Recently, an appeal verdict from Singapore's High Court confirmed a two-year prison sentence for a 28-year-old man convicted of having sex with a casual partner without disclosing the risk of HIV infection. Last year, I posted news of the original conviction on Facebook and immediately received a message from a friend, who I'll call Jonathan,* saying simply, "I am the man in the story."
We've been friends, occasionally closer than that, for more than a decade. When Jonathan became positive in 2011, he told me about it immediately. He was distraught, and first we talked about how effective treatment (for those who can access it) has made HIV a lifelong condition. Soon after that, I talked him through the emerging science of undetectable equals untransmittable (U=U) -- establishing that people who have an undetectable viral load cannot transmit the virus -- before it was even called that.
One month ago, a young man named Michael Johnson was released from prison after serving five years of a 30-year sentence for "reckless" transmission, despite a lack of evidence confirming he actually passed on the virus.
According to research carried out by the HIV Justice Network, 75 countries have laws on their books that criminalize sexual conduct involving HIV. Some criminalize sex without disclosure of HIV status even when transmission does not -- or could not -- occur. Courts and legislatures are slowly beginning to grapple with the implications of the new science of HIV transmission risk.
Timothy Lohmar, the prosecutor in the Johnson case, said he felt uneasy about the case at the time, and he now advocates changing the law, arguing that changes in the science and lived experience of HIV mean this conduct no longer warrants criminal prosecution.
The Singaporean law is unusual. It requires disclosure of the risk of infection, not just HIV status, regardless of whether transmission occurs or whether the sex was protected, according to section 23(1) of the Infectious Diseases Act of 1976, revised in 2003.
In his evidence, Jonathan told the court he disclosed his status on Grindr. However, chat logs from this conversation were not available. He had a series of encounters with the complainant. At some point, Jonathan reached undetectable viral load and the pair stopped using condoms, although the exact timeline of these events was never established in court.
At trial, Jonathan gave evidence that he told the complainant he was waiting for test results and showed his medication, explaining that it was like being on PrEP. The trial judgment makes clear that the court did not accept that undetectable viral load means no risk of transmission, viewing it instead as an attempt to evade responsibility or downplay the risk.
The trial judge wrote, "Even if that had been communicated to the victim, it would not have absolved the accused's obligation … to inform the victim of the risk of contracting HIV infection from him." Even if the court accepted Jonathan's evidence, the judge wrote, "he would not have discharged the said obligation if the victim did not appreciate the risk or was lulled into a false belief that there was little or no risk of contracting HIV infection from the accused."
The court heard expert evidence from an HIV treatment specialist, which included results from the PARTNER study that showed undetectable viral load means HIV cannot be passed on. However, clinical expertise does not extend to the social questions at issue -- in particular, the way in which sexual cultures among men who have sex with men are changing in response to U=U, developing and circulating new practices of disclosure and negotiation.
The complainant told an investigating officer from the Singapore Health Promotion Board that he would not have had sex with (the accused) if he had known he was HIV positive. Under cross-examination, however, he said that he could not recollect whether the accused disclosed to him or not.
Right off the bat, this should have raised reasonable doubt about the prosecution's case. However, the trial judge found it perfectly natural that the complainant would not have sex with a person who disclosed he was living with HIV -- a supposition on his own part, and one clearly informed by HIV stigma, that was nonetheless considered plausible enough to overcome reasonable doubt.
Unfortunately, this was a finding of fact, limiting the arguments possible on the appeal.
In drawing this conclusion, the trial judge overlooked an obvious conflict of interest created for the complainant by the very same section of the legislation.
According to section 23(2), any person who knows they have been exposed to a significant risk of HIV transmission is guilty of a crime if they do not disclose that fact to every subsequent partner, or take reasonable precautions, until they get an HIV-negative test result. Had the complainant given another answer to the investigating officer, he could have faced criminal liability of his own.
The Singaporean law and cases involving HIV in general pose challenging questions of responsibility. I trained in law and work in HIV prevention in Australia, where our first national HIV/AIDS strategy in 1989 enshrined the principle of mutual responsibility of HIV-positive and HIV-negative people for prevention. By contrast, laws that criminalize HIV frame the HIV-negative person as ignorant and needing special protection, rather than as an active and knowledgeable participant in a mutually negotiated encounter.
Whether or not the respondent understood or remembered the disclosure made in this case, what gay man can argue, in a high-income country, and over 30 years into the HIV epidemic, that they were unaware that condomless sex poses a transmission risk?
Further, what responsibility does the Health Promotion Board itself take? Singapore has none of the ancillary laws that sustain effective HIV prevention. The country has no laws against discrimination on the grounds of HIV status or homosexuality. And it maintains the colonial-era Penal Code section 377A on its books, criminalizing sexual encounters between men.
In fact, the Health Promotion Board recently revealed its entire database of people diagnosed with HIV in Singapore, including the names and identifying details of 14,200 people. The information was "leaked" when one of its physicians brought it home on his laptop, according to the BBC.
As the activist Avin Tan told the outlet at the time, "There are a lot of laws that dictate what we need to do. We need to come out to our sex partners, our insurers, our employers and our health-care givers but there are no laws to protect us once we come out."
As Jonathan begins his sentence and contemplates whether to appeal, I am left wondering about what motivates my Singaporean colleagues in working towards HIV prevention. Are we solely working to prevent new infections, within the epidemiological model that dominates in public health discourse, or is our goal to minimise the impact of the epidemic on the communities affected by it, including people with and without the virus? If it's the latter, then reducing vulnerability to criminal prosecution is part of the job.
*Not his real name.