Positive Pop Star on Trial

posted: 17/08/2010

The lead singer of Germany's best-selling girl band was in a young people’s court yesterday on charges of failing to tell three male partners she had HIV and of passing on HIV to one of them. She was just 17 when she discovered she was HIV positive and when the alleged offences begun.
 

Nadja Benaissa, 28, of the group No Angels, is accused of having had sex with three partners, a few times each, between 2000 and 2004, without informing them of her HIV status. One of the men got HIV.
 

Arrested before concert in blaze of publicity

Benaissa, who found out she had HIV a decade ago when she tested as part of routine health screening in pregnancy, was arrested in a blaze of publicity in April 2009 just before No Angels were due to appear on stage at a Frankfurt nightclub. She was handcuffed by plainclothes police, driven away in front of fans, then held in custody for 10 days.
 

Campaigners for the rights of people with HIV were highly critical of the public manner in which the arrest was made, calling it a "modern witch-hunt", and have accused prosecutors of a grave breach of privacy after they made public the fact that Benaissa had HIV.
Benaissa's is the first HIV trial in Germany in which a celebrity is in the dock.
 

Doubts about transmission
Giving evidence to the court, the unidentified 34 year old man who claims she infected him said: "We had sex between five and seven times, about three of those were unprotected."
 

Nadja Benaissa, who is accused of grievous bodily harm and attempted aggravated assault, told the court in Darmstadt that she had failed to tell her partners about her condition. The singer, said she had not meant to cause any of the men injury, having been advised that it was highly unlikely that she would transfer the virus to anyone with whom she had sex. "I never wanted this to happen to any one of my partners," she said.
 

In a statement by the singer, read to court by her lawyer, Oliver Wallasch, she added: "I'd been told the likelihood of infecting someone or that I would develop the illness was more or less zero. For that reason I kept the news even from my close group of friends [as] I didn't want my daughter to be stigmatised. I told the band members because I trusted them but I never made it public because I feared that it would mean the end of the band."
 

Wait for the expert scientific evidence

The five-day trial is due to hear from Professor Josef Eberle of Ludwig Maximilian University in Munich, who is expected to testify that the man may have been infected by someone else.
 

In England and Wales, prosecution guidelines say phylogenetic analysis must be carried out before cases come to court. It is exceptionally difficult now for prosecutors here to prove a HIV transmission case. If this case was in the UK, the prosecutors would have to prove none of the man’s other sexual partners could have given him HIV. We should wait to hear the evidence of the professor.
 

Witnesses in the trial, which has attracted scores of No Angels fans, are expected to include Benaissa's fellow band members, Sandy Mölling, Jessica Wahls, and Lucy Diakovska. A verdict is due on 26 August.
 

Under German law the crime of failing to disclose you have HIV to someone before having sex with them carries a prison sentence of between six months and 10 years.
 

Talking about HIV
Following the publicity about her HIV the singer has often talked publicly about it, including in a prominent speech to the Berlin AIDS Gala last November, in which she said: "I thought my life was destroyed, as well as that of my nine-year old, infection-free daughter."
But she has stressed that thanks to modern medicine "I am a completely healthy person, even if I'm HIV positive. I have a perfectly normal life expectancy."
 

No Angels, an all-girl band with four members, was discovered 10 years ago during a TV talent show when they beat 4,500 other hopefuls for the top prize. They went on to become Germany's most successful female band, often compared to Girls Aloud. Between 2000 and 2003 they sold 5 million records, including three No 1 albums and four No 1 singles, among them their most famous hit, Daylight in Your Eyes. The band broke up but reunited to take part in the Eurovision song contest in 2008, in which they came 23rd. They released a new album last summer.
 

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Rolling Back HIV Prosecutions

posted: 03/08/2010

While over 600 people have now been convicted worldwide of transmitting or exposing others to HIV, and some countries are making new laws for prosecuting HIV, there is some good news.

Ghana, Mauritius and other countries have rejected a ‘model law’ that proposed prosecuting HIV transmission; in the Netherlands a new policy makes prosecutions for unintentional transmission unlikely; and Sierra Leone has ended its policy of prosecuting mother to child transmission. In England and Wales, work with police, prosecutors and expert virologists have helped make successful prosecutions a rarity.
 

UNAIDS Priority
Susan Timberlake of UNAIDS stated at a International AIDS Conference session that it was now a “corporate priority” of UNAIDS to “remove punitive laws, policies, practices, stigma and discrimination that block effective responses to HIV”.
She said that it was essential that advocacy does not just consider laws, but also must dealwith law enforcement and access to justice.
 

Working with legislative bodies to remove laws is an extremely complex and time-consuming process that requires political know-how and can backfire.
 

Harm Reduction - Working with Police and Prosecutors

Timberlake suggested law enforcement approaches (engaging with the police, prosecutors and judges who make decisions on taking cases forward or not) can be more productive than risking law repeal which could backfire and make the situation worse. She said that any countries that do not yet have prosecutorial guidelines should make these high priority.

In England and Wales, because helpful law reform is unlikely, a lot of effort has been put into reducing the harm of prosecutions – and as a result of HIV prosecution and investigation guidelines few cases get to court, and convictions are now rare.
 

An English court accepted expert scientific evidence that showed the limits of phylogenetic analysis (the scientific evidence comparing the viral strains of the complainant and the accused). At first prosecutors presented phylogenetic analysis as providing definitive proof that the accused must be guilty. However expert evidence showed that two viral strains can seem closely related without there being any certainty about who had infected who. It is now a key part of police investigation guidelines and prosecution policy to use phylogenetic analysis. This evidence seriously weakens most prosecution cases and convictions are now rare.
 

Knowledge, Representation and Stigma

More still needs to be done to improve people with HIV’s knowledge of laws and their rights (‘legal literacy’) and access to legal support and services. This needs to be linked with broader efforts to reduce HIV stigma and discrimination.
 

New Book on HIV and Criminal Law

This International Conference meeting also saw the publication of HIV and the Criminal Law, a new guide to the use of the criminal law in prosecutions related to HIV transmission, written by Edwin Bernard and published free online by NAM.

Videos

The video of the meeting is now online at aidsmap
The video of Edwin's presentation and press conference

Sources
Criminalising Transmission

Tactics to Stem Tide of Prosecutions

HIV and the Criminal Law

posted: 22/07/2010

A new book, HIV and the Criminal Law, has just appeared online from NAM/aidsmap. It will also be published on paper in the autumn.

HIV & the Criminal Law is about criminalisation of HIV transmission and exposure and the effects this has on individuals and society. It is written for people living with HIV, advisers, policy and lawmakers, people in the criminal justice system, and journalists.

George House Trust's policy expert Chris Morley helped with the production of the book by commenting and making suggestions on some of the chapters.

Here's the book's contents which available to read in full here

• Preface By The Hon. Michael Kirby AC CMG and Edwin Cameron, Justice of the Constitutional Court of South Africa
• Introduction - How this resource addresses the criminalisation of HIV exposure and transmission
• Fundamentals - An overview of the global HIV pandemic, and the role of human rights and the law in the international response to HIV
• Laws - A history of the criminalisation of HIV exposure and transmission, and a brief explanation of the kinds of laws used to do this
• Harm - Considers the actual and perceived impact of HIV on wellbeing, how these inform legislation and the legal construction of HIV-related harm
• Responsibility - Looks at two areas of responsiblity for HIV prevention: responsibility for HIV-related sexual risk-taking and responsibility to disclose a known HIV-positive status to a sexual partner
• Risk - An examination of prosecuted behaviours, using scientific evidence to determine actual risk, and how this evidence has been applied in jurisdictions worldwide
• Proof - Foreseeability, intent, causality and consent are key elements in establishing criminal culpability. The challenges and practice in proving these in HIV exposure and transmission cases
• Impact - An assessment of the impact of criminalisation and HIV – on individuals, communities, countries and the course of the global HIV epidemic
• Details: international resource and individual country data - a summary of laws, prosecutions and responses to criminalisation of HIV exposure or transmission internationally, and key sources of more information.

Ordering paper copies of the book

If you want to buy a paper copy when this appears in the autumn please email NAM

Psychologists and Confidentiality

posted: 08/03/2010

A 20 page booklet of guidance from the British Psychological Society advises psychologists working in the NHS how to deal with HIV confidentiality where people may be exposing their partners to HIV. The guidance – ‘Criminalisation of HIV Transmission – guidelines regarding confidentiality and exposure’ has best practice guidelines, sections on dealing with police enquires and on disclosing information to partners, and what the various codes of ethics and types of professional guidance say.

These guidelines on HIV confidentiality and disclosure were developed to help clinical psychologists where HIV-positive clients have not disclosed their status to their sexual partners and there is a significant risk for HIV transmission. They have also been developed to assist clinical psychologists when clients believe they have contracted HIV under these circumstances.

This 2009 booklet costs £4.70 to people who are not members of the British Psychological Association.
 

HIV+ Gay Man Returns - to Jail

posted: 22/02/2010

A gay man who fled to France after being convicted for recklessly infecting his former boyfriend with HIV was arrested when he returned to the UK for cancer treatment. Mark James, 50, was on the run from police for three-and-a-half years after becoming the first gay man in the UK found guilty of "recklessly" passing on the virus.
 

Hounslow, London police arrested him in a hospital bed in Brighton on February 10th, where he had gone to receive treatment for an aggressive form of lymphoma.
 

4 years 2 months

Mark James, who had lived with the man who became infected in Brentford, London, was sentenced on the 12th February at Isleworth Crown Court to four years and two months. He had pleaded guilty to causing grievous bodily harm before he fled the country. Judge Jonathan Lowen said: “During the three-and-a-half years while you roamed out and about, you represented a substantial risk of serious harm to members of the public were you again minded to commit the shocking crime to which I sentenced you in your absence on August 4th, 2006. The victim of your offence has suffered a great deal of extra anxiety and stress, and I have been told it has affected his health, all while you enjoyed your undeserved freedom.”
 

The court heard that James spent nearly all the time he was at large in Narbonne, south-west France. James, who lived in Park Road, Burgess Hill, in Sussex, before his conviction, was diagnosed with lymphoma in December last year. He received two courses of chemotherapy in France, and contacted the British Embassy and Foreign Commonwealth Office before flying to Gatwick on January 18th.
 

Daniel Robinson, defending, said: “He made no secret of his status to the immigration authorities on my instructions, and was allowed through immigration control because, I’m told, his treatment was viewed as a priority. He suffers from the cancer in an obvious way, he has a large tumour to the right hand side of his neck which has caused some facial paralysis.”
 

Detective Inspector Mike Sunman, who led the investigation, said: “It is obviously quite sad to see the condition he is in, but it was appropriate that the sentence be served.”
 

George House Trust comment: this was the first gay man to be convicted of reckless transmission in the UK. He pleaded guilty and then tried to change his plea to not guilty when it became clear that scientific evidence cannot prove who has passed on HIV. The judge refused this request to change his plea.

It is always critical to get the best legal advice from lawyers with experience in these cases - ask us or Terrence Higgins Trust Direct. There have been very few cases recently because it is a very hard offence to prove when the Crown Prosecution Service (CPS) follows its HIV policy and guidelines. This prosecution happened before the CPS Guidelines were published.

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