HIV Crime Transmission is a deliberate or reckless infection in a person with human immunodeficiency virus (HIV). This is often combined, in law and in discussions, with criminal exposure to HIV, which requires no viral transmission and often, as in the case of spitting and biting, does not include a realistic mode of transmission. Some countries or jurisdictions, including some US territories, have strictly enacted laws to criminalize HIV transmission or exposure, charging those accused of the transmission of HIV crime . Others, including the UK, accused the defendant under existing law with crimes such as murder, fraud (Canada), murder, attempted murder, or assault.
Video Criminal transmission of HIV
Mode transmisi
Medical research has identified the following situations where HIV can be transmitted:
- Sexual transmission in which one person with HIV infection is engaged in unprotected sexual intercourse with another, thus transferring the virus;
- Blood and transfusion donors or other medical procedures involving biological materials such as blood, tissue, organs, or semen from an infected donor; HIV has been transmitted through kidney, liver, heart, pancreas, bone and skin transplants, all of which are organs containing high blood or vascular tissue (but not through bone marrow transplants, cornea, etc.), but the way This transmission, along with blood transfusion, has become scarce since the development of accurate HIV testing procedures;
- Unsterile needle/syringe use for medicinal use, recreation (including various medication gear), tattoos, body piercings, etc.;
- Transmission of pregnancy and postnatal (eg, breastfeeding).
Blood donor
France began testing blood products for HIV antibodies in June 1985, Canada in November 1985, and Switzerland in May 1986. Germany inconsistently tested plasma products between 1987 and 1993, as did Japan in 1985 and 1986. There were criminal investigations and prosecution of the people. found to be responsible for this delay (see Weinberg et al.). At least 20 countries now have plans to compensate for some individual classes, e.g. hemophilia, infected by blood transfusions and blood products that are contaminated with HIV.
Maps Criminal transmission of HIV
Legal situation
In many English-speaking countries and in most states that have signed the European Convention on Human Rights, consciously infecting others with HIV can lead to criminal prosecution.
In a 2004 survey of the last group, the Global Network of People Living with HIV/AIDS found that at least one prosecution has taken place in about half of these countries, and that in Finland, Sweden and Slovakia, about 0.5% up to 1% of all people reported living with HIV/AIDS have been prosecuted for suspected intentional or "negligent" HIV transmission. In many developing countries such as Thailand where the HIV/AIDS pandemic has been much more serious, the law on deliberate transmission criminalization is weak or nonexistent.
From a global perspective, the US and Canada are responsible for most of the reported prosecutions.
Australia
In Australia, regulations relating to HIV transmission are found in two sources, the Public Health Act and in criminal law.
New South Wales
The New South Wales Public Health Act (NSW) of 2010 provides under section 79 that a person with HIV should disclose their status to all sexual partners. According to article 79 (3) this is a defense, if the court is satisfied, that the defendant takes reasonable precautions to prevent transmission. In other Australian states, there is no special legislative requirement to disclose.
Interventions can range from counseling to restrictive orders, with incarceration as a last resort. If talking about the problem of practicing safe sex does not help, doctors may obtain Public Health to manage the behavior of HIV positive people. Only a small number of sex workers and clients receive Public Health interventions or 'management' interventions for potentially violating the law.
Under criminal law, a person with HIV is criminally liable for prosecution if they intentionally transmit the virus to their partner without informing them of their status. In the NSW the relevant offenses are separated into deliberate violations (Section 33 of the 1900 Criminal Code), and done carelessly (Section 35). The saddest definition of body hazards (GBH) now explicitly includes (in s4 â € <â € <(1) (c)) 'any serious body diseases'. This means that the suffering of miserable body damage refers to causing a person to suffer from a sad body illness. According to chapter 33, a person who intends to harm a serious injury to another person may be jailed for up to 25 years while under the 35th chapter who carelessly causes another person to be seriously injured could be jailed for up to 10 years and 14 years if in company. This can include causing someone infected with HIV. Someone is generally considered reckless when they realize that there is a risk that others may be caused by GBH as a result of their actions, but they still act.
Canada
Although Canadian federal legislation does not contain any HIV-specific laws, HIV transmission and exposure are otherwise prosecuted under general offense laws. R. v. Mabior, (2012) SCC 47 reflects the most recent decision of the Supreme Court of Canada that outlines criminal liability for nondisclosure serostatus. After being diagnosed with HIV in 2004, Clato Mabior underwent aggressive antiretroviral therapy and followed treatment while pursuing sexual intercourse with multiple partners between 2004-2006. Despite the use of intermittent condoms, HIV was never transmitted to their partners. In the end, the Court sentenced Mabior to six counts of aggravated sexual assault. Mabior's decision came fourteen years after R. v. Cuerrier (1998) 127 CCC (3d) 1 (SCC) where the defendant was charged with an aggravated assault for HIV sexual transmission under s268 of the Canadian Criminal Code. The Supreme Court of Canada found that the judge of the court had wrongly directed him and ordered a new trial on two counts of assault, but in May 1999, the British Columbia Attorney General announced that a new person trial would not take place. The Supreme Court ruling led to difficulties because although it only concerns non-disclosure of HIV-positive status in sexual situations, it unanimously dismisses the British authority of R Clarence, L'Heureux-Dubà © which states that any fraud may weaken the agreement for all types of attacks because the autonomy and physical integrity of the person has been violated. Therefore, since the Canadian legislature has refused to criminalize HIV transmission, the judiciary must deal with issues such as and when they arise. Presentation The subsequent law has determined that failure to disclose HIV-positive status, combined with the failure to use protective measures (condom use), is a fraudulent behavior sufficient to shift the "consensus" of sex into an aggravated sexual assault, because the other party has rejected the information necessary to provide informed consent correctly. The Court's vague justification for the disclosure of serostatus under circumstances that cause "significant risk to physical harm" remains a highly controversial issue after Cuerrier. Because Cuerrier does not clearly define "significant risk", the lower courts inconsistently criminalize the HIV-positive defendant based on various interpretations of the clause. For the most part, Mabior is a response to Cuerrier and an attempt to sharpen criteria. At Mabior, the Court found that "significant risks to body hazards are negated if (i) the defendant's viral load during intercourse is low, and (ii) condom protection is used." Many anti-criminalization groups argue that even this clarification is equally ambiguous without explicitly defining the threshold for low viral load.
On December 1, 2005, Jian Ghomeshi filed a report on the matter for the CBC. She asks if there is a legal obligation to disclose HIV status. He picked up the case of Johnson Aziga, who was diagnosed in 1996 but later suspected of having unprotected sex with at least 13 women. Aziga was charged with two counts of murder and 11 counts of aggravated sexual assault; the prosecutor claimed that he did not disclose his status. On April 4, 2009, Aziga was found guilty of two counts of first-degree murder and a smaller number. Current precedents in Canada are people with HIV, failing to disclose facts to their sexual partners, and not taking protective measures (such as condom use), guilty of aggravated sexual assaults such as R. v Cuerrier and subsequent cases. Aziga was convicted of first-degree murder because according to Canadian law, every death as a result of aggravated sexual harassment (two of the women who died of HIV infection received from sexual intercourse with Aziga) were automatically first-degree murders under section 231 of the Canadian Criminal Code.
Hamish Stewart, a University of Toronto law professor, has stated
- Non-disclosure is a form of fraud if it is the kind of thing a reasonable person expects to disclose... If the Crown can show that the defendant knows that he is imposing this type of risk of death on them, and is indifferent indifferent to risk, then that would probably be enough to fulfill the element of intent for killing.
Some Canadian courts have ruled that people who are not informed that sexual partners are HIV-positive can not really give consent to sex. As a result, Aziga's partner's death is automatically regarded as a murder, not a smaller murder charge. However, in Mabior, the Supreme Court rejected the view that consent will always be weakened by non-disclosure of HIV-positive status, replacing the rule that there will be no consent only if other than non-disclosure there is a realistic possibility of HIV transmission.
Finnish
The first case of criminal HIV infection in Finland is the case of Steven Thomas, a US citizen from New York, who was convicted in 1997 in Helsinki for deliberately infecting Finnish women with HIV during 1993-1996. In January 1997, Finnish police published a picture of Thomas in the newspaper and stated that Thomas might have infected dozens or even hundreds of Finnish women with HIV. Seventeen women said they had unprotected sexual contact with Thomas.
Thomas was sentenced to 14 years in prison in Helsinki on 10 July 1997 on 17 counts of attempted murder. Thomas was found to have infected five of 17 women with HIV, and was ordered to pay compensation of $ 63,000- $ 73,000 for each infected victim. The sentence is widely criticized in the legal system, because according to Finnish law, the maximum sentence for several attempted murders is 12 years. Lauri Lehtimaja, the Parliamentary Ombudsman warns the judge of the court about his misuse of the law. The Helsinki Appellate Court lowered the sentence in December 1997 to 11 years and 6 months in prison. The case documents were classified for 40 years.
In 2002, Steven Thomas was secretly freed and deported from Finland to an unknown location.
A Finnish man convicted of spreading HIV consciously through unprotected sex with many women is Aki Matti Hakkarainen. He was first convicted in 2005 and sentenced to one year and nine months in prison for attempted aggression. In August 2007, Hakkarainen was arrested by police Rovaniemi after a report from a young woman who said she had contracted HIV from Hakkarainen during unprotected sex. On October 5, 2007, police published Hakkarainen's name and photo in the newspaper in an attempt to reach out to all the women who had had sexual intercourse with her.
In court, Hakkarainen admitted having unprotected sex with women but denied trying to infect them with the virus. On April 22, 2008, the Rovaniemi court concluded that Hakkarainen deliberately infected five women with HIV, and in August 2008 he was found guilty of five counts of aggravated assault and 14 counts of aggravated assault. He was sentenced to ten years in prison. He was also ordered to pay 45,000-55,000 euros in compensation to five women infected with the virus.
German
In the Federal Republic of Germany on August 16, 2010, Nadja Benaissa of the German pop group No Angels admitted to having sex with several men when they learned of her HIV-positive status, and infected one of the few, who later took the case against her. He faces prison, but instead is given probation (2 years) and community service. Women's groups are angry over the possibility of a woman being accused of spreading HIV unnaturally. He denied any intention to infect, apologized profusely and said "When I was arrested, I realized that the way I handled the disease was wrong... I made a big mistake... It's impossible I want my partner to be infected. "He stated that he hid the infection to avoid hurting the band's success. Benaissa claims that she has been told by a doctor that the risk of transmitting the virus is "practically zero".
Libya
The HIV trials in Libya are also called 'Bulgarian nurse affairs', regarding trials, appeals and finally the release of six foreign medical workers accused of conspiracy to deliberately infect more than 400 children with HIV in 1998, causing epidemics at El-Fatih Children's Hospital in Benghazi, Libya.
The defendants, who were arrested in 1999, are a Palestinian medical apprentice and five Bulgarian nurses (often called "medical"). All medical personnel were severely tortured for months to gain recognition. The torture process is described in detail in the Notes from Hell, written by Nikolay Yordanov and one of the nurses, Valya Chervianashka. As a result, three medical officers signed the confession. They were first sentenced to death, had their cases handed over by Libya's supreme court, and were sentenced to death again, which was upheld by Libya's supreme court in early July 2007.
A Libyan government panel later changed their sentence to life imprisonment. The six were released following agreements reached with EU representatives on humanitarian issues. The EU does not justify a guilty verdict in Libya against six.
On July 24, 2007, five medical officers and doctors were extradited to Bulgaria, where their sentences were diverted by Bulgarian President Georgi Parvanov and they were released. Libya has since complained about its release, and the issue is still continuing. Furthermore, there was controversy over the terms of the release, which allegedly included arms trafficking as well as a civil nuclear cooperation agreement signed by French President Nicolas Sarkozy in July 2007.
New Zealand
New Zealand's first case of HIV transmission in 1993, when Peter Mwai, a Kenyan who visited New Zealand on a tourist visa, was sentenced to seven years in prison for infecting at least two women with HIV through unprotected intercourse. Mwai came to New Zealand police after a woman reported she had HIV after sleeping with her. Some women came to the front saying they had unprotected sex with Mwai who did not tell them that she was infected with HIV. At least two of the women were HIV positive. Peter Mwai was charged with existing legislation, for causing 'serious bodily harm' and 'dangerous harm'.
On October 6, 2005, the New Zealand District Court ruled that HIV positive people do not need to inform sexual partners about their status during safe sex. In a ruled case, the man uses condoms during intercourse but not during oral sex. His colleague has not been infected. The same man was convicted of a previous criminal offense for having unprotected sex with another partner without revealing his HIV status.
In May 2009, a 40-year-old bisexual man from Auckland was alleged to have infected at least five young gay men between 2008 and 2009. One of the infected men had filed an official complaint with New Zealand police, where sex had shut their mouths. door to the so-called 'HIV predators'. and police arrested the 40-year-old man on May 28, 2009. On June 16, 2009, the court heard that two more people filed a total complaint to six. The eight accusations included that he "recklessly ignored the safety of others caused - or attempted to cause - a painful body injury to five men aged 17, 20, 24, 26 and 31, plus a woman aged 19." He faces charges "deliberately and without justification or reasons that cause men aged 20 and women aged 19 years, namely HIV." The court set for 2010 was not resumed because Glenn Mills, accused of consciously exposing fourteen young people to HIV, was found dead in his Mt Eden jail cell on November 30, 2009 after two unsuccessful appeals to be released on bail within weeks previous..
Dutch
Three HIV-positive men, Peter Mulder, Hans Jurgens and Wim Dekker, were imprisoned in 2008 on charges of trying to inflict severe injuries after anesthetizing and raping 14 men, some of whom injected with the blood of those infected with HIV. Twelve victims were either HIV positive or AIDS at the time of the trial.
Polish
In Poland under Art. 161 of the Criminal Code, people who are consciously at risk of infecting others with HIV may be jailed for up to 3 years.
Russian
Infecting others with HIV is a criminal offense unless the person knows about previous HIV infections and agrees.
United Kingdom
- For a full discussion of the issues raised in sexual transmission, see Approval (criminal law)
Transmission can generally fall under chapters 18, 20, 23, 24 or 47 of the Violations of the 1861 People Act.
As of June 19, 2006, there have been seven beliefs for sexual transmission of HIV in England and Wales under s.20 of the 1861 Act which, inter alia , criminalizes recklessly causing wretched body damage. Of these, five are men accused of infecting a female partner during sex, one of whom is a man pleading guilty to infecting a male partner, and one (in Wales) is a woman. In 2005, the 20-year-old Welsh woman was convicted of infecting her lover with HIV during sex, knowing she had an infection. In 2006, a 43-year-old woman pleaded guilty to recklessly causing severe injuries to her 31-year-old lover.
Only two cases claim to be 'innocent', and both have filed an appeal. In Regina v Dica (Mohammed) [2004] The Court of Appeal stated that a person is reckless if, knowing that they are HIV-positive, they transmit HIV to people who have not been informed about the infection, and punish him for a total of 8 years jail. It is not necessary to prove that the transmission has involved an attack to "inflict" the disease. They recognize that there may be a higher standard of disclosure expected of a person in a relationship, compared to the "known risk" involved in free sex. Matthew Weait has addressed this case critically.
In Regina v Konzani the same court stated that a person accused of carelessly transmitting HIV can only increase the defense of consent, in cases where the agreement is a "voluntary" or "conscious" agreement. In other words, the court distinguishes between "willing to run transmission risk" and "willing to agree on the risk of transmission." This shows that approval will only serve as a defense - in all but the most extraordinary cases - where there has been a previously known disclosure of HIV positive status.
In June 2006, two women have been convicted of transmitting HIV infection in the UK. The first, from Cardiff, was imprisoned for 2 years; the second, Sarah Jane Porter, was convicted of severe physical injury through careless HIV transmission, and was sentenced to 32 months in prison in June 2006.
The National AIDS Trust has published a chart of cases of people in England and Wales accused of indiscriminate HIV transmission.
In November 2017, a man named Daryll Rowe was convicted of a severe bodily injury after deliberately infecting five men with a virus and trying to infect five more people. The Rowe case has been reported as the first case in the United Kingdom where the defendant was found guilty of deliberately rather than spreading the virus carelessly. In 2017, another man, Antonio Reyes-Minana, was found guilty of serious injury after detaining his HIV status from two male partners.
An important issue that arises where evidence of transmission is required, is to build the source of HIV infection reporting. Although it can not prove the route and time of transmission, phylogenetic analysis has been used in many trials to show how closely the HIV strain is in the sample taken from the defendant and the complainant. Problems and issues surrounding phylogenetic analysis in criminal investigations are discussed in a 2007 report by aidsmap.
Presentation from the Economic and Social Research Council funded the 2011 "HIV/AIDS and Law: Theory, Practice and Policy" seminar series at Keele University addressing the issue of criminalization.
Scotland
In February 2001, Stephen Kelly, a former inmate and former IV drug user, was convicted of a breach of Scottish common law that "inflicts haphazardly" ex-spouses by infecting him with HIV. In HMA v Deveraux (2010), the HIV positive defendant pleaded guilty to a reckless injury on four counts, one of which caused the victim to become infected with HIV.
United States
In July 2010 the White House announced major changes in HIV/AIDS policy, a change informed by public health research research conducted by Scott Burris, a law professor at Temple University and director of the Public Health Law Research program. The Obama Administration's national HIV/AIDS strategy for the United States concludes that "the continued existence and enforcement of this type [which criminalizes HIV infection] is contrary to scientific evidence about the route of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment."
In the fall of 2010, the Center for HIV Law and Policy launched a 'Positive Justice Project', a campaign to combat HIV-related stigma and discrimination against people with HIV by the US criminal justice system. It released HIV-specific legal and prosecution guidelines in 50 states, the District of Columbia, the US Territory, the Federal government and the military in 2010.
On September 23, 2011, Rep. Barbara Lee (D-CA) introduced H.R. 3053, Existing Revocation Policies that Encourage and Allow the HIV Discrimination Ordinance Law or the DEVELOPING HIV Discrimination Act. The UN HIV Discrimination Act calls for a review of all federal and state laws, policies and regulations on individual criminal prosecution for HIV related offenses. The bill was dead on the Healthcare Subcommittee, and also in 2013/2014 when it was introduced as HR 1843 and called the Subcommittee on Military Personnel.
The court has looked at the possibility of statistics of HIV transmission to cancel or reduce criminal penalties resulting from prosecution. For example, on February 23, 2015, the US Court of Appeals for the Armed Forces reversed the aggravated aggression belief of Technical Sergeant David Gutierrez when it was determined that the risk of sexually transmitted HIV was not "likely to result in death or sadness, harming the body" under the law applicable.
By 2017, the Centers for Disease Control and Prevention (CDC) states that those who are currently on HIV treatment can no longer transmit the virus.
Criticism of criminal law
South Africa openly, Supreme Court Justice, Chief Justice Edwin Cameron, spoke out against criminalization at the XVII International AIDS Conference in Mexico City.
Additional criticisms of criminalization indicate a lack of empirical evidence supporting its ability to stop or slow the infection, the continuing reluctance of legal entities to narrowly adjust the prosecution of disease-related behavior, excessive punishment and disproportionate impact on communities whose rights are deprived.
See also
List of HIV-positive people: Criminal HIV Transmission
References
Further reading
- Chalmers, James 'Criminalization of HIV Transmission' 28 Journal of Medical Ethics (2002) 160; Criminal Legal Review (2004) 944;
- Donegan E, Lee H, Operskalski EA, Shaw GM, Kleinman SH, Busch MP, Stevens CE, Schiff ER, Nowicki MJ, Hollingsworth CG. Transfusion retrovirus transmission: 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
- LegalEase Collective, 'Episode 38 - Status of Non-Disclosure of HIV Status: Legal Analysis of Canadian High Court Judgment R. v. Mabior and R. v. D.C. ' LegalEase on CKUT 90.3 FM (October 2012); [8]
- OSI 10 Reasons to Oppose Criminalization of HIV Exposure or Transmission;
- Spencer, J.R. 'Obligation to Reckless Infection: Part 1' Journal of the New Law (March 12, 2004) 384;
- Spencer, J.R. 'Obligation for Reckless Infection: Part 2' Journal of the New Law (March 26, 2004) 448;
- Spencer, J.R. 'Reckless Infection in Appeal Course' Journal of the New Law (21 May 2004) 762; Warburton, Damian (2004) "A Critical Review of English Law in Respecting the Crime of Behavior by HIV Individuals" Journal of Criminal Law (2004), 55;
- Weait, Matthew (2007) Intimacy and Responsibility: Criminalization of HIV Transmission (Abingdon: Routledge-Cavendish);
- Weait, Matthew 'Dica: Knowledge, Consent, and Transmission HIV' Journal of the New Law (28 May 2004) 826;
- Weait, Matthew 'Criminal Law and Transmission HIV Sex: R v Dica' 68 (1) Modern Law Review (2005) 121;
- Weait, Matthew 'Blame: criminal law, social responsibility and HIV sexual transmission' 23 (4) Journal of Social Welfare and Family Law (2001) 441-457;
- Weait, Matthew & amp; Azad, Yusef 'Criminalization of HIV transmission in England and Wales: Legal and Policy Questions' HIV/AIDS Policy and Legal Review (August 2005)
- Weinberg PD, Hounshell J, Sherman LA, Godwin J, Ali S, Tomori C, Bennett CL (Feb 2002). "The legal, financial, and public health consequences of HIV contamination from blood and blood products in the 1980s and 1990s". Ann Intern Med . 136 (4): 312-9. doi: 10.7326/0003-4819-136-4-200202190-00011. PMIDÃ, 11848729. Ã,
External links
- HIV Crime Transmission - a list of important cases
- HIV and criminal law (International resources from NAM)
- Research Project on Transmission of HIV Criminal Peak 100 Online Profile
- HIV Positive Caregivers Sentenced to 13 Years
- Information on some European countries
- Information about England and Wales
- More information about England and Wales
- Canada's HIV/AIDS Legal Network
- HIV & amp; AIDS Legal Clinic (Ontario) Canada
- Center for HIV & amp; Policy - Positive Justice Project
- NAM Aids Map - Transmission of HIV as a crime
- WHO technical consultation - Report by the World Health Organization on the Criminalization of HIV Transmission
- Keele Research Institute for Law, Politics and Justice - Legal, political and social issues related to HIV were discussed in a series of seminars at Keele University in 2005/6.
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