When
general assault or homicide laws are used to prosecute potential or
actual HIV
exposure or transmission, jurists have sometimes had to decide exactly
what
'harm' has been perpetrated to fit such acts into these laws. For
example, in
criminal HIV exposure cases (sexual or otherwise), it is the 'harm' of
exposure
to the risk of acquiring HIV that is primarily the focus of the case,
since
actual bodily harm did not occur. It is the impact of the betrayal, fear
or
uncertainty or the temporary physical harm caused by
post-exposure prophylaxis (PEP) that is often cited by complainants, prosecution and judges as the
reasoning
behind their belief that the accused should be legally liable and
culpable.
For example, in a recent Canadian case where an HIV-negative
man was
informed by his partner that she was HIV-positive after a condom broke,
and in which
evidence in court asserted a 1-in-2000 risk of his acquiring HIV, the
man wrote
in his victim statement: "I am no longer able to sleep through the night
due to anxiety and stress. I am stuck in a box ... I don't care about
anything
anymore. The year of doing blood work to make sure I was OK has affected
me the
most. The waiting period of a whole year felt like an eternity to me.
Waiting
to see if I was affected by the disease has had the most fearful impact
on my
life. I am still not 100% sure in my mind that I am OK." See ‘Woman
kept
HIV status to herself’ Toronto
Sun, September 11, 2009. (It should be noted that he may have
received
incorrect medical advice regarding the need to wait a year to discover
whether or
not he had acquired HIV; the latest generation of HIV tests detect
infection
between five and 30 days following exposure. UK National
Guidelines for HIV Testing, 2008.) The woman pleaded guilty to
aggravated
sexual assault and was sentenced to two years' house arrest. See Bernard
EJ ‘Canada:
Hamilton
woman gets two years house arrest after pleading guilty to HIV
exposure following condom failure (update)’(21 Nov 2009) Criminal
HIV Transmission. www.criminalhivtransmission.blogspot.com.
In the United States, a 35-year-old
HIV-positive man with
mental health issues, and characterised as a ‘drifter’, was sentenced to
15
years in prison "for threatening to kill" with his illness, then
"biting a Miami cop”. Here, the prosecutor focused on the "eight
anxious months" before doctors told the policeman he was HIV-negative
and
the (irrational) fear that he might transmit HIV via "any contact with
his
wife or children". The policeman later told reporters: "For three
months afterward, I had to take a cocktail of medication three times a
day,
causing diarrhoea, vomiting, nausea – everything you can think of." (It
should be noted that he may have received incorrect medical advice: Post
Exposure Prophylaxis is
typically prescribed for no longer than 28 days). See ‘HIV positive
drifter gets 15 years for biting Miami cop’ Miami Herald,
26 August 2009.
See the chapter: Risk for more information on post-exposure
prophylaxis (PEP).
This has led to the 'harm' of HIV being
defined in ways that are not necessarily accurate or appropriate. For
example,
in some United States
jurisdictions the bodily fluids – whether it is non-infectious saliva,
or
possibly infectious semen – of someone living with HIV have been legally
defined as ‘lethal’ or ‘deadly weapons’.1
The application of
general laws to HIV exposure or transmission may also be influenced by
such
factors. For example, an HIV-positive man in Michigan who bit his
neighbour in a fight
was charged under a recently enacted terrorism law. This law makes it a
crime
to have a harmful device, which is defined as being biological,
chemical,
electronic or radioactive. The prosecutor argued that simply being
HIV-positive
meant that the defendant himself was “a device designed or intended to
release
a harmful biological substance”, and that his bite was thus an attempt
to
spread HIV. The prosecutor was relying on a prior Michigan Court of
Appeals
ruling which states that "HIV infected blood is a ‘harmful biological
substance,’ as defined by Michigan
statute, because it is a substance produced by a human organism that
contains a
virus that can spread or cause disease in humans."5 The judge eventually
dismissed the
bioterrorism charges.6
(See Case Study: Canada
and the United States – Preoccupation with Alleged HIV Exposure and
Transmission during Biting and Spitting
in the chapter: Laws.)
Some commentators have argued that such unequal treatment of people
living with
HIV amounts to discrimination. Justice Edwin Cameron suggests that these
are,
in fact, HIV ‘status crimes’ and that the person living with HIV is
being
"punished less for what they did than for the virus they carried. A
similarly situated person engaging in the same acts but without HIV
would
almost certainly not be charged with any crime. HIV status made the
difference."7
1.
For
example, New Mexico, North
Carolina and Texas,
see: Criminal
HIV Transmission (www.criminalhivtransmission.blogspot.com).