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.
 

Source

On sentencing and imprisonment

HIV Prosecutions Focus

posted: 11/01/2010

HIV prosecutions and criminalisation in different countries is the focus of the latest issue of 'Reproductive Health Matters'.
 

One article looks at how gay men living with HIV in England and Wales have responded to prosecutions. This follows work by Sigma Research in its 2009 report ‘Relative Safety 2'. 
 

Does prosecution in an epidemic make public health better or worse?
 

42 HIV positive gay men, including some men using services at George House Trust, were asked what they knew about HIV prosecutions and how it may have changed their behaviour.
 

Only one in three are right about the law
There is considerable confusion among these gay men about the law and mistakes about whether their behaviour is legal or not. 1 in 3 of the men living with HIV were broadly right about how the law affects them. Most of the men were mistaken about the law.
 

Some of the men have changed their behaviour because of the law and reduced the risk of transmission, by telling partners their HIV status before sex, or in other ways.
 

Prosecutions have made HIV transmission more likely for most HIV positive men
But for most of the men, the law has made transmission more likely. Some of the men have felt pushed towards more anonymous sex, and are now less likely to tell partners they have HIV: HIV stigma is reinforced by prosecutions.
 

Other men felt that they were already being safe and so the law would not really matter because they wouldn’t pass on HIV anyway. But many of the men are making mistakes in their judgements about the risks so the likelihood of transmission rises.
 

A small number of other men are not able or willing to reduce their transmission risks despite the possibility of prosecution.
 

Public health harm outweighs the good
The aim of the criminal justice system is to provide justice, not to improve public health. But using the criminal law in an epidemic has few public health benefits and these are outweighed by the public health harms. Most of the men believe they are doing enough to prevent HIV transmission and that they are on the right side of the law. Most of them are mistaken about both.
 

The law is complicated and it doesn't fit the complex reality of living with HIV - the strong force of HIV stigma, the difficulties of accurately judging transmission risks in different situations, the impossibility of providing plain and simple advice, and the complexities of some men's lives, all make HIV transmission more likely.
 

Involving the law has bad unintended public health consequences. George House Trust has always argued that prosecutions for HIV transmission do more public health harm than good. The evidence is here.

 

Source Responses to criminal prosecutions for HIV transmission among gay men with HIV in England and Wales Catherine Dodds, Adam Bourne, Matthew Weait

This is based on research for Relative Safety 2 - Sigma Research 2009
 

Reproductive Health Matters Volume 17, Issue 34, Pages 4-224 (November 2009) €21 / US$28 for the single issue

Articles on HIV criminalisation in this journal

• Criminalising HIV transmission: punishment without protection
• Protecting HIV-positive women's human rights: recommendations for the United States National HIV/AIDS Strategy
• Responses to criminal prosecutions for HIV transmission among gay men with HIV in England and Wales
• Advocating prevention over punishment: the risks of HIV criminalization in Burkina Faso
• Vertical HIV transmission should be excluded from criminal prosecution
• Ten reasons to oppose the criminalization of HIV exposure or transmission
• International consultation on the criminalization of HIV transmission: 31 October – 2 November 2007, Geneva, Switzerland Joint United Nations Programme on HIV/AIDS (UNAIDS),
• Round Up: HIV and AIDS

Public Interest in HIV Prosecutions

posted: 02/12/2009

Last night there was a panel discussion at City University, London on Criminal prosecutions for HIV transmission, which was a success. A speaker from the Crown Prosecution Service talked about when it is not in the ‘public interest’ to prosecute.

It seems the Crown Prosecution Service (CPS) is now changing its view on what is ‘the public interest’ – as a result of preparing its new policy on prosecuting assisted suicide. This is forcing it to look more carefully at what is the ‘public interest.’

HIV prosecutions not in the public interest

George House Trust will be looking to see how we can persuade the Crown Prosecution Service that prosecuting sexual transmission of HIV or any other infection is definitely not in the public interest.

When reckless HIV transmissions were first prosecuted, and when the Crown Prosecution Service was writing its first guidelines for HIV prosecutions, George House Trust (among others) argued very strongly that HIV stigma and discrimination and its consequences should all be considered as powerful public interest arguments against any HIV prosecutions.

We said it is never ‘in the public interest’ to drive people away from HIV testing and treatment of a life-limiting condition for fear of the law. The public health of very many people is significantly damaged by prosecuting very few (there have only been 15 HIV prosecutions).

Unfortunately we couldn't persuade the CPS to take the broad, social, view of public interest and the unintended consequences of prosecuting HIV transmission - a life-limiting condition subject to serious social stigma. But may be things are changing on the 'public interest' and how this is defined.

George House Trust will continue to work with the HIV sector and others to see whether we can persuade prosecutors now to take a broader view to consider unintended harms to public health and worsening stigma as part of the ‘public interest.’

Relevant consultations

Code for Crown Prosecutors is being redrafted and is open to public consultation - deadline Jan 11 2010

Consultation on prosecuting assisted suicide - deadline mid-December.

Consultation on Prosecutor's Core Standards especially the discussion of community engagement - deadline Jan 18 2010
 

Expert Prosecutions Panel

posted: 03/11/2009

Clive Anderson (the broadcaster and barrister) chairs an expert panel to discuss prosecution of HIV transmission issues.

London’s City Law School hosts an impressive pnel of speakers on 1 December, World AIDS Day, to debate the issues around the criminalisation of HIV transmission.
 

• What are the arguments for and against criminalising the transmission of HIV and other serious sexually transmitted infections?
• What are the legal principles that inform this complex area of law
• Wat factors should be taken into account when deciding to prosecute?
• Should public health considerations take priority over demands for retribution and punishment?
• What evidence is there that criminalisation works?

Your Panel of Pundits

Clive Anderson, Barrister & Broadcaster - Chair

Yusef Azad, Director of Policy & Campaigns, National AIDS Trust

Catherine Dodds, Senior Research Fellow, Sigma Research, University of Portsmouth

Arwel Jones, Team Leader of the Domestic Affairs Division Crown Prosecution Service

Matthew Weait, Reader in Socio-Legal Studies, School of Law, Birkbeck University and author of Intimacy and Responsibility, The Criminalisation of HIV Transmission.

Bookings
Place          Oliver Thompson Lecture Theatre, Northampton Square, London EC1V 0HB
map and directions
 

18.00 Registration, 18.30 Panel and discussion, 20.00 Networking & refreshments
 

HIV Prosecutions Guide

posted: 26/05/2009

A handy guide for people living with HIV about prosecutions for HIV transmission is now available. THT and NAT have produced this guide for people living with HIV.

Yusef Azad, Director of Policy and Campaigns, NAT, commented:

“Today the majority of investigations into HIV transmission do not go to court but they can still cause much distress for all involved. NAT is still campaigning for an end to prosecutions for reckless transmission of HIV through consensual sex. But while prosecutions occur we are working with THT to ensure that all those involved – lawyers, prosecutors, police, support organisations, healthcare workers and most importantly people living with HIV understand the law. Everybody living with HIV in England and Wales should read this leaflet.”

Lisa Power, Head of Policy, Terrence Higgins Trust, said:

"It's really important that everyone with HIV knows what the law says and does in relation to their lives. We've supported many people - both complainants and defendants - who got involved in prosecutions for passing HIV without taking proper advice and regretted it later. This leaflet would have helped them."

As well as producing guidance for individuals living with HIV, George House Trust, THT and NAT are working to ensure police investigate allegations of reckless or intentional HIV transmission appropriately.

With George House Trust assistance, THT recently produced the report Policing Transmission

Anyone concerned about prosecutions for HIV transmission in Northwest Engalnd should call George House Trust's services team 0161 274 4499 or email.

If you live outside Northwest England call THT Direct on 0845 12 21 200.

The legal situation around transmission of HIV shifts and changes with each court case and this leaflet is brand new, but in the months ahead things may change. Information should be checked for accuracy if you are reading the Guide long past May 2009. Instead check the prosecutions pages of both NAT and THT using the links below.

THT and NAT's Guide to Prosecutions for HIV Transmission

Other information on the THT prosecutions page and at NAT's prosecutions page