Police, Prosecutors, Press Bungle HIV Crime

posted: 01/09/2010

Despite new police HIV crime investigation guidelines, HIV prosecution guidelines and new press HIV reporting guidelines, it appears that all were ignored and left on office shelves in the latest prosecution for reckless HIV transmission.
 

A man accused of passing on HIV to a woman of 19 was jailed for a year, and given a five year sexual offences prevention order yesterday.

Nicholas Richards, who is 31, and lived in Sittingbourne, Kent, admitted Grievous Bodily Harm (GBH) for the HIV offence of reckless HIV transmission at a previous hearing at Maidstone Crown Court.
 

Richards was also given a five-year sexual offences prevention order, which stops him from having unprotected sex or not telling his partners about his HIV.
 

He was jailed yesterday for a year on that charge and was sentenced to a further year for an unrelated GBH charge, for attacking a man in Medway, Kent.  

The court heard Richards exposed the 19-year-old woman to HIV in June 2008. The young woman, who cannot be identified for legal reasons, found out she had HIV during routine blood tests when she became pregnant. Her baby does not have HIV, say the police.
 

Police comments
After the hearing, Det. Ch. Insp. Simon Wilson said the crimes committed by Richards were "abhorrent and callous" and had far-reaching consequences. He said: "Not only did he knowingly infect a young girl with HIV - a disease she will have to live with for the rest of her life, but he also selfishly put her child at risk too. Thankfully, the sheer bravery the victim showed in coming forward immediately and giving evidence in court helped us secure a conviction against him and I would pay tribute to her courage." He urged anyone else who had "fallen prey" to Richards to contact the police.
 

George House Trust comment

 
More Police, Crown Prosecution Service and Press failings

Because HIV crimes are complex to investigate and prove beyond reasonable doubt, and because of the harm HIV stigma and discrimination cause, police and prosecutors have strict guidance and policies to follow in HIV cases. This case seems to prove that these were ignored. The investigation and prosecution system cannot be relied on to work properly in all HIV cases.

Police

It appears that the Police ignored their own HIV investigation guidelines. They have clearly ignored their own Communication Strategy guidance, because Det. Ch. Insp. Simon Wilson should never have made his inaccurate and sensationalising comments and blatantly fished for other people to come forward who may have ‘fallen prey’ (his words) to the man.
 

Crown Prosecution Service

The Crown Prosecution Service appear to have yet again ignored their own HIV prosecution policy and guidance. Prosecutor Roy Brown seems to have been the man responsible. Guilty pleas should not be accepted without rigorous efforts to obtain transmission evidence.There is no evidence from the media reports that phylogenetic analysis was carried out as the prosecution guidelines require. So we can't be sure the man found guilty did pass HIV to the young woman.

Press

It was only the middle of August, just a few weeks ago, that the managing editor of The Sun told us about his paper’s commitment to responsible reporting of HIV at the launch of NAT’s new press guidelines. Graham Dudman, Managing Editor at The Sun, we were told, ensures his staff use the guidelines. He says: “At The Sun we pride ourselves on getting the facts right and staying up to date. This can be a challenge in sensitive areas like HIV. NAT's guidelines for journalists are very useful, really simple to work with and lay out all the facts reporters need.”
 

He seems to have forgotten the press guidelines for HIV very, very quickly. The Sun’s headline for this HIV news story: ‘HIV fiend jailed for infecting girlfriend’
 

News reports

BBC

Independent

Daily Mail

The Sun

Image  © Copyright Danny Robinson and licensed for reuse under a Creative Commons Licence.
 

Community Service for HIV+ Popstar

posted: 26/08/2010

Updated 27 August

The HIV-positive German popstar accused of infecting her former partner was given a two-year suspended sentence and is required to do 300 hours of community service work, if possible working with an organisation that helps people with HIV.
 

Nadja Benaissa, 28, admitted having unprotected sex and not telling her partner she has HIV, as German law requires. The law is different in the UK.
 

The No Angels singer was found guilty of causing bodily harm to one man, and of two cases of attempted bodily harm.
 

Benaissa admitted she had sex with three partners without telling them she has HIV. One of them later tested HIV positive.

Virus evidence unchallenged

The court ruled that she had "in all probability" infected one of her lovers, who contracted HIV at the time of their relationship and that she had endangered the life of another, who remains free of the virus. Similar accusations towards the singer made by a third former lover, which were originally included in evidence, were not heard in order to speed up the trial.

The prosecution evidence given by the expert German virologist, Professor Josef Eberle of Ludwig Maximilian University in Munich, said there was little doubt that Benaissa had infected the man, because they both had a very similar strain of the virus, a rare form which was first discovered in West Africa.

However this evidence went unchallenged (because she pleaded guilty) and it is notable that the judge only said that 'in all probability' she infected him. In a criminal case in Britain 'in all probability' is not good enough - she has to be proved the source of his infection 'beyond reasonable doubt'.

Having a similar strain of HIV, even if this is rare in Germany, doesn't prove he could not have been infected by someone else with the same strain. Until a few years ago the Crown Prosecution Service in Britain made the same sweeping claims about people who shared the same rare strain of HIV. Then expert virologists for the defence here demonstrated that this proves nothing except that two people have the same strain of HIV. The man could have got that same strain from someone else.   

She could have faced up to 10 years in jail, but prosecutors sought a lenient sentence because she confessed and expressed remorse.
Benaissa was arrested very publicly in Frankfurt last year, shortly before she was due to perform a solo concert, and spent 10 days in custody.
 

Pressures and a hard life 

The five-day trial, which took place in a youth court in Darmstadt as Benaissa was just 16 when the first offences took place, heard detailed evidence of the pop star's troubled youth. Benaissa spent time living on the street, where she developed a drug addiction. She had a child when she was 16.

Stop and Think

For those of us who are quick to say: how could she? I would like to ask a few questions: could you imagine finding out you are pregnant, and that you also have HIV, at 17? Can you imagine the fear that you could possibly infect the baby, and the anxiety that the medications you need to take in order to prevent the transmission may harm you and the baby? Can you imagine fearing for your own future? How would you tell your partner, or your ex, or the person you are hoping to have a relationship with? And what could the consequences be?
 

Source BBC

Update Source The Guardian 
Stop and Think from HIV Policy Speak Up blog
Statement by German HIV organisation Deutsche AIDS-Hilfe (in English) on HIV and the Criminal Law
HIV criminalisation blog

Image

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.
 

Source

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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