People’s Guide to Police HIV Investigations

posted: 11/05/2011

NAT (National AIDS Trust) have just produced a guide for people living with HIV about how the police should investigate any complaints about HIV being passed on. The Police now have their own detailed guidance for doing these investigations.

This plain English leaflet is for people with HIV and it gives the key points and answers people’s common questions. It does not deal with Scotland where the law and legal system is different, so the guide is just for England, Wales and Northern Ireland.

Prosecutions are rare

Police investigations into reckless HIV transmission are uncommon. In 2009 around 6500 people found out they had got HIV but few people complain to the police about someone infecting them recklessly, and there was only one prosecution in 2010 and none at all in 2009.

Answers to common questions

The leaflet answers these common questions:

• What should I do if someone goes to the police (or threatens to) accusing me of giving them HIV?
• How much will the police know about HIV?
• Should the police investigate if the person complaining does not have HIV?
• When will police end the investigation?
• Will the police keep my HIV status confidential?
• Can the police see my medical records?
• Should the police comment to the media?
• What if the person accused is under 18?

Expert Guidance for Police and Prosecutors

The police now have their own national guidance to follow when investigating these unusual, complex and sensitive cases. The Crown Prosecution Service also has a guide about prosecuting these cases.

HIV organisations like NAT, George House Trust and Terrence Higgins Trust have worked hard with police and prosecutors to produce these guides to reduce as far as possible problems for people with HIV who may be accused.

The police guidance makes plain that all allegations should:

• be fairly investigated
• not be begun or continued if a successful prosecution is not considered realistic
• respect the dignity and confidentiality of people with and affected by HIV.

The Association of Chief Police Officers (ACPO) has approved ‘Investigation Guidance relating to the Criminal Transmission of HIV’ for the police.
This sets the standard for police investigations. Police will find the guidance very helpful; it is available on the national police information and training website ‘POLKA.’ The public can find a public copy on the NAT website.
 

Accused? Remember:

If you are accused of reckless or intentional HIV transmission, get immediate advice from a HIV voluntary organisation with experience in HIV prosecutions, or ring THT Direct (0845 12 21 200)

• Get legal advice when the police start to investigate
• Make sure the police know about and use the ACPO Investigation Guidance
• Get advice and support from a HIV voluntary organisation with experience in dealing with HIV prosecutions.

 NAT Guide for people living with HIV on police investigations is at the bottom of this page.

Behind Bars – HIV Prosecution Harm

posted: 09/12/2010

Behind Bars is a collection of interviews exposing how criminal laws on HIV transmission are affecting people’s working and private lives, all around the world.

Personal Prosecution Tales
The personal stories illustrate the dilemmas faced by doctors, lawyers, researchers and advocates. They include the stories of

• a doctor who was forced to aid a police investigation against her ethical principles,
• a woman living with HIV who prosecuted her former partner, and
• a lawyer who advocated in an HIV transmission case.

There is little research showing precisely what effect HIV prosecutions have. But prosecutions further marginalise people already vulnerable to HIV infection, including women, men who have sex with men, sex workers and people who use drugs. Legislation and legal practice is different in every country around the world, and we need to learn more about the effect of using criminal law on HIV in each country. By fuelling stigma, prosecutions undermine the HIV efforts to prevent, treat and care.

World of Prosecutions
From the UK to the USA, Mali to Mozambique, Azerbaijan to Australia, criminal laws are increasingly being used to prosecute HIV transmission or exposure. But, as the interviews reveal, criminal law is a blunt instrument for HIV prevention.

More denial, secrecy and fear
Behind Bars show how a simplistic ‘law-and-order’ response to HIV intensifies a climate of denial, secrecy and fear and provides a fertile breeding ground for the spread of HIV.

Paying the prosecutions price
Prosecuting wilful transmission of HIV is proving a costly intervention - in terms of time and money spent on investigating individuals’ private lives and determining the burden of proof – and seems to have had limited impact on HIV prevention.
 

Contributor Jan Albert, Professor of Infectious Diseases at the Karolinska Institute Sweden, says:
“Since I’ve been an expert witness in court trials, my personal opinion regarding people living with the virus has changed. In my experience the accused are seldom ‘criminals’. There are many reasons for neglecting to inform sexual partners about HIV status, including denial. None, or very few, have had the intent to transmit HIV, which is how these acts often are described by the media. There will be more and more HIV infected people living in Sweden, and the rest of the world. Do we want to turn a proportion of our population into potential criminals every time they have sex?”

Kevin Osborne, Senior HIV Advisor for IPPF, said:
“These stories show that criminalisng the transmission of HIV is actually undermining our efforts to prevent the spread of HIV. Fear of prosecution deters people from coming forward for testing and counselling; policing the bedroom effectively drives the problem underground.”

Video campaign
The Behind Bars videos and interviews can be found at International Planned Parenthood Federation. The short campaign video highlights the impact of prosecutions. The film is available on YouTube and on the IPPF website.

The video is two-minutes long, stylised and artistic, showing the humanness of sex, of relationships and of HIV. The people in the film share their own, diverse stories (they are not professional actors), and many are living with HIV. It builds on the Declaration of Sexual Rights and purposefully focuses on sex – irrespective of how, where, with whom and why people have sex.

YouTube - Criminalise Hate not HIV

posted: 03/12/2010

Criminalise HATE not HIV is a new vid on YouTube, from the people at the UK HIV Stigma Index.

This film was shot by an incredible bunch of creative people including many from the UK HIV Stigma Index and something magical happened. We hope you enjoy it.
It has already had over 3000 hits.

Please share the vid
The Criminalise Hate not HIV video is part of the work by people involved with the UK HIV Stigma Index over the last 18 months. Please help promote this by putting it on your own facebook page, tweeting the link, emailing it to friends, or putting it on your website. All you have to do is visit the YouTube video and then click the Share button below the video and this lets you to add it to facebook, Twitter or send emails.

Working on next video – Verdict on a Virus
They are already working on a a short documentary 'Verdict on a Virus', to highlight the prosecution of people with HIV - editing this next video is already underway and it will be out soon.
 

UK HIV Stigma Index

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

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