Criminal transmission of HIV
Encyclopedia
In many countries, the intentional or reckless infection of a person with the human immunodeficiency virus (HIV) is considered to be a crime. This is often conflated, in laws and in discussion, with criminal exposure to HIV, which does not require the transmission of the virus and often, as in the cases of spitting and biting, does not even include a realistic means of transmission. 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 (or HIV exposure), as in the United States, while others charge under the existing laws, as in the United Kingdom.
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.
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.
Moreover, most countries only criminalize HIV exposure or transmission if a person has been tested for HIV, and knows their positive test results. Because knowledge of status is a requirement for prosecution, criminal laws may act as a disincentive to testing, especially among the most high risk communities.
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.
The political issues are many:
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".
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 a 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.
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. 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.
of the German pop music group No Angels
admitted to sex with several men while knowing her HIV-positive status, and infecting one of those several, who subsequently brought the case against her. She faces prison, but has denied any intent to infect, apologising profusely and saying "When I was arrested I realised that the way that I had dealt with the illness had been wrong... I made a big mistake... No way did I want my partner to be[come] infected." Benaissa has claimed she had been told by doctors that the risk of passing on the virus was "practically zero".source
(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. Subsequent legal precedent has established that failure to disclose HIV-positive status, combined with failure to utilize protective measures (condom use), is sufficiently fraudulent behaviour to constitute turning "consensual" sex into aggravated sexual assault, since the other party has been denied the information necessary to give properly informed consent.
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 was charged with two counts of murder and 11 counts of aggravated sexual assault; the prosecution claims that he did not disclose his status. On 4 April 2009, Aziga was found guilty of the two counts of first degree murder as well as the lesser counts. The current precedent in Canada stands as any person who has HIV, fails to disclose the fact to their sexual partner, and does not take some sort of protective measure (such as condom use), is guilty of aggravated sexual assault as per R. v. Cuerrier
and subsequent cases. Aziga was convicted of first degree murder since under Canadian law, any death as a result of aggravated sexual assault (two of the women died as a result of the HIV infection received from intercourse with Aziga) is automatically first degree murder as per section 231 of the Criminal Code of Canada.
Hamish Stewart, a University of Toronto
law professor, says
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
).
Thomas was given a 14 year prison sentence at the Helsinki court on 10 July 1997 for 17 counts of attempted manslaughter
. Thomas was found to have infected five of the 17 women with HIV, and was ordered to pay damages of $63,000–$73,000 to each infected victim. The sentence was widely criticized within the legal system, because under Finnish law the maximum sentence for multiple counts of attempted manslaughter is 12 years. Lauri Lehtimaja, the Ombudsman of the Eduskunta gave a warning to the court judge about his misuse of the law. The Helsinki Court of Appeal lowered the sentence in December 1997 to be 11 years and 6 months of imprisonment. The documents of the case were classified for 40 years.
Another Finnish man convicted of spreading HIV knowingly through having unprotected sex with many women without disclosing his HIV serostatus
was Aki Matti Hakkarainen . He was born in 1983 in Southern Finland
and has lived in Rovaniemi
since 2002. He was also sentenced in 2005 to one year and nine months in prison for a similar crime. In August 2007, Hakkarainen was arrested by Rovaniemi police after being reported by a young woman who said she had contracted HIV from Hakkarainen during unprotected sex. On 5 October 2007, the police published the name and picture of Hakkarainen in newspapers in an effort to reach every women who had had sexual intercourse
with Hakkaraien.
In court, Hakkarainen admitted that he was guilty of having unprotected sex with the women but denied trying to infect them with the virus. On 22 April 2008, the Rovaniemi court decided that Hakkarainen purposefully infected five women with HIV and in August 2008 Hakkarainen was found guilty of five counts of aggravated assault and 14 counts of attempted aggravated assault because he did not inform his sexual partners about his condition, he was sentenced to ten years imprisonment
. He was also ordered to pay 45 000–55 000 euros compensation to the five women that contracted the virus.
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.
Pending an investigation, a 40 year old bisexual man, is thought to have infected at least five younger gay men between 2008 and 2009.
Revelations came after one of the young gay men laid a formal complaint to the New Zealand police
. A popular website www.gaynz.com approached the man regarding his practices. Sex venues have also shut their doors to what is being called a 'HIV predator'.
On 28 May 2009 police arrested the 40 year old man accused of infecting three men with the virus and attempting to infect a fourth.
The court on 16 June heard that two more people have come forward to lay formal complaints against the man, bringing the total so far to six. The eight new charges laid against the man include that he "with reckless disregard for the safety of others caused – or attempted to cause – grevious bodily harm to five males aged 17, 20, 24, 26, and 31, plus a female aged 19." He also now faces charges of "wilfully and without justification or excuse causing in a male aged 20 and a female aged 19 a disease, namely HIV."
The trial set for 2010 will not proceed as Glenn Mills, the Auckland man accused of knowingly exposing fourteen young people to HIV, has been found dead in his Mt Eden remand prison cell on 30 November 2009. Mills was due in court for a hearing regarding the progress of the case. In recent weeks he had made two unsuccessful applications to be released on bail. He has been on remand since the first of a series of charges were laid against him on 28 May 2009.
Transmission generally, may fall under ss18, 20, 23, 24 or 47 Offences against the Person Act 1861
. As of 19 June 2006, there have been seven convictions for the sexual transmission of HIV in England and Wales under s.20 of the 1861 Act which, inter alia, criminalizes the reckless inflicting of grievous bodily harm
. Of these, five were men accused of infecting female partners during sex, one was a man who pleaded guilty to infecting a male partner, and one (in Wales) was a woman who pleaded guilty to recklessly inflicting GBH on her 31-year-old lover.
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 convicted for passing on an HIV infection in the UK. The first, from Cardiff, was jailed for 2 years; 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.
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 demonstrate 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 aidsmap
's 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.
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.
and failure to disclose his or her status is committing a crime. A person donating HIV infected organs, tissues, and blood can be prosecuted for transmission of the virus. Spitting or transmitting HIV infected bodily fluids is considered a criminal offense in some states, particularly where the target is a prison guard. Some states consider criminal transmission of HIV as a misdemeanor
. These states have laws that prosecute individuals for criminal exposure of HIV: Alabama
, Alaska
, Arkansas
, California, Colorado
, Delaware
, Florida, Georgia
, Idaho
, Illinois
, Indiana
, Iowa
, Kansas
, Kentucky
, Louisiana
, Maryland
, Michigan
, Mississippi
, Missouri
, Montana
, Nevada
, New Jersey
, New York, North Dakota
, Ohio
, Oklahoma
, Pennsylvania
, South Carolina
, South Dakota
, Tennessee
, Texas, Utah
, Virginia
, and Washington.
In July 2010 the White House
announced a major change in its HIV/AIDS policy, a change informed by public health law research carried out by Scott Burris, professor of law at Temple University
and the director of the Public Health Law Research program. The official National HIV/AIDS Strategy for the United States concluded that “the continued existence and enforcement of these types of laws [criminalizing HIV infection] run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment.”
The administration strategy credits "The case against criminalization of HIV transmission", a piece by Burris and Edwin Cameron, a South African judge, in the Journal of the American Medical Association
in 2008. They wrote “The use of criminal law to address HIV infection is inappropriate except in rare cases in which a person acts with conscious intent to transmit HIV and does so.”
Consistent with the White House HIV/AIDS Strategy, there has been a growing movement to fight criminalization and HIV-specific criminal laws. In the fall of 2010, The Positive Justice Project, a campaign of the Center for HIV Law and Policy, was launched to combat HIV-related stigma and discrimination against people with HIV by the United States criminal justice system. A day-long launch meeting, held in New York, included more than 40 participants from legal, government, grant-making and community service organizations. The Positive Justice Project has since released a comprehensive manual of HIV-specific laws and prosecutions in the 50 states, District of Columbia, U.S. Territories, Federal government, and military.
On 23 September 2011 Congresswoman Barbara Lee
(D-CA) introduced H.R. 3053: The Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act or the REPEAL HIV Discrimination Act. The REPEAL HIV Discrimination Act calls for review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses. It is the first piece of federal legislation to take on the issue of HIV criminalization, and provides incentives for states to reconsider laws and practices that target people with HIV for consensual sex and conduct that poses no real risk of HIV transmission.
Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
, attempted murder
Attempted murder
Attempted murder is a crime in England and Wales and Northern Ireland.-Today:In English criminal law, attempted murder is the crime of more than merely preparing to commit unlawful killing and at the same time having a specific intention to cause the death of human being under the Queen's Peace...
, or assault. Some states have enacted laws expressly to criminalize HIV transmission (or HIV exposure), as in the United States, while others charge under the existing laws, as in the United Kingdom.
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 unprotected sexual intercourseSexual intercourseSexual intercourse, also known as copulation or coitus, commonly refers to the act in which a male's penis enters a female's vagina for the purposes of sexual pleasure or reproduction. The entities may be of opposite sexes, or they may be hermaphroditic, as is the case with snails...
with another, thus transferring the virus; - Blood donationBlood donationA blood donation occurs when a person voluntarily has blood drawn and used for transfusions or made into medications by a process called fractionation....
and transfusionsBlood transfusionBlood transfusion is the process of receiving blood products into one's circulation intravenously. Transfusions are used in a variety of medical conditions to replace lost components of the blood...
or other medical procedures involving biological material such as blood, tissue, organs, or semen from an infected donor; HIV has been transmitted through the organ transplantOrgan transplantOrgan transplantation is the moving of an organ from one body to another or from a donor site on the patient's own body, for the purpose of replacing the recipient's damaged or absent organ. The emerging field of regenerative medicine is allowing scientists and engineers to create organs to be...
ation 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. - The use of unsterilized needles/syringes for medical, recreational drug useRecreational drug useRecreational drug use is the use of a drug, usually psychoactive, with the intention of creating or enhancing recreational experience. Such use is controversial, however, often being considered to be also drug abuse, and it is often illegal...
(including a range of drug paraphernaliaDrug paraphernaliaDrug paraphernalia is a term used, often with a slightly negative connotation due to its use in criminal law field e.g. "possession of drug paraphernalia", to denote any equipment, product, or material that is modified for making, using, or concealing drugs, typically for recreational purposes...
), tattooing, body piercingBody piercingBody piercing, a form of body modification, is the practice of puncturing or cutting a part of the human body, creating an opening in which jewelry may be worn. The word piercing can refer to the act or practice of body piercing, or to an opening in the body created by this act or practice...
, etc.; - Pregnancy and postnatalPostnatalPostnatal is the period beginning immediately after the birth of a child and extending for about six weeks. Another term would be postpartum period, as it refers to the mother...
transmission (e.g., breast feeding)
Blood donation
France began testing blood products for HIV antibodiesAntibody
An antibody, also known as an immunoglobulin, is a large Y-shaped protein used by the immune system to identify and neutralize foreign objects such as bacteria and viruses. The antibody recognizes a unique part of the foreign target, termed an antigen...
in June 1985, Canada in November 1985, and Switzerland
Switzerland
Switzerland name of one of the Swiss cantons. ; ; ; or ), in its full name the Swiss Confederation , is a federal republic consisting of 26 cantons, with Bern as the seat of the federal authorities. The country is situated in Western Europe,Or Central Europe depending on the definition....
in May 1986. Germany inconsistently tested plasma
Blood plasma
Blood plasma is the straw-colored liquid component of blood in which the blood cells in whole blood are normally suspended. It makes up about 55% of the total blood volume. It is the intravascular fluid part of extracellular fluid...
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.
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 UnionAmerican Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
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.
Moreover, most countries only criminalize HIV exposure or transmission if a person has been tested for HIV, and knows their positive test results. Because knowledge of status is a requirement for prosecution, criminal laws may act as a disincentive to testing, especially among the most high risk communities.
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
Condom
A condom is a barrier device most commonly used during sexual intercourse to reduce the probability of pregnancy and spreading sexually transmitted diseases . It is put on a man's erect penis and physically blocks ejaculated semen from entering the body of a sexual partner...
may be difficult without explanation of the implications to the other partner.
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 gonorrheaGonorrheaGonorrhea is a common sexually transmitted infection caused by the bacterium Neisseria gonorrhoeae. The usual symptoms in men are burning with urination and penile discharge. Women, on the other hand, are asymptomatic half the time or have vaginal discharge and pelvic pain...
. - There may be human rights, civil rightsCivil rightsCivil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
and constitutional issues of privacyPrivacyPrivacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
to consider. - Whether medical screening would need to be made compulsory; if so, with what degree of regularity; how would such compulsory testing possibly be enforced across all populations in all circumstances; and what should the testing centers do with the information thus obtained. (For example, all women could be tested as a part of their pregnancy management regime; in this context, note that some life insurance 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 spare themselves actual knowledge of their positive status; such a phenomenon on a wide scale could 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
Sheffield
Sheffield is a city and metropolitan borough of South Yorkshire, England. Its name derives from the River Sheaf, which runs through the city. Historically a part of the West Riding of Yorkshire, and with some of its southern suburbs annexed from Derbyshire, the city has grown from its largely...
(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".
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 a report by the World Health Organization
World Health Organization
The World Health Organization is a specialized agency of the United Nations that acts as a coordinating authority on international public health. Established on 7 April 1948, with headquarters in Geneva, Switzerland, the agency inherited the mandate and resources of its predecessor, the Health...
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
Keele University
Keele University is a campus university near Newcastle-under-Lyme in Staffordshire, England. Founded in 1949 as an experimental college dedicated to a broad curriculum and interdisciplinary study, Keele is most notable for pioneering the dual honours degree in Britain...
in 2005/6. The papers at that seminar can be accessed here.
Legal events in connection with criminal-transmission events
In many English-speaking countries and in most of the states who have signed the European Convention of Human Rights, 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
Global Network of People living with HIV/AIDS
The Global Network of People living with HIV and AIDS is an international network representing all people living with HIV and AIDS. Their main agenda covers sexual and reproductive health/rights, human rights and the empowerment of people living with HIV and is named by GNP+ as the "Global...
found that at least one prosecution had occurred in about half of these countries, and that in Finland
Finland
Finland , officially the Republic of Finland, is a Nordic country situated in the Fennoscandian region of Northern Europe. It is bordered by Sweden in the west, Norway in the north and Russia in the east, while Estonia lies to its south across the Gulf of Finland.Around 5.4 million people reside...
, Sweden and Slovakia
Slovakia
The Slovak Republic is a landlocked state in Central Europe. It has a population of over five million and an area of about . Slovakia is bordered by the Czech Republic and Austria to the west, Poland to the north, Ukraine to the east and Hungary to the south...
, 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. In many developing countries such as Thailand
Thailand
Thailand , officially the Kingdom of Thailand , formerly known as Siam , is a country located at the centre of the Indochina peninsula and Southeast Asia. It is bordered to the north by Burma and Laos, to the east by Laos and Cambodia, to the south by the Gulf of Thailand and Malaysia, and to the...
where the HIV/AIDS pandemic is much more serious, laws are either weak or non-existent regarding criminalisation of intentional transmission.
Germany
In the Federal Republic of Germany on 16 August 2010, Nadja BenaissaNadja Benaissa
Nadja Benaissa is a German singer, songwriter and occasional actress, who rose to fame as one of the founding members of the successful all-female pop band No Angels, the "biggest-selling German girlband to date", according to the German media.After a series of commercially successful releases...
of the German pop music group No Angels
No Angels
The No Angels are an all-female pop trio from Germany, consisting of band members Lucy Diakovska, Sandy Mölling, and Jessica Wahls. Critically acclaimed, the band has won dozen of awards and prizes since their establishment in the early 2000s, including three ECHOs, a World Music Awards, a NRJ...
admitted to sex with several men while knowing her HIV-positive status, and infecting one of those several, who subsequently brought the case against her. She faces prison, but has denied any intent to infect, apologising profusely and saying "When I was arrested I realised that the way that I had dealt with the illness had been wrong... I made a big mistake... No way did I want my partner to be[come] infected." Benaissa has claimed she had been told by doctors that the risk of passing on the virus was "practically zero".source
Australia
In New South Wales a person with HIV must disclose their status to all sexual partners. In other states, there is no specific legislation to require disclosure and whether or not the law requires it is open to debate. Intentionally transmitting the virus is a crime in all states, either specifically, or because it meets the definition of a more general offense such as conduct endangering life (this varies from state to state).Canada
The leading case is R. v. CuerrierR. v. Cuerrier
R. v. Cuerrier was a 1998 decision by the Supreme Court of Canada, which ruled that knowingly exposing a sexual partner to HIV constitutes a prosecutable crime under Canadian law.-Background:...
(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. Subsequent legal precedent has established that failure to disclose HIV-positive status, combined with failure to utilize protective measures (condom use), is sufficiently fraudulent behaviour to constitute turning "consensual" sex into aggravated sexual assault, since the other party has been denied the information necessary to give properly informed consent.
On 1 December 2005, Jian Ghomeshi
Jian Ghomeshi
Jian Ghomeshi is a Canadian broadcaster, writer, musician and producer of Iranian descent who was raised in Thornhill, Ontario. Now based in Toronto, he is the host of the national daily cultural affairs talk program, Q, on CBC Radio One and Bold TV...
filed a report on this issue for the CBC
Canadian Broadcasting Corporation
The Canadian Broadcasting Corporation, commonly known as CBC and officially as CBC/Radio-Canada, is a Canadian crown corporation that serves as the national public radio and television broadcaster...
. He asked whether there is a legal obligation to disclose HIV status. He held up the case of Johnson Aziga
Johnson Aziga
Johnson Aziga is a Ugandan-born Canadian man resident in Hamilton, Ontario, Canada, notable as the first person to be charged and convicted of first-degree murder in Canada for spreading HIV, after two women whom he had infected without their knowledge died.- Background :Aziga was a former staffer...
, who was diagnosed in 1996 but then allegedly had unprotected sex with at least 13 women. Aziga was charged with two counts of murder and 11 counts of aggravated sexual assault; the prosecution claims that he did not disclose his status. On 4 April 2009, Aziga was found guilty of the two counts of first degree murder as well as the lesser counts. The current precedent in Canada stands as any person who has HIV, fails to disclose the fact to their sexual partner, and does not take some sort of protective measure (such as condom use), is guilty of aggravated sexual assault as per R. v. Cuerrier
R. v. Cuerrier
R. v. Cuerrier was a 1998 decision by the Supreme Court of Canada, which ruled that knowingly exposing a sexual partner to HIV constitutes a prosecutable crime under Canadian law.-Background:...
and subsequent cases. Aziga was convicted of first degree murder since under Canadian law, any death as a result of aggravated sexual assault (two of the women died as a result of the HIV infection received from intercourse with Aziga) is automatically first degree murder as per section 231 of the Criminal Code of Canada.
Hamish Stewart, a University of Toronto
University of Toronto
The University of Toronto is a public research university in Toronto, Ontario, Canada, situated on the grounds that surround Queen's Park. It was founded by royal charter in 1827 as King's College, the first institution of higher learning in Upper Canada...
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
Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
).
Finland
The first case of criminal HIV infection in Finland was that of Steven Thomas, a US citizen from New York, who was convicted in 1997 in Helsinki for knowingly infecting Finnish women with HIV during 1993–1996. In January 1997, Finnish police published Thomas' picture in newspapers and stated that Thomas may have infected tens or even hundreds of Finnish women with HIV. Seventeen women said they had been in unprotected sexual contact with Thomas.Thomas was given a 14 year prison sentence at the Helsinki court on 10 July 1997 for 17 counts of attempted manslaughter
Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
. Thomas was found to have infected five of the 17 women with HIV, and was ordered to pay damages of $63,000–$73,000 to each infected victim. The sentence was widely criticized within the legal system, because under Finnish law the maximum sentence for multiple counts of attempted manslaughter is 12 years. Lauri Lehtimaja, the Ombudsman of the Eduskunta gave a warning to the court judge about his misuse of the law. The Helsinki Court of Appeal lowered the sentence in December 1997 to be 11 years and 6 months of imprisonment. The documents of the case were classified for 40 years.
Another Finnish man convicted of spreading HIV knowingly through having unprotected sex with many women without disclosing his HIV serostatus
Serostatus
Serostatus is a term used to refer to the presence or absence of specific substances in the blood serum. Most commonly, this medical test is looking for specific antibodies in an effort to diagnose a particular disease....
was Aki Matti Hakkarainen . He was born in 1983 in Southern Finland
Finland
Finland , officially the Republic of Finland, is a Nordic country situated in the Fennoscandian region of Northern Europe. It is bordered by Sweden in the west, Norway in the north and Russia in the east, while Estonia lies to its south across the Gulf of Finland.Around 5.4 million people reside...
and has lived in Rovaniemi
Rovaniemi
Rovaniemi is a city and municipality of Finland. It is the administrative capital and commercial centre of Finland's northernmost province, Lapland. It is situated close to the Arctic Circle and is between the hills of Ounasvaara and Korkalovaara, at the confluence of the Kemijoki River and its...
since 2002. He was also sentenced in 2005 to one year and nine months in prison for a similar crime. In August 2007, Hakkarainen was arrested by Rovaniemi police after being reported by a young woman who said she had contracted HIV from Hakkarainen during unprotected sex. On 5 October 2007, the police published the name and picture of Hakkarainen in newspapers in an effort to reach every women who had had sexual intercourse
Sexual intercourse
Sexual intercourse, also known as copulation or coitus, commonly refers to the act in which a male's penis enters a female's vagina for the purposes of sexual pleasure or reproduction. The entities may be of opposite sexes, or they may be hermaphroditic, as is the case with snails...
with Hakkaraien.
In court, Hakkarainen admitted that he was guilty of having unprotected sex with the women but denied trying to infect them with the virus. On 22 April 2008, the Rovaniemi court decided that Hakkarainen purposefully infected five women with HIV and in August 2008 Hakkarainen was found guilty of five counts of aggravated assault and 14 counts of attempted aggravated assault because he did not inform his sexual partners about his condition, he was sentenced to ten years imprisonment
Imprisonment
Imprisonment is a legal term.The book Termes de la Ley contains the following definition:This passage was approved by Atkin and Duke LJJ in Meering v Grahame White Aviation Co....
. He was also ordered to pay 45 000–55 000 euros compensation to the five women that contracted the virus.
New Zealand
New Zealands first case for criminal HIV transmission occurred in 1993, when a Kenyan man visiting New Zealand on a tourist visa, was sentenced to seven years in prison for infecting at least two women with hiv through unprotected sexual intercourse. The man, Peter Mwai, came to New Zealand police attention after a women reported she had contracted HIV after sleeping with him. Multiple women came forward saying they had unprotected sex with Peter who had not told them he had HIV, at least two of the women tested positive for HIV. Peter Mwai was charged under existing laws, for causing 'grevious body harm' and 'reckless endangerment'.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
Safe sex
Safe sex is sexual activity engaged in by people who have taken precautions to protect themselves against sexually transmitted diseases such as AIDS. It is also referred to as safer sex or protected sex, while unsafe or unprotected sex is sexual activity engaged in without precautions...
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.
Pending an investigation, a 40 year old bisexual man, is thought to have infected at least five younger gay men between 2008 and 2009.
Revelations came after one of the young gay men laid a formal complaint to the New Zealand police
New Zealand Police
The New Zealand Police is the national police force of New Zealand, responsible for enforcing criminal law, enhancing public safety, maintaining order and keeping the peace throughout New Zealand...
. A popular website www.gaynz.com approached the man regarding his practices. Sex venues have also shut their doors to what is being called a 'HIV predator'.
On 28 May 2009 police arrested the 40 year old man accused of infecting three men with the virus and attempting to infect a fourth.
The court on 16 June heard that two more people have come forward to lay formal complaints against the man, bringing the total so far to six. The eight new charges laid against the man include that he "with reckless disregard for the safety of others caused – or attempted to cause – grevious bodily harm to five males aged 17, 20, 24, 26, and 31, plus a female aged 19." He also now faces charges of "wilfully and without justification or excuse causing in a male aged 20 and a female aged 19 a disease, namely HIV."
The trial set for 2010 will not proceed as Glenn Mills, the Auckland man accused of knowingly exposing fourteen young people to HIV, has been found dead in his Mt Eden remand prison cell on 30 November 2009. Mills was due in court for a hearing regarding the progress of the case. In recent weeks he had made two unsuccessful applications to be released on bail. He has been on remand since the first of a series of charges were laid against him on 28 May 2009.
Russia
Infecting another individual with HIV is a criminal offense unless that individual knew about HIV infection beforehand and consented. http://www.consultant.ru/popular/ukrf/10_24.html#p1439United Kingdom
- For a full discussion of the issues raised in sexual transmission, see Consent (criminal law)
Transmission generally, may fall under ss18, 20, 23, 24 or 47 Offences against the Person Act 1861
Offences Against The Person Act 1861
The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
. As of 19 June 2006, there have been seven convictions for the sexual transmission of HIV in England and Wales under s.20 of the 1861 Act which, inter alia, criminalizes the reckless inflicting of grievous bodily harm
Grievous bodily harm
Grievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861....
. Of these, five were men accused of infecting female partners during sex, one was a man who pleaded guilty to infecting a male partner, and one (in Wales) was a woman who pleaded guilty to recklessly inflicting GBH on her 31-year-old lover.
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
Casual sex
Casual sex or hooking up refers to certain types of human sexual activity outside the context of a romantic relationship. The term is not always used consistently: some use it to refer to any extramarital sex, some use it to refer to sex in a casual relationship, whereas others reserve its use for...
. 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 convicted for passing on an HIV infection in the UK. The first, from Cardiff, was jailed for 2 years; 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.
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 demonstrate 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 aidsmap
Aidsmap
aidsmap, also known as the NAM aidsmap, is a website which summarizes HIV and AIDS news for a layman audience.-Name:"NAM" originally stood for "national AIDS manual" and referred to a 1987 compendium of all information about HIV published for non-scientists in England...
's 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.
Scotland
In February 2001 Stephen Kelly, an ex-prisoner and former IV drug user, was convicted of the ScotsScots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
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.
United States
Thirty-four states have prosecuted HIV positive individuals for not disclosing HIV status and exposing another person to HIV. A person's intent to infect their partner while engaging in sexual intercourseSexual intercourse
Sexual intercourse, also known as copulation or coitus, commonly refers to the act in which a male's penis enters a female's vagina for the purposes of sexual pleasure or reproduction. The entities may be of opposite sexes, or they may be hermaphroditic, as is the case with snails...
and failure to disclose his or her status is committing a crime. A person donating HIV infected organs, tissues, and blood can be prosecuted for transmission of the virus. Spitting or transmitting HIV infected bodily fluids is considered a criminal offense in some states, particularly where the target is a prison guard. Some states consider criminal transmission of HIV as a misdemeanor
Misdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
. These states have laws that prosecute individuals for criminal exposure of HIV: Alabama
Alabama
Alabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...
, Alaska
Alaska
Alaska is the largest state in the United States by area. It is situated in the northwest extremity of the North American continent, with Canada to the east, the Arctic Ocean to the north, and the Pacific Ocean to the west and south, with Russia further west across the Bering Strait...
, Arkansas
Arkansas
Arkansas is a state located in the southern region of the United States. Its name is an Algonquian name of the Quapaw Indians. Arkansas shares borders with six states , and its eastern border is largely defined by the Mississippi River...
, California, Colorado
Colorado
Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...
, Delaware
Delaware
Delaware is a U.S. state located on the Atlantic Coast in the Mid-Atlantic region of the United States. It is bordered to the south and west by Maryland, and to the north by Pennsylvania...
, Florida, Georgia
Georgia (U.S. state)
Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
, Idaho
Idaho
Idaho is a state in the Rocky Mountain area of the United States. The state's largest city and capital is Boise. Residents are called "Idahoans". Idaho was admitted to the Union on July 3, 1890, as the 43rd state....
, Illinois
Illinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...
, Indiana
Indiana
Indiana is a US state, admitted to the United States as the 19th on December 11, 1816. It is located in the Midwestern United States and Great Lakes Region. With 6,483,802 residents, the state is ranked 15th in population and 16th in population density. Indiana is ranked 38th in land area and is...
, Iowa
Iowa
Iowa is a state located in the Midwestern United States, an area often referred to as the "American Heartland". It derives its name from the Ioway people, one of the many American Indian tribes that occupied the state at the time of European exploration. Iowa was a part of the French colony of New...
, Kansas
Kansas
Kansas is a US state located in the Midwestern United States. It is named after the Kansas River which flows through it, which in turn was named after the Kansa Native American tribe, which inhabited the area. The tribe's name is often said to mean "people of the wind" or "people of the south...
, Kentucky
Kentucky
The Commonwealth of Kentucky is a state located in the East Central United States of America. As classified by the United States Census Bureau, Kentucky is a Southern state, more specifically in the East South Central region. Kentucky is one of four U.S. states constituted as a commonwealth...
, Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, Maryland
Maryland
Maryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
, Michigan
Michigan
Michigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....
, Mississippi
Mississippi
Mississippi is a U.S. state located in the Southern United States. Jackson is the state capital and largest city. The name of the state derives from the Mississippi River, which flows along its western boundary, whose name comes from the Ojibwe word misi-ziibi...
, Missouri
Missouri
Missouri is a US state located in the Midwestern United States, bordered by Iowa, Illinois, Kentucky, Tennessee, Arkansas, Oklahoma, Kansas and Nebraska. With a 2010 population of 5,988,927, Missouri is the 18th most populous state in the nation and the fifth most populous in the Midwest. It...
, Montana
Montana
Montana is a state in the Western United States. The western third of Montana contains numerous mountain ranges. Smaller, "island ranges" are found in the central third of the state, for a total of 77 named ranges of the Rocky Mountains. This geographical fact is reflected in the state's name,...
, Nevada
Nevada
Nevada is a state in the western, mountain west, and southwestern regions of the United States. With an area of and a population of about 2.7 million, it is the 7th-largest and 35th-most populous state. Over two-thirds of Nevada's people live in the Las Vegas metropolitan area, which contains its...
, New Jersey
New Jersey
New Jersey is a state in the Northeastern and Middle Atlantic regions of the United States. , its population was 8,791,894. It is bordered on the north and east by the state of New York, on the southeast and south by the Atlantic Ocean, on the west by Pennsylvania and on the southwest by Delaware...
, New York, North Dakota
North Dakota
North Dakota is a state located in the Midwestern region of the United States of America, along the Canadian border. The state is bordered by Canada to the north, Minnesota to the east, South Dakota to the south and Montana to the west. North Dakota is the 19th-largest state by area in the U.S....
, Ohio
Ohio
Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...
, Oklahoma
Oklahoma
Oklahoma is a state located in the South Central region of the United States of America. With an estimated 3,751,351 residents as of the 2010 census and a land area of 68,667 square miles , Oklahoma is the 28th most populous and 20th-largest state...
, Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
, South Carolina
South Carolina
South Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...
, South Dakota
South Dakota
South Dakota is a state located in the Midwestern region of the United States. It is named after the Lakota and Dakota Sioux American Indian tribes. Once a part of Dakota Territory, South Dakota became a state on November 2, 1889. The state has an area of and an estimated population of just over...
, Tennessee
Tennessee
Tennessee is a U.S. state located in the Southeastern United States. It has a population of 6,346,105, making it the nation's 17th-largest state by population, and covers , making it the 36th-largest by total land area...
, Texas, Utah
Utah
Utah is a state in the Western United States. It was the 45th state to join the Union, on January 4, 1896. Approximately 80% of Utah's 2,763,885 people live along the Wasatch Front, centering on Salt Lake City. This leaves vast expanses of the state nearly uninhabited, making the population the...
, Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
, and Washington.
In July 2010 the White House
White House
The White House is the official residence and principal workplace of the president of the United States. Located at 1600 Pennsylvania Avenue NW in Washington, D.C., the house was designed by Irish-born James Hoban, and built between 1792 and 1800 of white-painted Aquia sandstone in the Neoclassical...
announced a major change in its HIV/AIDS policy, a change informed by public health law research carried out by Scott Burris, professor of law at Temple University
Temple University
Temple University is a comprehensive public research university in Philadelphia, Pennsylvania, United States. Originally founded in 1884 by Dr. Russell Conwell, Temple University is among the nation's largest providers of professional education and prepares the largest body of professional...
and the director of the Public Health Law Research program. The official National HIV/AIDS Strategy for the United States concluded that “the continued existence and enforcement of these types of laws [criminalizing HIV infection] run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment.”
The administration strategy credits "The case against criminalization of HIV transmission", a piece by Burris and Edwin Cameron, a South African judge, in the Journal of the American Medical Association
American Medical Association
The American Medical Association , founded in 1847 and incorporated in 1897, is the largest association of medical doctors and medical students in the United States.-Scope and operations:...
in 2008. They wrote “The use of criminal law to address HIV infection is inappropriate except in rare cases in which a person acts with conscious intent to transmit HIV and does so.”
Consistent with the White House HIV/AIDS Strategy, there has been a growing movement to fight criminalization and HIV-specific criminal laws. In the fall of 2010, The Positive Justice Project, a campaign of the Center for HIV Law and Policy, was launched to combat HIV-related stigma and discrimination against people with HIV by the United States criminal justice system. A day-long launch meeting, held in New York, included more than 40 participants from legal, government, grant-making and community service organizations. The Positive Justice Project has since released a comprehensive manual of HIV-specific laws and prosecutions in the 50 states, District of Columbia, U.S. Territories, Federal government, and military.
On 23 September 2011 Congresswoman Barbara Lee
Barbara Lee
Barbara Jean Lee is the U.S. Representative for , serving since 1998. She is a member of the Democratic Party. She is the first woman to represent that district. Lee was the Chair of the Congressional Black Caucus and was the Co-Chair of the Congressional Progressive Caucus...
(D-CA) introduced H.R. 3053: The Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act or the REPEAL HIV Discrimination Act. The REPEAL HIV Discrimination Act calls for review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses. It is the first piece of federal legislation to take on the issue of HIV criminalization, and provides incentives for states to reconsider laws and practices that target people with HIV for consensual sex and conduct that poses no real risk of HIV transmission.
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
- OSI 10 Reasons to Oppose Criminalization of HIV Exposure or Transmission;
- 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;
- Warburton, Damian (2004) 'A Critical Review of English Law in Respect of Criminalising Blameworthy Behaviour by HIV+ Individuals' Journal of Criminal Law (2004), 55;
- 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; http://www.blackwell-synergy.com/doi/full/10.1111/j.1468-2230.2005.00531.x?cookieSet=1
- 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) http://www.aidslaw.ca/Maincontent/otherdocs/Newsletter/vol10no22005/crimiHIV.htm
- 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
External links
- HIV and the criminal law (International resource from NAM)
- Criminal HIV Transmission Research Project Tops 100 Online Profiles
- HIV-Positive Spitter Sentenced to 13 Years
- Information concerning a number of European countries
- Information concerning England and Wales
- More information concerning England and Wales
- Canadian HIV/AIDS Legal Network
- HIV & AIDS Legal Clinic (Ontario)Canada
- http://www.hivlawandpolicy.org/public/initiatives/positivejusticeproject
- http://www.aidsmap.com/Transmission-of-HIV-as-a-criminal-offence/page/1497494/