56 year old German, tried to infect nearly a hundred Thai women while living in Thailand. He had a self-confessed pathological hatred of Thai women (one of whom was his wife) so a motive was easy to spot. However, because there are no laws in Thailand to prosecute unprotected sex or its consequences, he was eventually deported back to Germany for outstaying his visa! Clearly the man had psychological problems because he ended up being deported for a second time after he was discovered in Thailand again. Here's a case (without knowing all the facts and evidence) for which the law probably was found wanting. The lack of a law meant that the man almost got off scot free -- it's a very delicate balance!

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A New Zealand case set the tone for dealing with these cases in that land. In 2005, a New Zealander had unprotected sex with his girlfriend and didn't disclose his status. She initially told the man's family that she was positive but it was a lie and she remained negative. However, charges were still brought against the man, of causing mental stress and trauma and he was sentenced to 300 hours of community service, six months supervision and $1000NZ costs to cover the girl's therapy costs. He was in the end convicted of "criminal nuisance" which covers a multitude of sins. Unfortunately for him, another girl heard of the case and tried to bring a similar case to court. However, this case was dismissed because not only did she remain negative but he'd used a condom.

Were these pragmatic court judgements; or too severe; or too lenient? It shows how subjective the whole subject can end up being. I'm sure the court thought they were being both lenient and pragmatic but had the guy even committed a crime? To my mind it's up for discussion.

In Australia, these laws tend to be more frequently applied and are termed, criminal acts that transmit, or risk transmitting, a serious disease (including HIV) plus recklessly endangering another person's life or causing grievous bodily harm. Depending on the state in which you live, penalties can range from a maximum of ten years, to life imprisonment. Here, transmitting HIV can be considered a breaking of both public health and criminal laws, thus compounding the penalty possibilities.

The UK's laws in this area are based on "recklessly inflicting grievous bodily harm." This charge carries a maximum prison sentence of five years but certain factors must be established:

  • The defendant did in fact infect their partner.
  • The defendant was aware of the risk of transmission. In theory they may not have had a positive test, but they will have "known" they were infected.
  • The complainant did not explicitly give informed consent to sex with an individual they knew had HIV.
  • The defendant did not take steps to protect their partner -- consistent condom use is a defense.

These seem on the face of it to be as reasonable as you can find on international statute books and in fact nobody has been prosecuted for intentional grievous bodily harm using HIV as a weapon. It's considered that the burden of proof is just too difficult and it is recognized that sex is actually a pretty inefficient way of transmitting HIV if someone intended to do it.

In 2010, the police in the UK themselves issued comprehensive guidance as to how to treat this subject both fairly and with sensitivity and reckless transmission prosecutions should only go ahead if there is new infection and evidence of intent. Furthermore, if someone living with HIV is taken into custody, their medication should not be interrupted and their confidentiality should be respected (a far cry from the name and shame tactics in North America!). In short, in the UK, you can be charged with assault or grievous bodily harm only if HIV transmission has occurred; not simply if there was no disclosure, nor if there was exposure to HIV but no transmission occurring.

Recently a UK gay man went to court in just such a case but was found not guilty after the defense successfully claimed that phylogenetic analysis (the establishment of both strain and source of HIV) could not prove that the man had deliberately infected the complainant. This use of science forms the basis of the appeals in the earlier mentioned Dutch case too. This seems to encouragingly show that the British authorities are implementing their own pragmatic conclusions. It also seems that more and more legal experts are realizing that the burden of proof in HIV transmission cases is extremely difficult; especially in cases of multiple sexual contact; which has to be both fairer for people with HIV and easier for the law to deal with.

However, at least fifteen people have slipped through the system in Great Britain and been sent to jail for up to ten years, (as in the case of an asylum seeker from Malawi). One can only hope that good intentions become reality and that enlightened thinkers win the day.

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See Also
Crime and Punishment: The U.S and Canadian Contexts of an International HIV Disclosure Dilemma
TheBody.com's Just Diagnosed Resource Center
Telling Others You're HIV Positive
More News and Articles on HIV Disclosure

Reader Comments:

Comment by: josie (adelaide) Fri., Nov. 16, 2012 at 6:45 am EST
this article obviously comes from a place of personal indignation,rather than objectivity. Firstly, saying that unprotected sex isn't a particularly effective way to transmit HIV is an overly defensive thing to say. It's certainly been effective enough in many corners of the world. A statement such as that is a slap in the face to many a young African wife. Secondly, it IS, as you say, every individual's choice to have unprotected sex, with both parties carrying a responsibility to protect themselves AND each other. A HIV + person is knowingly and willingly failing on both of these counts. This is called negligence. Thirdly, your obvious distaste for Islam didn't need to be brought into this discussion. It only serves to highlight that you are on the war path, and seek to defend the indefensible, simply because the perpertrators are of the positive persuasion.
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Replies to this comment:
Comment by: Dave R (Amsterdam) Sat., Nov. 17, 2012 at 6:04 am EST
Josie,
Thank you for the points you make. I seem to have been guilty of not explaining myself properly and leaving things open to misinterpretation. I'll try to address your issues.
Regarding the 'distaste' for Islam, if you have time,I would like to refer you to the answer I gave to the comment from Erin below. I have no problem with Islam or any other religion for than matter; very often it's religious leaders' implementation of their own reading of religious ideas that leads to oppression of others and that I'm very much against.
As far as defending unprotected sex in any way goes, I think you'll find that I never say that in the article(although may have unwittingly given that impression). I am indignant, you're right there but only at the severity of the criminalisation of non-disclosure. I believe it's not only unhelpful in the battle to reduce HIV numbers and encourages even more stigma against people living with HIV but it will prevent many people getting tested and consequently getting treated and that's surely not the point. If there has been a case of non-disclosure with protected sex...and non-infection as a result, imprisonment is surely an over-the-top reaction. Of course disclosure has to be encouraged at all times, as has safe sex (we all want to see the end of HIV) but criminalisation is, to my mind, not a constructive way to go. We need to encourage everybody to get tested regularly and reduce the stigmas and fears of disclosure so that it becomes a sensible and welcome thing to do in society. The threat of imprisonment will drive certain groups of people who have sex even further into the shadows and the disease will continue to spread undiminished.
I would be happy to continue this conversation with you if you wish - just drop me an email using the button under the article
Best wishes,
Dave


Comment by: Erin (Canada) Tue., Oct. 30, 2012 at 3:02 pm EDT
I was enjoying this article, until I read the following unfortunate line: "A large Islamic and therefore by nature, unbending population may affect things in the future but for now, the Netherlands is still one of the best places to be HIV positive in the world."

While there are certainly Islamic currents in the Netherlands, they are multiple, not monolithic. The suggestion that all Muslims are the same is misleading. The idea that Muslims are by "nature" an "unbending population" makes for dismal reading.

In responding to HIV stigma, let's not propagate other forms of unjust discrimination.
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Replies to this comment:
Comment by: Dave R (Amsterdam) Thu., Nov. 1, 2012 at 5:13 am EDT
Erin,
Thanks for your response and in general I would agree with you but despite the diverse Islamic religious groups and their multiple origins in the Netherlands, the overwhelming Islamic public opinion here, is anti gay and anti HIV if it comes from LGBT origins. In that respect, they are 'unbending' and that's what I was referring to but maybe I should have made that clearer.
Muslims may well differ on theological and cultural themes within Islam itself (Sunni, Shiite and others) but regarding homosexuality and homosexuals living with HIV, there is almost universal condemnation and this includes opinions from those under 30. There is little evidence that the younger generation is more tolerant towards LGBT people here - prejudice is far too deep rooted. Not long ago, an Imam in Amsterdam proposed to his congregation throwing homosexuals head first, from the highest floor of highrise flatblocks as a means of solving 'the problem'. He received widespread criticism from outside the faith but absolutely no sanction from the government. These extreme views exist in the Netherlands, as well as more moderate opinions but almost all muslims here are united in their condemnation of homosexuality and their lack of sympathy for people living with HIV.
Fortunately, the islamic vote is split in this country and successive attempts to form an islamic political block have failed because of internal dissent but more than a million voters in a land of 17 million people, is a significant opposition to tolerance and acceptability for LGBT people, (should they ever get their act together). I am by no means anti-islam - the religion has given us so much throughout history but I can't find its views on homosexuality and HIV acceptable.


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Dave R.

Dave R.

English but living since 1986 in Amsterdam, the Netherlands. HIV+ since 2004 and a neuropathy patient since 2007. I've seen quite a bit, done quite a bit and bought quite a few t-shirts if you know what I mean; but all that baggage makes me what I am today: a better person I believe, despite it all.

Arriving on TheBody.com, originally, was the end result of getting neuropathy as a side effect of the medication, or the virus, or both. I found it such a vague disease and discovered very little information that wasn't commercially tinged, or scientifically impenetrable, so I decided to create a daily Blog and a website where practical information, hints, tips and experiences for patients could be gathered together in one place.

However, I was also given the chance to write about other aspects of living with HIV and have now contributed more articles about those than about neuropathy. That said, neuropathy remains my 'core subject' although one which unfortunately dominates both my life and that of many other HIV-positive people.

I'm not a doctor or qualified medical expert, just someone with neuropathy and HIV who has spent the last few years researching the illness and trying to create information sources for people who want to know more.

I also have my own personal website and write for PositiveLite.com.


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