Does the recent rash of prosecutions over HIV transmission make potential criminals of us all? asks Susan Cole
 illustration: rose hardy |
In April, 23-year-old Adam Musser was jailed for 25 years in Iowa USA, for failing to tell his sexual partner he was HIV positive. Rejecting pleas for leniency, Judge Robert Sosalla said the offence was “akin to attempted murder”. Musser’s partner tested negative for HIV.
While such an extreme ruling has yet to rock our courts, UK law is currently grappling with how to handle so-called ‘reckless’ HIV transmission. This ‘crime’, if that is what it is, rarely has witnesses, leaving juries to weigh up one person’s word against another.
England and Scotland have no specific laws for prosecuting HIV transmission in the criminal courts. The Government has proposed, but not yet acted on, making ‘deliberate’ (as opposed to reckless) transmission of serious disease a criminal offence. This means recent criminal prosecutions have had to rely on existing legislation and ‘case’ law. The first successful prosecution for HIV transmission in the UK was under Scottish law in 2001 when Stephen Kelley was imprisoned for five years for infecting his girlfriend, on the grounds of ‘reckless behaviour’.
Back in November, Mohammed Dica famously became the first person in England
to be jailed for ‘biological GBH’ under the 1861 Offences against
the Person Act after infecting two women with HIV. But last month, after the
furore subsided, the Court of Appeal ordered a re-trial, ruling that the jury
should have been allowed to hear evidence from Dica’s lawyers on the
issue of consent.
In January Koussai Adaye, an asylum seeker, was jailed for six years by Liverpool crown court after admitting recklessly infecting a woman with HIV. Adaye had never undergone an HIV test. And only this month, Feston Konzami was jailed for 10 years for infecting three women with the virus.
Media frenzy has accompanied all three cases and the tabloids have appeared particularly obsessed with the immigration status of each defendant.
According to Edwin J Bernard, editor of Aids Treatment Update, mainstream media coverage which painted defendants as ‘murderers’, and appellants as ‘dying victims’ had done no favours to people living with HIV. “Language is powerful and people not directly affected by HIV must have their opinions negatively impacted by the way the story was reported,” he said.
Michelle Reid, of the George House Trust, goes one step further: “The tabloid headlines have screamed hysteria from their front pages. It is this reaction which will discourage people from HIV testing procedures”.
Criminalisation of HIV transmission has also raised huge moral, ethical and medical questions for which the legal system seems to have few answers. Should a person with HIV always disclosure their status? Should consenting adults, engaged in sexual activity, be responsible for their own sexual health, regardless of their HIV status? Can infecting someone really be regarded as ‘assault’? Judges have so far only clarified that as long as there is consent to the risk of transmission, the defence of consent is available to people facing the charge of GBH with intent under the 1861 Act.
In a recent press release, the National Aids Trust said: ‘Criminalisation of sexual HIV transmission has potentially significant consequences on public health by hindering access to services, discouraging people from coming forward for testing and creating a false sense of security among people at risk of infection who are undiagnosed. It also undermines shared responsibility, to focus on individual blame.”
Lisa Power, head of policy at the Terrence Higgins Trust, points out that prosecutions in mainland Europe are often aimed at people from disadvantaged groups. “Those prosecuted are often people from ethnic minorities, sex workers or drug users. You seldom see cases against, so called upstanding citizens,” She said criminal cases were frightening many people living with the virus in the UK. “We get calls from people who are worried that if they break up a relationship, their ex-partners will use these cases against them in some way and that they could face prosecution.”
In a letter to The Times, Matthew Weait, law lecturer and former secretary of the Legal Services Group at THT, was unequivocal: “It is insufficient for complainants to assert their lack of responsibility because they did not know their partner to be HIV positive, or believed their partner to be free of infection. Each of us who is sexually active bears a moral and social responsibility to assume (if we do not know for certain) that both we, and those with whom we have sex, may be HIV positive, may be lied to, and to take appropriate precautions against transmission.”
The UKC took a harder line. After the first Dica trial, chair Bernard Forbes
wrote in a PN editorial: “The case may not do much to help people living
with HIV infection feel better about themselves, but we can’t keep on
defending non-disclosure. Disclosure may mean that more than a few people end
up saying ‘thanks but no thanks’ to the offer of your body.”
UNAIDS has long called for considered, reasoned approaches by law makers
in using criminal law to prevent HIV transmission. In a report launched at
the
last international Aids conference, Marika Fahlen said: “We must be careful
to avoid over-reaction based on misinformation and prejudice, and must not
resort too quickly to criminal prosecutions. Such situations can lead to a
miscarriage of justice and promote stigma and discrimination”. The
report recommended use of public health, rather than criminal law, to achieve
public
health goals and pointed out that ill-considered criminal laws would be of
little use in stemming the epidemic and could, in fact make matters worse.
Peter Chalmers, lecturer in law at Aberdeen University, author of an influential paper on HIV criminalisation on the Stephen Kelly case, sounds a more optimistic note. He does not expect the current trickle of prosecutions for HIV transmission to become a flood, or lead to scores of people dragging ex-lovers through the courts. “I think these cases will remain quite rare. Most by necessity involve multiple complainants. Successful prosecutions require evidence beyond the testimony of one just person.”
WHAT READERS THINK:Chris*, a 33 year old gay man living with HIV, said: “These cases completely infantilise the entire HIV negative population. On the tube you are bombarded with ads about HIV transmission. It’s ludicrous to assume people don’t realise that they are at risk of acquiring HIV if they have unprotected sex. Why can’t some people take responsibility for the consequences of their actions?” Raffaele, a 33-year-old man living with HIV, said: “There may be negative consequences from these cases, possibly increasing discrimination against people living with HIV. But someone with HIV has a responsibility to the other person. A lot of HIV positive people have unprotected sex, not to infect others but doing it without thinking. I think it shows a lack of respect for other people’s lives.” Mike, an HIV negative gay, man said he would like someone with HIV to disclose their status if they were going to have unprotected sex but not if they were using a condom. “That doesn’t mean that I would prosecute them if we had unprotected sex and I contracted HIV. As a gay man I realise there is always a risk of acquiring HIV every time you have unprotected sex. It’s my responsibility to protect myself.” * Name has been changed |
