Criminal transmission of HIV

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In many countries, the intentional or reckless infection of a person with the human immunodeficiency virus (HIV) is considered to be illegal. People who do so can be charged with criminal transmission of HIV, murder, manslaughter, attempted murder, or assault. Some states have enacted laws expressly to criminalize HIV transmission, as in the United States, while others charge under the existing laws, as in the United Kingdom. Several other sexually transmitted diseases (STDs) have been known to medical science for centuries, but there was little incentive to criminalize their transmission for two practical reasons:

  • many societies were reluctant to discuss matters of sex, let alone enact legislation to control sexual activity; and
  • unlike HIV (and subsequent AIDS), these other STDs are not fatal.

Contents

[edit] Modes of transmission

Medical research has identified the following situations in which HIV may be transmitted:

  • sexual transmission where one person with an HIV infection engages in consensual sexual contact with another;
  • non-consensual sexual transmission occurring in rape and other sexual offenses, e.g. child sex abuse, sex with a mentally handicapped person, etc.;
  • blood donation and transfusions or other medical procedures involving biological material such as blood, tissue, organs, or semen from an infected donor;
  • the use of unsterilized needles/syringes for medical, recreational drug use (including a range of drug paraphernalia), tattooing, etc.;
  • perinatal and postnatal transmission, e.g. by breast feeding;
  • certain invasive surgical procedures (e.g., HIV has been transmitted through the organ transplantation of kidney, liver, heart, pancreas, bone, and skin, all of which are blood-containing organs or highly vascular tissues, but not through transplantation of bone without marrow, corneas, etc.), but this mode of transmission, along with blood transfusions, has become rare since the development of accurate HIV-testing procedures.

[edit] Blood donation

According to Donegan et al, there is a 90% risk of HIV transmission through infected blood products which is higher than any other transmission means. France began testing blood products for HIV antibodies in June 1985, Canada in November 1985, and Switzerland in May 1986. Germany inconsistently tested plasma products between 1987 and 1993, as did Japan in 1985 and 1986. There were criminal investigations and prosecutions of those persons found to be responsible for these delays (see Weinberg et al]. At least 20 countries now have plans in place to compensate some classes of individuals, e.g. hemophiliacs, infected by the transfusion of HIV-contaminated blood and blood products.

[edit] The legal, political and social problems

The initial stages of HIV-positive are asymptomatic for periods usually exceeding one year. A person who engages in sexual activity or donates blood during this time may therefore have no reasonable basis upon which to suspect that he or she is transmitting a virus. The American Civil Liberties Union and other national groups have expressed concern that many newly drafted laws are too vague because they may criminalize individuals by virtue of their membership of a higher risk class of person, e.g. known drug users, the sexually promiscuous, etc. which will simply encourage prejudice and discrimination against the groups identified. But if the law should have to wait until symptoms appear so that knowledge of the infection could reasonably be suspected (in cases of willful blindness, knowledge could be imputed), the more active sources of infection may have exposed many to the risk of infection. And then there is the even more difficult issue of whether it must be demonstrated that the victim has suffered injury as a result of the transmission. Most criminal laws prohibit conduct that physically harms other people. But not everyone exposed to the virus suffers physical symptoms for a significant period of time or contracts HIV (although there may be psychological injury through fear and apprehension). The offense would therefore have to be based on the exposure of others to risk or endangerment. This may place a legal duty of routine medical testing or of medical testing for cause, followed by a duty of disclosure on those who have actual or imputed knowledge of their condition, but ignores the social reality that the stigma associated with HIV may make disclosure difficult, e.g. loss of marriage and employment through prejudice and discrimination, or dangerous in communities where violence against HIV-positive people is common. After all, there is no confidentiality agreement in the bedroom and prosecutions may be initiated out of revenge. The problems may be particularly acute in marriages and more permanent relationships where disclosure is an admission of sexual infidelity, rape or IV drug use. Seeking a less obvious route such as suddenly suggesting the use of a condom may be difficult without explanation of the implications to the other partner. Women in particular may find it difficult to disclose without severe risks.

The political issues are many:

  • Although the other STDs are not fatal, infection can have severe consequences. Legislatures therefore need to justify why HIV should be treated differently from, say, infection with gonorrhea which, inter alia, increases the risk of becoming infected with HIV.
  • The libertarian view is that every person has autonomy and is therefore responsible for the management of his or her own health. Is it not therefore the case that if two persons have consensual but unprotected sex, there is consent both to the sex and to any medical risks arising from the mutual decision not to use a condom?
  • There may be human rights, civil rights and constitutional issues of privacy to consider.
  • Is medical screening to be made compulsory and, if so, with what degree of regularity, and what should the testing centers do with the information thus obtained? For example, all woman could be tested as a part of their pregnancy management regime. (In this context, note that some life assurance companies already require disclosure of HIV-relevant information as a precondition of the validity of the policies issued.)
  • If reckless transmission is criminalized and there are many high-profile prosecutions, those who might be infected may be deterred from testing so that they will not have actual knowledge of their positive status. This may have serious public health implications.
  • The legislation might have to amend existing laws on medical confidentiality so that doctors, nurses, and other health workers can trace those possibly exposed to the virus. But if their knowledge could be compelled testimony in any subsequent criminal trial, this might deter those infected from making any or any complete disclosure of their sexual or other activities which, again, could have serious public health implications.

Ruth Lowbury, executive director of the Medical Foundation for AIDS and Sexual Health in London (UK) and George R. Kinghorn, clinical director for communicable diseases at Royal Hallamshire Hospital in Sheffield (UK), argue that for the above and related reasons (such as the potential risks of prosecution of HIV/AIDS affected people may dissuade them from warning present or ex-partners about, "criminal prosecutions for HIV transmission threaten public health"[1]. Lowbury and Kinghorn are sceptical of the preventive role of prosecution for reducing the infection rate and recommend that research be carried out to determine whether the net effect of prosecution is to decrease or increase the growth rate of the epidemic. They conclude their report stating that "in the case of criminal prosecution for reckless transmission of HIV, the public interest is not best served by pursuing justice against the few at the expense of the health of the many." The same argument has been made by a number of lawyers, policy makers and sociologists in recent years. See an article by Dr Matthew Weait (Keele University) and Dr Yusef Azad (National AIDS Trust) here.

There is an excellent Report by the World Health Organization on Criminalizing HIV Transmission, which can be found here.

The legal, political and social problems associated with HIV were discussed at a seminar series at Keele University in 2005/6. The papers at that seminar can be accessed here.

[edit] Example Statute

This is the Criminal Transmission of HIV from the Iowa Code.

CODE OF IOWA 2002

TITLE XVI. CRIMINAL LAW AND PROCEDURE
SUBTITLE 1. CRIME CONTROL AND CRIMINAL ACTS

CHAPTER 709C. CRIMINAL TRANSMISSION OF HUMAN IMMUNODEFICIENCY VIRUS


709C.1 Criminal transmission of human immunodeficiency virus.

1. A person commits criminal transmission of the human immunodeficiency virus if the person, knowing that the person's human immunodeficiency virus status is positive, does any of the following:
a. Engages in intimate contact with another person.
b. Transfers, donates, or provides the person's blood, tissue, semen, organs, or other potentially infectious bodily fluids for transfusion, transplantation, insemination, or other administration to another person.
c. Dispenses, delivers, exchanges, sells, or in any other way transfers to another person any nonsterile intravenous or intramuscular drug paraphernalia previously used by the person infected with the human immunodeficiency virus.
2. For the purposes of this section:
a. "Human immunodeficiency virus" means the human immunodeficiency virus identified as the causative agent of acquired immune deficiency syndrome.
b. "Intimate contact" means the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of the human immunodeficiency virus.
c. "Intravenous or intramuscular drug paraphernalia" means any equipment, product, or material of any kind which is peculiar to and marketed for use in injecting a substance into or withdrawing a bodily fluid from the human body.
3. Criminal transmission of the human immunodeficiency virus is a class "B" felony.
4. This section shall not be construed to require that an infection with the human immunodeficiency virus has occurred for a person to have committed criminal transmission of the human immunodeficiency virus.
5. It is an affirmative defense that the person exposed to the human immunodeficiency virus knew that the infected person had a positive human immunodeficiency virus status at the time of the action of exposure, knew that the action of exposure could result in transmission of the human immunodeficiency virus, and consented to the action of exposure with that knowledge.

The above was from the Iowa Legislature's Web Site Section on the Iowa Code.

[edit] Outside the United States

In many English-speaking countries and in most of the states who have signed the European Convention of Human Rights[2], knowingly infecting others with HIV can lead to criminal prosecution. In a 2004 survey of the latter group, the Global Network of People Living with HIV/AIDS found that at least one prosecution had occurred in about half of these countries, and that in Finland, Sweden and Slovakia, about 0.5% to 1% of all people reported to be living with HIV/AIDS had been prosecuted for alleged intentional or "negligent" transmission of HIV.[2]

In many developing countries such as Thailand where the HIV/AIDS pandemic is much more serious, laws are either weak or non-existent regarding criminalisation of intentional transmission.[1]

[edit] Australia

In most states disclosure is not required. However in New South Wales a person with HIV must disclose their status to all sexual partners.

[edit] England and Wales

For a full discussion of the issues raised in sexual transmission, see consent

Transmission generally, may fall under ss18, 20, 23, 24 or 47 Offences Against The Person Act 1861 (OAP). As of 21 April 2006, there have been seven convictions for the sexual transmission of HIV in England and Wales under s20 OAP which, inter alia, criminalizes the reckless inflicting of grievous bodily harm. Five were men accused of infecting female partners during sex (including Mohammed Dica, Kouassi Adaye, Feston Konzani, Paulo Matias: three African men, two of whom were asylum seekers and one a refugee, and a migrant from Portugal), one of a man who pleaded guilty to infecting a male partner, and one (in Wales) of a woman who pleaded guilty to infecting a male partner.

In the case of Adaye, the defendant had never received a diagnosis of being HIV-positive, but he was charged on the basis that a GP had told him he was at high risk of having HIV.

In only two of the cases was there a 'not guilty' plea, and both have gone to appeal. In R. v Dica, the Court of Appeal held that a person was reckless if, knowing that they were HIV-positive, he or she transmitted HIV to a person who had not been told of the infection. It was not necessary to prove that the transmission had involved an assault for the "inflicting" of the disease. They acknowledged that there could be a higher standard of disclosure expected of someone in a relationship, compared with the "known risks" involved in casual sex. A critical discussion of the Dica case by Matthew Weait can be found here.

In R. v Konzani, the same court held that a person accused of recklessly transmitting HIV could only raise the defense of consent, including an honest belief in consent, in cases where that consent was a "willing" or "conscious" consent. In other words, the court distinguished between “willingly running the risk of transmission” and “willingly consenting to the risk of transmission.” This suggests that consent will only operate as a defense -- in all but the most exceptional of cases -- where there has already been prior disclosure of known HIV-positive status. A critical discussion of the Konzani case can be found here.

As of June 2006, two women have been convinced for passing on an HIV infection in the UK. The first, from Cardiff, was jailed for 2 years;[2] the second, Sarah Jane Porter, was convicted of grievous bodily harm through the reckless transmission of HIV, and was sentenced to 32 months in prison in June 2006.[3]

An important issue that arises where proof of transmission is required, is establishing the source of the complainant's HIV infection. Although it cannot prove the route and timing of transmission, phylogenetic analysis has been used in many trials to demontrate how closely related HIV strains in samples taken from the defendant and complainant are. For an account of the issues and problems surrounding phylogenetic analysis in criminal investigation see the National AIDS Manual and National AIDS Trust briefing paper.

A number of presentations from the Economic and Social Research Council funded seminar series HIV/AIDS and Law: Theory, Practice and Policy (Keele University) deal with the question of criminalization. They may be found here.

[edit] Scotland

In February 2001 Stephen Kelly, an ex-prisoner and former IV drug user, was convicted of the Scots common law offence of "recklessly injuring" his former partner by infecting her with HIV. Two other prosecutions have been brought, but have been halted because one accused (Christopher Walker) was found to be mentally incapable of standing trial and the other accused is currently in Italy pending extradition.

[edit] New Zealand

A New Zealand District Court ruled on 6 October 2005 that HIV-positive people need not tell sexual partners about their status so long as safe sex is practiced. In the case being ruled on, the man had used a condom during intercourse but not during oral sex. His partner had not been infected. The same man was convicted of criminal nuisance earlier for having unprotected sex with another partner without revealing his HIV status.

[edit] Canada

The leading case is R. v. Cuerrier (1998) 127 CCC (3d) 1 (SCC) where the defendant was charged with aggravated assault for the sexual transmission of HIV under s268 Canadian Criminal Code. The Supreme Court of Canada found that the trial judge had misdirected himself and ordered a new trial on two counts of aggravated assault but, in May 1999, the Attorney-General for British Columbia announced that a new trial would not take place. The Supreme Court ruling caused difficulty because even though it only concerned non-disclosure of HIV-positive status in sexual situations, it unanimously rejected of the English authority of R v Clarence, L’Heureux-Dubé stating that any fraud could vitiate consent to all types of assault because the autonomy and physical integrity of the person has been violated. Thus, because the Canadian legislature has declined to criminalize the transmission of HIV, the judiciary must address the issues as and when they arise. Consequently, there has been considerable uncertainty.

On 1 December 2005, Jian Ghomeshi filed a report on this issue for the CBC. He asked whether there is a legal obligation to disclose HIV status. He held up the case of Johnson Aziga, who was diagnosed in 1996 but then allegedly had unprotected sex with at least 13 women. Aziga is now charged with two counts of murder and 11 counts of aggravated sexual assault; the prosecution claims that he did not disclose his status.

Hamish Stewart, a University of Toronto law professor, says

Non-disclosure is a form of deception if it is the kind of thing that a reasonable person would expect to be disclosed.... If the Crown can show that the accused knew that he was imposing this kind of risk of death on them, and was indifferent to the risk, then that would probably be sufficient to satisfy the element of intent for murder.

Several Canadian courts have ruled that people who are not informed that a sexual partner is HIV-positive cannot truly give consent to sex. As a result, the death of Aziga's partners is automatically considered to be murder (instead of the lesser charge of manslaughter).

Yet this legal opinion is not held equally by the gay community, says the editor of a prominent Canadian gay and lesbian magazine: "I think the majority [of readers]... would feel that there was recklessness on both parties' part and it should not be turned into a murder charge." He continued later with some advice:

You should always assume that the other person is HIV positive.... You have to assume that they lie.... That's the reality of living in society for the past 25 years.

For the complete details, see Jian's feature report from CBC News: The Hour.

[edit] References

  1. ^ Lowbury, Ruth; George R Kinghorn. HIV transmission as a crime. studentBMJ. Retrieved on 2007-01-10.
  2. ^ a b Global Network of People Living with HIV/AIDS Europe, Terrence Higgins Trust (2005). Criminalisation of HIV transmission in Europe: A rapid scan of the laws and rates of prosecution for HIV transmission within signatory States of the European Convention of Human Rights. Global Network of People Living with HIV/AIDS. Retrieved on 2007-01-10.

[edit] Further reading

  • Chalmers, James 'The criminalisation of HIV Transmission' 28 Journal of Medical Ethics (2002) 160; Criminal Law Review (2004) 944;
  • Donegan E, Lee H, Operskalski EA, Shaw GM, Kleinman SH, Busch MP, Stevens CE, Schiff ER, Nowicki MJ, Hollingsworth CG. Transfusion transmission of retroviruses: human T-lymphotropic virus types I and II compared with human immunodeficiency virus type 1. Transfusion. 1994 Jun;34(6):478-83. PubMed ID: 94295061
  • Spencer, J.R. 'Liability for Reckless Infection: Part 1' New Law Journal (12 March 2004) 384;
  • Spencer, J.R. 'Liability for Reckless infection: Part 2' New Law Journal (26 March 2004) 448;
  • Spencer, J.R. 'Reckless Infection in the Course of Appeal' New Law Journal (21 May 2004) 762;
  • Weait, Matthew (2007) Intimacy and Responsibility: the Criminalisation of HIV Transmission (Abingdon: Routledge-Cavendish);
  • Weait, Matthew 'Dica: Knowledge, Consent and the Transmission of HIV' New Law Journal (28 May 2004) 826;
  • Weait, Matthew 'Criminal Law and the Sexual Transmission of HIV: R v Dica' 68(1) Modern Law Review (2005) 121; [4]
  • Weait, Matthew 'Taking the blame: criminal law, social responsibility and the sexual transmission of HIV' 23(4) Journal of Social Welfare and Family Law (2001) 441-457;
  • Weait, Matthew & Azad, Yusef 'The criminalization of HIV transmission in England and Wales: Questions of Law and Policy' HIV/AIDS Policy and Law Review (August 2005) [5]
  • Weinberg PD, Hounshell J, Sherman LA, Godwin J, Ali S, Tomori C, Bennett CL. Legal, financial, and public health consequences of HIV contamination of blood and blood products in the 1980s and 1990s. Ann Intern Med. 2002 Feb;136(4):312-9. PubMed ID: 11848729

[edit] External links