Criminal, deliberate and reckless HIV transmission

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Criminal, deliberate and reckless HIV transmission

For the vast majority of people living with HIV, preventing others from becoming infected with the virus that they carry is a serious concern. HIV positive individuals are, after all, only too aware of just how difficult living with the illness can be, and few would wish it on anybody else.

This said, not all HIV+ people take the precautions that they perhaps should. Scare stories of people 'deliberately' or 'recklessly' transmitting HIV to others have appeared in the media since the epidemic first began, and some of the individuals concerned have even been criminally charged and imprisoned. But while at first thought it might seem obvious and right to prosecute someone for carelessly or purposely infecting another with an ultimately fatal virus, on further reflection the idea can become less straight forward. So what are the issues that must be addressed when prosecuting someone for transmitting HIV? Is it right to try and criminalise them? And what can past cases teach us?

Deliberate, Reckless or Accidental?

Before looking at the complexities of prosecuting people for infecting others with HIV, it is first necessary to understand the different types of transmission that can take place. The definitions below are based on general categories and are not specific to any particular country or legal system.

Deliberate (or 'Intentional')

Most countries would consider this to be the most serious offence that can be committed. Some cases of deliberate transmission have involved individuals (both HIV+ and HIV-) who have used needles or other implements to intentionally infect others with HIV. Others have been based on HIV+ people who have had sex with the primary purpose of transmitting the virus to their partner.

Deliberate transmission also sometimes takes place when a negative partner has an active desire to become infected with HIV (a practice sometimes referred to as 'sexual thrill seeking' or 'bug chasing'). This is unlikely to lead to prosecution however as both parties consent.

Reckless

This is where HIV is passed on through a careless rather than deliberate act. If for example a person who knows they have HIV has unprotected sex with a negative person and DOES NOT inform them of the risk involved, this could be classed as reckless transmission in court. "Reckless' here implies that transmission did take place, but that this happened as part of the pursuit of sexual gratification rather than because the HIV+ person actually wanted to give their partner HIV (HIV is of course not 'automatically' transmitted every time someone has unprotected sex.)

Accidental

This is the most common way that HIV is passed on. A person is generally said to have accidentally transmitted HIV if:

They were not diagnosed or were unaware that they had the virus, and therefore did not feel the need to take measures to protect their partner.

They were aware of their HIV+ status and they used a condom during sex, but the condom failed in some way.

The complexities of prosecution

Unfortunately deciding if someone has deliberately, recklessly or accidentally transmitted HIV is not as simple as the explanation above may suggest. The divisions between each of the three categories can be very blurred, and depend largely on individual interpretation. Even after a decision has been made, a court may still have a tough time deciding whether to find someone guilty or not. Some of the most problematic issues include:

Proof

It might appear that proof is a straightforward issue, but proving that someone has passed on HIV can be exceedingly difficult.

Firstly it needs to be proven that the accused (let's call them H+) was definitely the source of the accuser's (H-) HIV. This is normally done by comparing the DNA of the virus that H+ and H- are infected with (using a process called pylogenetics - see the D. Schmidt case study below). If they are the same (or very similar), then it is very likely that H+ caused H-'s infection. If they are different then it means H- definitely did not acquire HIV from H+, and the case would be thrown out.

Secondly, if the DNA matches, it needs to be proven that H+ definitely caused H- infection and not the other way round. Sometimes this can be demonstrated by how advanced each person's illness is, but this isn't always possible. The only definitive proof would be a negative test on H- that was performed after H+ received a positive test.

Finally, in cases where intentional or deliberate transmission needs to be proven, evidence needs to be found that H+ actively intended and wanted to infect H-. Unless there is physical proof of this (e.g. a syringe filled with HIV+ material, a note, or a written confession), it can often just be one person's word against another. With cases of sexual transmission, this can be virtually impossible as the very nature of HIV transmission via sex means there are no witnesses: what happens in the bedroom is essentially private. If no evidence of deliberate transmission could be found therefore, a lesser charge of reckless transmission would probably be chosen. Whether someone can be legally charged with reckless (as opposed to deliberate) transmission depends entirely on an individual country's laws and courts.

Consent and Disclosure

Almost all criminal convictions involving sexual transmission are brought about because a positive person has failed to inform their negative partner about their status. In some cases, H+ may have actively lied in response to a direct question in order to persuade their partner to have unprotected sex. In others, H+ may simply not have mentioned their condition. A prosecution involving deception might carry a more severe penalty than a simple failure to disclose, because it affects a person's choice to consent to sex.

Consent is an important issue in all criminal prosecutions. If H+ had simply not mentioned they are HIV+, then the prosecution would probably argue that H+ has been reckless by not disclosing their status and not informing H- of the risks involved in intercourse. However, the defence could well counter this by saying that the balance of responsibility is 50:50, and that by agreeing to having unprotected sex, H- effectively consented to all the risks involved, including that of HIV. This argument was used in the appeal trial of Mohammed Dica, the first person in England to be accused of recklessly transmitting HIV (see below).

If H+ had actively deceived H-, and told them they were negative when they were not, then the prosecution could quite easily argue that the 50:50 balance of responsibility had been taken away, making H+ more liable to prosecution.

The argument that non-disclosure equals guilt could potentially even be applied if H+ had used a condom. Some say that sex with a condom, but without disclosure of status should also count as reckless transmission. This is because condoms are not always 100% effective. If a condom fails therefore, and an individual becomes infected with HIV, there is potential for that person to accuse their partner of being 'reckless' for having withheld information that may have influenced their decision to have sex.

Assumed Status and Trust

Disclosing one's HIV status to an intimate partner can be extremely difficult, and the fear of rejection and stigma can often prevent people from being honest, particularly if they are worried about friends, colleagues or members of their family finding out. Likewise, asking about someone else's status can be hard because of the risk of offending them, or 'spoiling the moment'. In such circumstances, many people choose to make assumptions instead. Ironically, this is particularly true in high-prevalence areas or among high-risk groups where everyone has heard of HIV. A positive person who engages in casual sex with a negative person may, for example, assume that by failing to suggest the use of a condom or failing to ask about status, the negative partner is either already positive themselves or does not care about the risks of HIV. Likewise, a negative person may assume that by not using a condom and not talking about status, their partner must be negative too.

"If she was HIV+, she'd ask me to use a condom..."

"He's not using a condom, so he must be HIV+, like me"

There is also the issue of trust. Most would agree that a relationship can only work if both partners have faith in each other to be honest and truthful. But when one partner consistently lies or deceives the other, where does the blame lie? With the person who has been deceptive, or with the person who has been naive enough to trust them?

Criminal Conviction: Right or Wrong?

Given the ambiguities and difficulties outlined above, it is clear that any form of legislation on the issue needs to be clear about what forms of transmission are and are not covered. There are generally three broad schools of thought on how this should work:

No criminalisation at all

A few people argue that criminal charges should never be brought for transmitting HIV, no matter what the circumstances. HIV is a virus that acts under its own rules of nature, they say, and therefore the laws of man should not apply. Banning any prosecution for HIV transmission would therefore make the whole issue a lot simpler. However, in cases of deliberate transmission, where someone has actively infected another with the virus, this rule could pose a serious threat to public health by leaving a clearly dangerous individual immune to prosecution.

Criminalisation for deliberate transmission only

Generally this is the sort of policy that most AIDS organisations, public health officials and civil rights groups favour1, 2, 3. They argue that by restricting the law to cases of intentional rather than reckless transmission, it would greatly reduce the confusion amongst HIV+ people over what is legal and what is not. It would also cut down on the number of HIV+ people being criminalised unfairly, while allowing those who truly deserve prosecution to be brought to trial. In cases of reckless or accidental transmission, most agree that education and counselling is a more effective option than imprisonment or fines.

Criminalisation for all forms of transmission

As the list of trials at the end of this page demonstrates, many states and countries now allow the prosecution of HIV positive people for all forms of transmission, including reckless and accidental. Some have specific laws permitting this, others use more general criminal laws to obtain a conviction. This growing trend is of particular concern for many organisations trying to advocate on behalf of HIV+ people around the world. Below is a short summary of some of their arguments for the exemption of accidental and reckless transmission from the law, and the counter arguments of those against such restrictions:

FOR

AGAINST

Prosecuting positive people for reckless transmission could leave many afraid to be tested, believing that if they do find out their status, they could be liable to all sorts of criminal charges.

The numbers of people that are identified as HIV+ through voluntary testing is so few, that such concerns are likely to have little effect on the numbers being tested

Criminalising HIV+ people increases stigma, particularly when positive people being brought to trial are demonised by the press.

Criminals should be brought to justice regardless of their health status or background.

The more cases that come to court, the more people will believe that the responsibility for having safe sex should lie solely with positive people. This could in turn lead to more incidences of unprotected intercourse, with people believing it to be a legal responsibility for their partner to disclose any infection. Safe sex should of course always be a shared concern.

The idea of "shared responsibility" is based on ideals that came about when HIV was still a 'gay' illness. With heterosexual relationships, it is not always a practical reality. Many women, even in the West, have little say over what happens in the bedroom and do not necessarily have the power to force their partners to wear a condom.

No other illnesses are treated with the same hysteria as HIV. With current treatments, HIV is more of a chronic condition than the fatal disease it once was. Courts often fail to recognise this. HIV is therefore not being singled out because it is any more dangerous than, say hepatitis C, but because it is such a stigmatised disease.

Other cases of people being prosecuted for transmitting diseases (such as herpes and syphilis) do exist, but they are less widely publicised. HIV may no longer be fatal in the short term, but it is still a highly unpleasant illness to live with, both physically and mentally.

The law should have no place in the bedroom. If it does, it enables lovers to use HIV transmission as a way of exacting revenge. In such cases, the original HIV+ partner would always be at a natural disadvantage.

Injustice is injustice, and no matter where it takes place, it should be addressed by the law.

Prosecutions can start a chain reaction. There is nothing to stop an HIV+ person accused of reckless transmission from in turn trying to prosecute the person that infected them, and so on. Such cases could cost thousands, or even millions.

No such case has yet occurred, and if any did, it is unlikely that such a chain would continue far before a trial became unjustifiable.

Prosecutions can often be shrouded in prejudice and racism. All three of the most high-profile cases that have occurred in the UK for example, were brought against positive black asylum seekers and refugees. A convincing case against a white haemophiliac several years earlier was however rejected on the grounds that they had nothing to charge him with.

Charges have been brought against white people in other countries. The reason that all the cases in the UK have been amongst immigrants is probably because they have the highest prevalence of HIV amongst heterosexuals in the UK .

What trials for Criminal Transmission have there been?

Criminal transmission trials have been held in many countries around the world, but most have occurred in the West. Below are some of the better-known trials to have taken place in recent years:

Pavlos Georgiou, March 1997 4: One of the first ever trials held for deliberate transmission, Gergiou was a Cypriot fisherman who infected his British lover, Janette Pink, during a holiday romance. After several years of trying, Ms Pink eventually managed to persuade the Cypriot courts to bring him to trial in 1997, and he was subsequently sentenced to 15 months in prison. The case coincided with a UK government announcement that the 1861 Offences against the Person Act was to be revised to specify that the deliberate (but not reckless) transmission of illnesses could be made a criminal offence punishable by anything up to a life sentence. The revisions were however never passed by parliament, and the act remained unchanged, allowing the first ever case of reckless transmission to be brought to court in 2003 (see 'Mohammed Dica' below).

Dr J. Schmidt, 1998 5: Schmidt was a doctor from Louisiana, USA, who was accused of infecting his lover, a nurse called Janice Trahan, by injecting her with HIV+ blood. Trahan alleged that Schmidt had injected her with the blood of one of his positive patients in an act of vengeance after she tried to end their relationship. DNA samples of the virus in Trahan's blood and that of the positive patient in question were found to be very similar, but Schmidt's defence team insisted that 'very similar' was not scientifically accurate enough. HIV rapidly mutates and changes its DNA structure once it enters another person's body meaning comparisons can be difficult. However, using a new technique called ' phylogenetics' (or 'evolutionary analysis'), scientists were able to determine that Schmidt's patient was extremely likely to have been the source of the virus found in Trahan. Schmidt was found guilty and sentenced to 50 years.

This was the first time that phylogenetics had been used in a criminal transmission trial, but it is now the standard way of determining the source of HIV infection in trials. Incidentally, phylogenetics was also used in the early 90s to determine the cause of infection of five patients treated by the HIV+ Florida dentist, Dr. Acer. Acer died before any criminal charges were brought, but following testing, he was found to be the source of all five infections.

, December 1998 6: The case is still considered to be one of the most shocking cases of intentional transmission ever brought to trial. was a medical technician from Illinois who was sentenced to life in prison after deliberately injecting his son with HIV tainted blood in an effort to kill him and avoid paying child support. He was found guilty after all other suggested sources for the boy's infection were ruled out. On one occasion allegedly told the boy's mother not to bother seeking child support because the child would not live beyond the age of five. On another, he told colleagues that he had "the power to destroy the world… I would inject them with something and they would never know what hit them."

Christophe Morat, June 2004 7: Morat was sentenced to six years in a French prison under legislation designed to be used in cases of poisoning (France has no specific anti-HIV laws). He was found guilty of failing to disclose his status to two women, Isabelle and Aurore, both of whom subsequently became HIV+. Aurore later committed suicide and Morat's appeal against his sentence was subsequently rejected. Isabelle is now a member of a major HIV action group known as Femmes Positives, whose mission is to get the French government to create a specific HIV transmission-related law that will give them the right to prosecute former lovers. The case, and the demands of Femmes Positives, has opened up a massive debate in France over whether HIV+ people should ever be divided into 'victims' and 'criminals' in the eyes of the law, or whether the conventional doctrine of 'shared responsibility' in contraception should remain.

Hans-Otto Schiemann, November 2004 8: A one-legged, 56-year-old German who lived in Thailand, Schiemann allegedly tried to infect nearly 100 Thai women during the 10 years he lived in the country. As Thailand deliberately has no laws that outlaw unprotected sex or its consequences, he was eventually sentenced to two months in jail for overstaying his visa, and was deported back to Germany. Schiemann was reported to have a pathological hatred of Thai women, and referred to them as 'witches' and 'monkeys', but claimed he had done nothing wrong.

E. Whitfield, December 2004 9: An African-American from Lacey in the USA, Whitfield was sentenced to an unprecedented 178 years in prison by a court in the state of Washington after exposing 17 women to HIV and infecting his wife and four others. He was found guilty on 17 counts of first-degree assault with sexual motivation, two counts of witness tampering and three counts of violating a court protection order. His conviction spawned a racist leafleting campaign in the state capital, Olympia, with flyers proclaiming "Don't Have Sex With Blacks; Avoid AIDS" delivered to more than 100 homes. Whitfield is one of 142 people to have been convicted of criminal HIV transmission in the US.

Mohammed Dica, March 2005 10: Kenyan-born with family in Somalia, Dica lived in Mitcham, SW London. In the first ever HIV transmission conviction in England and Wales, he was found guilty of reckless (rather than deliberate) biological Grievous Bodily Harm against two women and was sentenced to 8 years in prison in November 2003. However he appealed, claiming that he had not been allowed to give evidence that suggested the women had fully consented to the risks of unprotected sex with him. A retrial was ordered, but at the second hearing in November 2004, the jury failed to reach a verdict. The third hearing in March 2005 found him guilty once again and he was jailed for four and a half years.

The trial caused concern among many AIDS and Human Rights organisations in Britain, as UK Law Commission guidelines recommend that only cases of deliberate transmission ever be brought to trial. However, the prosecution believed it had a case, as Dica was alleged to have actively persuaded one of the women not to use condoms, even though he knew he was HIV+. He also led the other to believe he was HIV negative and a rich single lawyer, when in fact he was HIV positive, unemployed and married with children.

Other trials that have taken place in the UK since include those of Feston Kozani, Kouassi Adaye and o Matias, all of whom were found guilty of reckless rather than deliberate transmission.

Unidentified woman, May 2005 11: A mother from Hamilton in Canada was charged with criminal negligence causing bodily harm after refusing pre and post-natal care and ignoring advice that would have prevented her baby from acquiring HIV. Following the birth of a healthy baby in 2003, the woman became pregnant again in 2004 and then changed her health care provider. However she neglected to tell her new doctors of her positive status, meaning her baby did not receive essential medication after birth. Despite having not breast fed her first baby under her doctor's advice, she did breastfeed the second, leading to the baby testing positive in early 2005. This is currently the only known case of someone being prosecuted for vertical transmission.

Dalley, June 2005 12: Dalley, a New Zealander, was convicted of criminal nuisance after having unprotected sex with his girlfriend and failing to disclose his status. Unusually, his girlfriend remains HIV negative, but initially told Dalley's family she was positive. She later admitted she had lied, but charges were still brought due to the alleged mental stress and trauma she had suffered on discovering her boyfriend's status. The case is also unusual because of a second woman, who on hearing of the trial, tried to prosecute Dalley for having sex with her with a condom but without disclosure. She too remains HIV-. The second woman's case was thrown out after senior police legal advisors admitted that it pushed the boundaries of New Zealand law. Dalley was sentenced to 300 hours' community work, six months supervision and $1000 reparation to cover his girlfriend's counselling and other expenses.

Canadian Red Cross Society, June 2005 13: In the first case of an entire organisation being prosecuted for HIV transmission, the Canadian Red Cross was taken to court after more than 1,000 Canadian citizens acquired HIV from infected blood products in the late 1980s and early 1990s. The Red Cross had run the country's national blood donor scheme for decades before the scandal, but failed to properly implement HIV and hepatitis screening for a number of years after tests for the diseases became available. Originally accused of "distributing an adulterated drug", official charges were dropped after the organisation admitted they were guilty, issued a full apology and agreed to compensate the victims. As well as a $5,000 fine, they was asked to donate $1.5 million of money not sourced from public donations to fund scholarships for the children affected by the tragedy and to finance research into medical errors.

Bulgarian medics on trial in Libya; ongoing 14 : The Bulgarian medics trial began in 1998 after a number of children at the al-Fateh paediatric hospital in Benghazi in Libya were discovered to have AIDS and subsequently died. Hospital officials and parents accused a Bulgarian doctor, five Bulgarian nurses and a Palestinian doctor of having collaborated to deliberately infect the children. However, the foreign health workers' defence lawyer has insisted that the infections were caused by poor hygiene and the multiple use of contaminated syringes within the hospital. The case was initially dismissed by the Libyan Supreme Court for lack of evidence, but the prosecution refilled charges. At the second hearing in 2003, Prof. Luc Montaigner, the co-discover of the HIV virus, was called in to give an impartial expert opinion. He suggested that the tragedy had probably taken place due to negligence rather than deliberate intent, but despite his report, all seven medics were found guilty and sentenced to death. After appealing against the conviction on the grounds that false confessions had been extracted from two of the nurses by torture, the case was reopened, and a final judgement is now expected on 15 November 2005.

The trial has caused a major international incident between Bulgaria and Libya, with many saying it is an attempt to divert attention away from the poor conditions in Libya's state-run hospitals. Others have suggested that Libya is using the outcome of the case to pressurise Bulgaria into dropping the $300m worth of debt that it currently owes them. Angry relatives are however convinced of the medics' guilt, and have called for the death sentences to stand.

Conclusions

The criminalisation of people who have transmitted HIV is both a moral and a practical minefield. The very fact that the sentences received by the individuals listed above vary from a small fine to life in prison reflects just how difficult it can be to legislate and deliver a ruling on an issue where individual viewpoints, emotions, stigma and the good of public health are so inextricably mixed. No matter what legal system is in use, there is no easy "one size fits all" law that can make it any simpler either. Make the prosecution of people who have passed on HIV illegal altogether (as they have done in places such as Thailand) and you risk a public outcry by allowing people to get away with serious cases of deliberate and malicious transmission. Introduce specific laws, and you risk a cascade of litigation brought about by angry lovers, and thus an increase the number of people afraid to be tested. If any progress is to be made on the issue therefore, a very careful international examination of the benefits and pitfalls of criminalisation needs to take place.

What should ultimately be remembered however is that HIV is an infectious disease - every single person who is accused of sexually transmitting the virus by whatever means, will at some point have been the victim of a 'transmitter' themselves. People do not ask to become infected with HIV; they acquire it because replication and infection is the primary objective of any virus. The real criminal is perhaps not the human host therefore, but HIV itself.

AVERT.org has information about HIV transmission, and about the ways in which a person can and can't become infected. We also have information about HIV testing - which is the only way to know if someone is HIV+ or not. Information on ways in which HIV infection can be prevented can be found in our prevention section.

Author: Bonita de Boer

References

" Policy on the Use of Criminal Sanctions as a Response to the Transmission of HIV": AIDS Committee of Toronto

" Criminalisation of HIV Transmission: NAT Policy Update", National AIDS Trust, June 2005

" HIV: Criminal Intent,", Seattle Weekly, 1-7 December 2004

"Straw planning HIV verdict after Cyprus verdict", The Guardian, 1 st August 1997

"If I cannot have you", Night & Day, 12 th January 1997 & "Guilty Sequence", http://www.genomenewsnetwork.org/, 24 th January 2003

"Man injected son with HIV to save cash", The Guardian, 7 th December 1998

"Fighting Femmes" by Thorpe; POZ magazine, June 2005

" Thailand to deport German accused of spreading HIV", Reuters Foundation Alert Net, 19 th November 2005

"Serial HIV assault convict sentenced to 178 years in prison", The Associated Press, 22 December 2004

"HIV man guilty of infecting lover", BBC.co.uk, 4 th May 2005

"HIV mom is charged", The Toronto Sun, 28 th May 2005

"Unsafe sex - One woman's nightmare", http://www.stuff.co.nz/, 18 th June 2005 & "HIV positive man facing new charges", http://www.tvnz.co.nz/, 26 th November 2004

"Victims move judge to tears", Toronto Star, 1 st July 2005

"Nurses 'gave' kids AIDS", News24.com, 29 th March 2005

Other Sources

"Criminal Law, Public Health and HIV Transmission: A Policy Options Paper" UNAIDS, 2002

" The Role Of The Law In HIV and AIDS Policy", HIV and Development Programme, UNDP

HIV criminal law Policy project website

"Criminalising HIV Infection", by Chalmers; AIDS Treatment Update, December 2003

"HIV Transmission and the Criminal Law", by Dr Weait, p.4, African HIV Policy Network Newsletter, Issue 6 (Vol. 3 No. 1), Spring 2005

"Non-disclosure of HIV status and the Criminal Law" by Dr Weait, p. 10, Positive Women, April/May/June 2005 issue

Last updated August 25, 2005

http://www.avert.org/criminal-transmission.htm