What are the real implications of recent convictions for
reckless transmission on the lives of people living with HIV? Amanda Elliot
reports
It is hard to imagine how a decision made by three ageing, be-wigged men in
an over-polished room at the Court of Appeal could possibly influence what
you do in the bedroom, sauna or even the backroom. But a Court of Appeal judgment
handed down in the Konzani case in March may have done precisely that.
Feston Konzani was jailed for 10 years in 2004 for infecting three women with
HIV. His lawyers appealed, arguing Konzani did not have a ‘guilty mind’
when he failed to disclose to the women. They said he honestly believed the
women had consented to the risk of catching HIV by consenting to unprotected
sexual intercourse and all the risks that potentially entails.
But the Court of Appeal firmly rejected this argument, saying the guilt of
Konzani’s mind was irrelevant, because the women never consented to
the specific risk of contracting “a potentially fatal disease”
like HIV. With this ruling, the judges heavily tipped the balance of responsibility
for other people’s sexual health firmly towards people living with HIV.
After the judgment was handed down, emails started frantically flying around
the HIV sector. Did this mean people living with HIV now had to disclose with
every new sexual partner? Did the judiciary - let alone the jury - really
understand HIV and the true risk of transmission? Did using condoms avoid
the necessity to disclose your HIV status? And, was this a carte-blanche for
disgruntled ex-lovers to get their own back for wrongs entirely un-related
to HIV?
Below, we set out the main issues for people living with HIV and the views
of HIV organisations who have followed this case closely. But PN and UKC are
also keen to hear what you think. So, after reading this article, we
gave you an opportunity to have your say.
The results of that questionnaire are now available here.
How did we get here?
There is still no specific law that criminalises transmission of HIV. All
the recent convictions were prosecuted under the Offences against the Person
Act (1861) - an old law never designed to prosecute people for passing on
infections. Until fairly recently, the Act was only ever used to prosecute ‘visible’ grievous bodily harm. But the successful prosecution
of stalkers under this Act opened it up to far wider interpretation by the
courts, including HIV transmission.
Since 2001, there have been four convictions of people living with HIV in
the UK. The first was Stephen Kelly, an intravenous drug user, jailed under
Scottish law for ‘reckless behaviour’. Then, in rapid succession,
followed the prosecutions of of refugee Mohammed Dica and asylum seekers Koussai
Adaye and Feston Konzani. These men were prosecuted for reckless transmission
of HIV under section 20 of the Act. Dica’s conviction was quashed by
the Court of Appeal and his re-trial was stopped. But after two trials and
an appeal, he was jailed at the Old Bailey for four and a half years. Adaye
pleaded guilty and Konzani’s case went to appeal. And, for the first
time, this summer a white gay man will stand trial for the same offence.
Intentional and reckless - what’s the difference?
The Offences Against the Person Act allows for two different kinds of GBH.
Under section 18, the prosecution has to prove there was ‘intent’
to harm. But in all the English prosecutions, defendants were convicted under
section 20 - a lesser charge of GBH for which it is unnecessary to prove intent.
The Dica case clarified that section 20 could be used to prosecute ‘reckless’
transmission of HIV.
Daniel Monk, lecturer in law at Birckbeck College, explains: “For reckless
transmission of HIV (under section 20) all they have prove is that you knew
there was a risk of transmission; it was not what you wanted, but you took
that risk anyway.”
In light of the judgment, Bernard Forbes now thinks the time has come for
UKC to revise its position on intentional transmission.
He said: “UKC’s support for prosecution of people who intentionally
transmit HIV infection was arrived at a time when we were involved in protracted
debates with the Home Office on a new Offences Against the Person Act.
“But as the recent Appeal Court judgment makes clear, intention can
be bounced down to reckless, so our position is not necessarily of any use.”
Do people with HIV now have to disclose with every new sexual partner?
This is perhaps the most critical question for people living with HIV.
According to Dr Catherine Dodds, of Sigma Research, disclosure of your HIV
status with every new sexual partner is the only way to absolutely guarantee
you are not prosecuted for HIV transmission.
The Dica and Konzani cases hinged on the issue of consent. The law, as it
stands, enables HIV positive people accused of reckless transmission to defend
themselves by arguing their sexual partners consented to the risk. But according
to the Court of Appeal ruling on the Konzani case, this consent has to be “informed”. They judged it was not a defence to argue that a sexual
partner had consented to the risk of catching HIV by consenting to unprotected
intercourse (and all risks that may entail). The person infected has to consent
specifically to the risk of catching HIV - in other words - the only defence
is explicitly disclosing your status.
Can condoms protect us from the strong arm of the law?
Daniel Monk says the law is still unclear on whether people living with HIV
can avoid the risk of prosecution if they just use a condom instead of disclosing.
He said the Konzani judgment failed to distinguish between protected or unprotected
sex. Obviously, using a condom greatly cuts the risk of transmission. But
if transmission takes place, the fact you used a condom could also be seen
by the jury as evidence that you were fully aware of the risk of passing on
HIV.
“It is of course very dangerous to advise people that using condoms
somehow makes them more at risk of prosecution.
“But at the same time advising them that using condom means they do
not need to disclose is a conclusion that can not be taken from the case.
Active deceit
Both THT and NAT support prosecutions of intentional transmission, but not
for reckless transmission. THT has also called for a debate around another
concept: “active deceit” where someone actively lies about their
HIV status and goes on to infect that person.
THT’s Lisa Power said: “There is a serious difference between
someone failing to disclose their HIV status and someone actively lying and
saying they are HIV negative. “This deception denies the other person
the chance to make an informed choice.”
But Daniel Monk believes support for prosecutions involving ‘active
deceit’ and even prosecutions for intentional transmission, are bad
news as they simply reinforce the association of crime and HIV in people’s
mind.
He said: “Arguing for intentional transmission is dangerous as it is
hard to prove, so most cases will be bounced down to the lesser offence of
reckless transmission by the time they reach court.
“Relationships are risky. People lie and cheat and do many morally reprehensible
things in relationships. But we would never contemplate prosecuting them for
it. I feel people who take this stand are confusing morality with the law.
It may be immoral but it should not be a crime.”
Why HIV, why now?
The Konzani judgment effectively gives HIV special status in law compared
with every other sexually transmitted infection.
In their judgment, the Appeal Court judges emphasised a critical distinction
between running the risk of potential problems arising from unprotected sex
(like unwanted pregnancy; syphilis or chlamydia), and the giving informed
consent to the risk of infection with a fatal disease like HIV.
Untreated syphilis can be fatal and untreated chlamydia can lead to infertility.
But no-one is remotely suggesting transmission of these STI’s should
be prosecuted. So why HIV?
Daniel Monk thinks even supposedly well-educated people like lawyers are still
woefully ignorant about the real risks of transmission; the effectiveness
of HIV treatments and huge difficulties surrounding disclosure for people
living HIV.
“In their mind HIV still equals death,” he said.
Michelle Reed, of George House Trust (GHT), asks: “Is there any other
disease that would carry this level of sentence, or is this just further evidence
of the public’s abiding hatred and fear of anything to do with HIV and
Aids?”
Whose responsibility?
The most unfortunate aspect of the Konzani judgment is that it appears to
absolve all HIV negative people of responsibility for their own sexual health
when it comes to HIV.
Peter Smit, chair of the Netherlands Association of People Living with HIV,
says lawyers should argue that government-funded public health campaigns push
shared responsibility for sexual health, so people living with HIV can reasonably
expect their lovers to take at least half of the responsibility for their
own sexual health.
Beatrice Nabulya, of Africans Getting Involved, said: “I agree HIV positive
people should adopt and sustain safer sex, but that responsibility should
not rest solely with them. We should be encouraging shared responsibility.”
Will convictions cut HIV transmission rates?
It seems logical that, if you are officially ignorant of your HIV status,
you can avoid prosecution, because you can’t disclose something you
don’t know about.
Most in the HIV sector have strongly argued that this fact will damage HIV
prevention campaigns by discouraging people from coming forward for testing.
But THT’s Lisa Power says we should be wary of using over-using this
argument.
“My understanding is that testing rates increased after the Stephen
Kelly conviction. So it is difficult to win this argument without providing
hard evidence to back it up. It leaves us wide open.”
For Dr Catherine Dodds there is another big problem:
“How will voluntary agencies and clinics be able to deliver treatment,
care and support to people with HIV when those people are no longer sure if
they can be honest about the kinds of risks they take? How will agencies like
Sigma Research be able to continue to investigate their needs?”
In the Konzani case, a doctor asked on one of the complainants if he could
break medical confidentiality by informing the police about her HIV status.
This has raised real concerns that people living with HIV may no longer be
able to entirely trust HIV doctors and GPs who will come under increasing
pressure to divulge the contents of patients’ notes to the police.
Behind the scenes
The Crown Prosecution Service (CPS) is currently drawing up guidelines for
prosecutors involved with cases of transmission of HIV.
The National Aids Trust, THT and the African HIV Policy Network have twice
met the CPS in a bid to persuade them to restrict prosecutions, or at least
influence the guidelines. But to date, there is little sign the CPS has changed
its position.
It is also notable that none of the organisations currently speaking to the
CPS are run by people living with HIV, raising doubts about whether the voice
of people living with HIV is really being heard.
Some believe the CPS is delighted with the outcome of recent prosecutions
and the publicity surrounding them. When Dica was first convicted they took
the unusual step of issuing a press release. Dr Catherine Dodds of Sigma Research
said: “The Crown Prosecution Service is simply using HIV to increase
its profile with an ignorant public.”
And there seems to be no let up in their willingness to prosecute. This summer
will see the first ever trial involving a gay man in London and others are
in preparation.
Some fear the meetings somehow ‘dignify’ the actions of the CPS
who will now be able to say that they have ‘consulted’ with HIV
organisations and HIV positive people’.
Meanwhile, at a European level, a number a number HIV experts have got together
to collect hard evidence on the impact of criminalisation on HIV rates and
to try and get countries to follow UNAIDS guidelines which do not support
prosecutions.
One member of this European Union HIV Group, Peter Smit thinks there is still
some legal scope to take the Dica and Konzani case to higher courts (see box).
But Dr Catherine Dodds says action is needed now. “Voluntary agencies
with their hands in the pockets of the NHS need to recognise that their priority
lies in promoting the rights and interests of people living with HIV. In the
last 100 years no one has been convicted for transmitting any other disease.”
Opposite, we have invited key organisations to share their views about
what the judgments mean and what should be done. And on page 25 you get the
chance to have your say.
WHAT THE EXPERTS THINK
Dr
Catherine Dodds, research fellow, Sigma Research
My understanding of the Court of Appeal's judgment in the Konzani case is
that the only way anyone living with HIV can ensure they will not be liable
to prosecution for transmission is to disclose their HIV status to every new
sexual partner before they have sex. You may think always using condoms is
enough, but the judge in the recent Dica retrial told the jury that to determine
guilt, they would have to be convinced Mohammed Dica acted recklessly on each
and every occasion of sex, whether protected or not. The jury found Dica guilty.
So, as I see it, the best way for people living with HIV to ensure against
prosecution for transmission is to provide cast iron evidence they have disclosed
their HIV status before having sex, including oral sex and intercourse with
a condom. Throwing people in jail is no way to manage an epidemic as complex
and stigmatised as HIV. Where is this leading and how are we all going to
do to resist this? Voluntary agencies with their hands in the pockets of the
NHS need to recognise their priority lies in promoting the rights and interests
of people living with HIV. In the last 100 years no one has been convicted
for transmitting any other disease. Why HIV? Why now? We need answers –
we need action.
Rhon Reynolds, policy officer for the African HIV Policy Network
We see no benefit in criminalising intentional or reckless transmission of
HIV. The available evidence supports this. Recent convictions are particularly
problematic for African communities who already face a deluge of negative
public policy that affects how they live their lives. Media tirades range
from ‘out of control immigration’ to uncontrolled fits of indignation
against ‘HIV predators’. Disclosure of HIV status is hard for
many living with HIV, but particularly difficult for many Africans living
in the UK, a community especially disadvantaged by HIV infection. The convictions
to date have disproportionately affected African migrants who are already
socially, culturally and/or economically marginalized. In the UK, the spectre
and reality of institutional and state racism is nowhere greater evidenced
than in the criminal justice system. These convictions may act as a disincentive
to test; it is well documented that those affected within African communities
present with advanced disease. Risky behaviour by positive people is not the
norm. Most take extraordinary steps to ensure they don’t infect their
partners, and do so without a whole lot of support. What we need are massive
public health interventions to support positive people to stay safe in their
relationships.
Lisa Power, head of policy and public affairs
Terrence Higgins Trust
We are deeply concerned by the recent prosecutions of people for reckless
transmission of HIV and are working with other HIV organisations and people
with HIV to encourage a national debate about using criminal law to regulate
public health.
We also need a public debate on the rights and responsibilities of all parties
in reducing onward transmission. We feel prosecutions should be restricted
to those for intentional transmission only. CPS guidelines should also restrict
prosecutions for the transmission of serious communicable diseases, including
HIV. We want the judiciary to understand that prison is an inappropriate sentence
for someone with HIV if the purpose of prosecution is the reduction of onward
transmission.
HIV prejudice and discrimination are also being exacerbated by the language
used and assumptions made by legal authorities and the media during these
criminal proceedings.
We need to improve the understanding of the judiciary, the police and the
CPS of the realities of living with HIV and how it is, and is not, transmitted.
Beatrice Nabulya, Africans Getting Involved
Promoting HIV testing is supposed to help people lead healthier lives by allowing
them to find out their diagnosis sooner rather than later. It was never meant
to involve punishment within the criminal justice system or discrimination
within society at large. Isolating positive people as personally responsible
and punishable for criminal acts has grave consequences. The ruling presents
one party as the victim, relieving them of any individual responsibility.
This encourages complacency, worsening the UK sexual health crisis. These
convictions fuel the stigma associated with HIV, especially among already
excluded minorities. African men in particular are invisible on the HIV scene
and this will drive them even further underground. How knowledgeable are legislators
about especially about HIV transmission and stigma? Are decisions being made
out of fear? Positive people are burdened by the issue of disclosure because
of this kind of ignorance. They need support to adopt and sustain safer sex
but this shouldn’t mean responsibility for safer sex rests solely with
them. Efforts should concentrate on fighting HIV stigma which hinders disclosure
and testing through education for all. Only then can we begin to see a reduction
in infection rates.
Michelle Reid, chief executive of the George House Trust
We have consistently opposed the criminalisation of HIV transmission and believe
that the only way to fight the epidemic is for everyone, positive or negative,
to take responsibility for their own sexual health.
These court decisions mean people with HIV now have to live with the added
fear of prosecution.
Putting people in prison for passing on a virus does absolutely nothing to
stop new infections. It won’t stop the spread of HIV. In fact, it may
mean more new infections because fewer people will want to come forward for
testing. Sex between consenting adults is legal. These cases only reached
court because the disease involved is HIV. Is there any other disease that
would carry this level of sentence, or is this just further evidence of the
public’s abiding hatred and fear of anything to do with HIV and Aids?
I’m convinced that we’re witnessing the first few steps of a disastrous
journey that will eventually see criminalisation of HIV positive people. The
real crime here is the continuing discrimination against people living with
HIV. GHT will continue to campaign against these pointless prosecutions. We
urge you to do the same.
Bernard
Forbes, chairman of the UKC
It used to take ‘two to tango’ and it was nearly always ‘better
to know’ you were HIV positive. Now it’s clear: responsibility
for safer sex has shifted entirely to us. But if you don’t know you
can’t tell.
UKC took a position on criminalisation long ago when then Home Office was
preparing to replace the 1861 law. At that time we believed it was right to
prosecute people for using HIV as a weapon and intentionally infecting someone.
It suited government not to update the law, so we still have the old one which
allows a person to be charged with murder but convicted of manslaughter; to
be charged with GBH ‘with intent’ but convicted of malicious wounding.
Police and CPS prosecute people for transmission ‘with intent’
by building a case that prooves the defendant lied and deceived. The courts
then convicts on ‘recklessness’ because all it takes is for the
jury to make a moral judgment about who is ‘nasty’ and who is
‘innocent’ and the fact there was no opportunity for the ‘victims’
to consent to the risk of living with the consequences of HIV.
These judgments apply to us all: reckless transmission of HIV is now a crime,
whether condoms were used or whether or not ‘A’ deliberately set
out to infect ‘B’. And the only defence available is prior disclosure.
Jailing people for reckless transmission will not cut onward transmission.
And the most infectious people are those that do “need to know”
so they can be treated and take half the responsibility for safer sex. But
is it now really better to know?
Help UKC formulate a new position on this - tell us what you think: are we
all criminals or do we have some rights in this matter too?
Yusef Azad, director of policy for National Aids Trust
NAT opposes criminal prosecution for reckless transmission but does not oppose
prosecution for cases of intentional transmission (though we think such prosecutions
would be rare). There is no evidence prosecuting reckless transmission will
reduce high risk behaviour or the number of those infected. There are good
grounds for believing
it will increase levels of HIV-related stigma and prejudice, and undermine
the confidential and trusting relationships necessary between clinicians and
positive people. Criminalisation will only reinforce the belief that safer
sex is ‘someone else’s responsibility, not mine’.
These prosecutions have demonstrated how difficult and dangerous it is to
bring the law into consensual sexual relationships. No account is taken of
the complexities and challenges of disclosing positive status. The result
will inevitably be unjust outcomes for already marginalised people. All three
men convicted to date in England have been black African migrants. Advice
is urgently needed for positive people, for the police, for clinicians and
sexual health advisers. We must also challenge the government about why it
has remained silent while the courts ignore its policy, stated in 1998, not
to criminalise reckless HIV transmission.
Peter Smit, chair of HIV Association of the Netherlands, and member
of the EU HIV law group
Lack of HIV-specific provisions in the 1861 Offences Against the Person Act
provides defendants and their barristers with an important legal defence that
seems to have been missed. It comes from article 7 of the European Treaty
on Human Rights, incorporated into UK law by the 1998 Human Rights Act. This
states there can be no punishment applied to a defendant except for behaviour
clearly stipulated as criminally liable, as laid down in explicit norms in
law. The use of a rather old law for a wholly different category of behaviour
is an ideal circumstance to test this internationally acknowledged principle
of foreseeability in law. If in law exact positions and rights become unclear,
as seems to be the case with the contradictory Konzani and Dica rulings, then
there is an even better reason to use this defence. Further appeals using
this defence would enable the defendants to submit the case in this light
to the House of Lords, and failing their recognition, to the European Court
of Human Rights. It could also be argued that government funded public health
campaigns have always stressed equal responsibility for safer sex to everybody.
So people with HIV may expect an equal responsibility for safer sex. Appeals
along these lines would ensure that the legal issues would still be undecided
and that would give policymakers and Aids service organisations time to do
their advocacy work properly.
