Scotland - Convictions for HIV Exposure

posted: 20/01/2010

UPDATED Friday 26 February : He was sentenced to 10 years jail.

UPDATED Thursday 18 March 2010: He appealed the 10 year jail sentence, according to a report on the BBC. 

UPDATED Tuesday 13 April 2010: He has lodged an appeal against the length of his sentence after his first appeal was rejected, according to a report in the Aberdeen Evening Express.

The first ever conviction anywhere in the UK, just for exposing someone to HIV without passing on HIV, has happened at the High Court, Edinburgh, in Scotland. The law in England and Wales is different and does not allow prosecutions for exposing someone to HIV.

A 41 year-old man pleaded guilty to four charges of ‘culpable and reckless conduct’ after being accused of not disclosing his HIV status to four women between 2003 and 2008, only one of whom became HIV-positive. There have only been two earlier cases in Scotland, both for actual transmission of HIV.

The case has been widedly reported in both Scottish and English media. While reports on BBC Online, the Scotsman, and STV.tv were somewhat neutral, tabloid coverage has been typically stigmatising, including today's Scottish Sun : "HIV fiend is lowest of the low" ; Scottish Daily Record calls him a "callous predator"; and the UK-wide Daily Express: "HIV rat facing prison for infecting his lover'.

Most of the articles focus on the fact that the 28 year-old woman who became HIV-positive was diagnosed during routine prenatal screening. She subsequently chose to end her twin pregnancy. (With diagnosis and appropriate treatment and care, there is now only a very small chance of babies having HIV). Some reports also refer to a fifth woman who was diagnosed alongside Devereaux in 1994.

'Denial' defence mocked

All of the articles mock Mr Devereaux's defence that he was in denial, because the prosecution produced evidence that he was taking antiretrovirals. It is in fact quite common for people to have a serious illness such as HIV and yet have difficulty accepting the reality of diagnosis and its consequences.

HIV sector responses

BBC Online has a second report focusing on reaction in the HIV sector, concerned that this conviction will lead to more arrests for non-disclosure without transmission in Scotland.
 

Deborah Jack, chief executive of the National Aids Trust (NAT), said:

"It is totally unjust to single out people with an HIV diagnosis for punishment for unprotected sex - we all need to be wiser and safer, looking after ourselves and those we have sex with. Most HIV transmissions are from people who have never had an HIV test. We recommend that the Scottish Executive change the law so that people with HIV cannot be charged with culpable and reckless conduct if no transmission took place."
 

Roy Kilpatrick, chief executive of HIV Scotland, said:

"We are particularly worried about the fact that prosecutions were brought in this case in respect of three sexual partners of Mr Devereaux who had not contracted HIV. We recognise that the primary motivation for bringing this prosecution must have been the actual transmission of HIV and that the prosecution would have felt it necessary to put the full context before the court. However, it would be alarming if the charges brought in this case open the door for future prosecutions in cases where no harm has been caused."
He said that bringing prosecutions where no harm had been caused would stigmatise people living with HIV. He called for a clear statement of Scottish HIV prosecution policy.
 

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On sentencing and imprisonment

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Swiss Court Frees HIV+ Man

posted: 10/03/2009

In the first ruling of its kind in the world, the Geneva Court of Justice has freed a man given 18-months prison for exposing someone to HIV.The court ruled that the risk of HIV transmission while the man was on treatment was far too low to justify the conviction.

In Switzerland, public health law effectively made it a crime simply for people with HIV to have any  unprotected sex. However this court has now changed this. It accepted expert testimony from Professor Bernard Hirschel – one of the authors of the Swiss Federal Commission for HIV/AIDS consensus statement on the effect of treatment on transmission – that the risk of sexual HIV transmission during unprotected sex on successful treatment is 1 in 100,000. It ruled that this level of risk was far too low to keep unprotected sex a public health crime.

The case began in Lausanne in 2007, when a court sentenced the HIV-positive man, originally from the Democratic Republic of the Congo, to a suspended 28-month sentence for having unprotected sex, without telling his woman partner his HIV status.

Swiss HIV Law

Under the public health parts of the Swiss criminal law, Article 231 allows prosecutions against HIV-positive individuals for having unprotected sex, with or without disclosure. The UK doesn’t have a public health criminal law about disease exposure. Prosecuting and criminalising public health was dropped in the UK because it goes against the principle of encouraging people to come for testing and treatment. Criminalising public health drives people with health needs underground and protecting public health becomes far more difficult.

People with HIV in Switzerland can also be prosecuted under Article 122, for an attempt to engender grievous bodily harm. This makes it an attempted grievous bodily harm to have unprotected sex, even if there is no HIV transmission. People with HIV in Switzerland are jailed simply for having unprotected sex. This can't happen under English law. Here HIV transmission has to take place before the charge of "grievous bodily harm" can be made. There is no English crime of attempted grievous bodily harm.

Deborah Glejser of Swiss community HIV organisation, Groupe SIDA Genève, explains that although this public health law could be used even more harshly, to prosecute unprotected sex even when HIV status has been disclosed, in practice, the Swiss only prosecute HIV exposure without disclosure. Suspended sentences are normal so this man’s imprisonment was unusual.

Trial judge refused to consider Swiss statement

A second complaint last year led to the man standing trial again in Geneva in November 2008. According to a report in The Geneva Tribune, an expert medical witness had testified that although treatment greatly reduces the risk of transmission, there remained a residual risk. Although the man's lawyer had put forward the statement by the Swiss Federal Commission for HIV/AIDS as evidence, and Geneva's deputy public prosecutor wanted to suspend the hearing to consult with the Swiss HIV Commission, the lower Geneva court refused to allow this. This made it his second conviction so he was sent to jail for 18 months, in December 2008.

This clearly annoyed the deputy Public Prosecutor who felt justice was not being done or being seen to be done. The court refused to consider the evidence even the prosecutor thought was relevant. We are left with the suspicion that a white Swiss native would have not been jailed for 18 months like this black African migrant. The British pattern of a disproportionate numbers of migrants being jailed for HIV crimes is found across much of the globe

It's Super-Public-Prosecutor to the rescue

Late in February the deputy public prosecutor came to the rescue and told the Geneva Court of Justice that he was convinced by the Swiss Federal Commission for HIV/AIDS that the risk of transmission for an HIV-positive individual on successful treatment was less than 1 in 100,000. Under the circumstances he wanted to appeal so as to withdraw the charge and for the court to cancel the conviction.

On Monday, the Geneva Court of Justice acquitted the man, who was freed  after almost three months in prison. Geneva’s deputy public prosecutor, Yves Bertossa, called for the appeal, told the newspaper Le Temps that although there is still some debate regarding the slight risks of transmission in people on successful treatment this should not be used unfairly: "One shouldn't convict people for hypothetical risks,” he said.

Swiss statement did what it set out to do

Professor Hirschel said that he was very pleased with the outcome. It was, he said, the main reason that he and his colleagues issued their January 2008 statement of advise for courts and prosecutors.

The Swiss panel has had enormous global attention and a great deal of criticism for openly talking about and applying the lessons of modern HIV treatment to the lives of people living with HIV. Swiss HIV clinicians wanted to put a stop to much of the jailing of people with HIV - simply for having unprotected sex without any HIV transmission.

Deborah Glejser of Groupe SIDA Genève added that Monday’s ruling means that, in Switzerland, HIV-positive people on treatment which is working properly should no longer be prosecuted for having unprotected sex. She hopes that this ruling will help people in other countries that prosecute HIV exposure – and she’s been contacted by many already.

Hopes for fall in global prosecutions

Last May, a five member US Court of Appeals for the Armed Forces panel rejected, but only by a narrow majority, an appeal by an HIV-positive soldier who had previously pleaded guilty to HIV exposure, following unprotected sex with two women without disclosing his HIV status. And last July, a Canadian court considered and rejected the Swiss statement in the case of a man charged with having unprotected sex with six women.

Following Monday's ruling, however, Geneva’s deputy public prosecutor, Yves Bertossa, believes it is only a matter of time before other jurisdictions realise that prosecutions for HIV exposure should not take place when the accused is on successful antiretroviral therapy. He told Radio Lac: “There are some medical advances which can change the law. I think that in other [parts of Switzerland] or in other countries, the same conclusions should apply to their laws."

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HIV+ Working Surgeon

posted: 14/01/2009

An HIV-positive surgeon in Israel is being allowed to continue working. He or she is taking HIV treatment and has an undetectable viral load. The Israelis have effectively issued a statement, rather like the Swiss statement we have been reporting on over the last year. Both statements are about how effective HIV treatment can reduce infectivity to close to zero.

simple precautions are enough

The Israeli Ministry of Health has decided that the surgeon with HIV who is receiving antiretroviral treatment may return to carrying out invasive surgical procedures, providing that he or she maintains an undetectable viral load, follows infection control procedures and uses two layers of surgical gloves when operating. 
 

Time for UK HIV+ healthcare workers ban to be reviewed

Healthcare workers with HIV are routinely banned from surgical procedures of any kind, even very minor ones such as stitching wounds. This affects some doctors, midwives, some nurses, dentists, and some ambulance staff, among others. 
 

The Israeli decision is increasing the pressure on bodies regulating UK and other countries' healthcare employment to review their guidance on healthcare workers with HIV engaging in exposure-prone, invasive procedures.

In the United Kingdom, for example, the General Medical Council and the General Dental Council require that HIV-positive healthcare workers desist from carrying out exposure-prone procedures – anything that involves cutting, suturing, use of needles or delivery of babies using forceps or suction, and almost all dental work, – and all healthcare workers recruited to the National Health Service who will be carrying out these types of procedures are tested for HIV. Many healthcare workers have been forced to retire or change careers as a result of the guidance, including several in the NorthWest of England.
 

The Israeli statement is the first official acknowledgement that HIV treatment reduces the risk of bloodborne HIV transmission to such low levels that a doctor, dentist, nurse or midwife can continue working.
It could help reduce stigma for people with HIV, as long as media storms about fears of HIV transmission from healthcare workers can be avoided.
 

NAM's HIV Treatment Update in August/September took a detailed look at whether healthcare workers should be allowed to carry out surgical procedures.
 

HIV is present in potentially infectious quantities in blood, semen, vaginal fluids and breastmilk and, as a result, HIV can be passed on through injecting drug use, unprotected sex, and from a mother to her baby.
 

It’s not inevitable that a person exposed to HIV will become infected with the virus. One of the factors that affects this risk is the viral load of the person with HIV. HIV treatment lowers viral load both in blood and genital fluids.
There’s recently been a lot of debate about the infectiousness of people taking HIV treatment who have an undetectable viral load.
 

Swiss doctors kick-started the debate about a year ago. In a statement, they said that a person taking HIV treatment, who’d had an undetectable viral load for at least six months, who took all their medication and who didn’t have a sexually transmitted infection, was not infectious to their heterosexual partners.
 

The current consensus seems to be that HIV treatment, and all the Swiss conditions, reduces the risk of sexual transmission, but that a small risk may still be present.
 

Full report in the USA's Morbidity and Mortality Weekly Report
Some further details are in the aidsmap report
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