CRIMINAL TRANSMISSION OF HIV – FOR
NO CONDOM, NO WAY!
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More than 25 million people have died of AIDS since 1981. 33.4 millions of people are surviving with AIDS in 2008. At the end of 2008, women accounted for 50% of all adults living with HIV worldwide. HIV is a virus that damages human immune cells (Hillig).
It weakens the immune system, and eventually, leads the infected person to develop a disease called AIDS. The few possible ways that people become infected with this virus are the following: having sexual intercourse with an infected partner, and/or injecting drugs or syringes using a needle or syringe that has been used by another person (Hillig).
For the number of people living with HIV today, a primary concern should be preventing others from being infected with the same virus. Individuals that do have this infection are aware of the troubles to live with this disease and know that they would not wish this on anyone else. Individuals with this infection fail to realize that one little mistake can cost another person their life. It is sickening to think that there are many people in this world who are apathetic towards others who value their life. The precautions that should be taken, are often not undergone, and therefore result in a worsened situation. There are several cases, stories that have appeared in the media that express the grave stigma that lies around this subject. Some individuals that were charged have been prosecuted and imprisoned for their choices and actions in life. On the other hand, there are many people who have knowingly transmitted the disease, but still are not legally responsible. The fact still remains, that around 31.3 million adults and 2.1 million children were living with HIV at the end of 2008 (Hillig).
The Essay on Hiv And Aids Virus People Cells
In 2001, 5 million people around the world were infected with HIV. By the end of 2001, there were 3 million AIDS deaths. There are currently ... to develop. HIV infects the T-helper lymphocytes and other white blood cells, destroying them. There is a variation between the viruses of ... a massive number of lives, and is set to take many, many more. But what is this HIV/AIDS virus? HIV and AIDS are ...
To eliminate this apathetic behavior that is the cause of a widespread epidemic, it is necessary to eliminate the root of the problem. Therefore, males and females who are HIV positive bear criminal responsibility for the transmission of the disease and should be prosecuted accordingly.
Before comprehending the intricacies of prosecuting people with HIV, it is important to understand the three different types of transmission that can occur. Reckless, intentional, and accidental transmissions of HIV are the three types that are considered by judges frequently when deciding whether or not a person is responsible for the charge (Ginn).
The most serious form of criminal transmission is considered to be intentional transmission of HIV as it is deliberate and willful. Some cases have involved individuals (both HIV positive and HIV negative) who have used needles or other apparatus to intentionally infect others with HIV. Others have been based on HIV positive people who have had sex with the crucial intent of transmitting the virus to their partner (Thompson).
When a negative partner has a desire to become infected with HIV for whatever reason, intentional transmission can also take place. This is improbable to lead to prosecution however, as both parties provide consent.
Another form of transmission is the reckless form of transmission (Thompson).
This is when the person transmitting HIV was careless, and failed to provide the duty of care. It is different from the deliberate transmission of the disease. For example, a person who knows that they have HIV has unprotected sex with a negative person (for the purpose of having sex), but does not inform the other of the risks involved could be classified as reckless transmission in court. Since the HIV positive person did not willfully intend to give their partner the disease, “reckless” here implies that the transmission happened because both parties wanted to be involved in sexual behavior (Berger).
The Essay on Preventing HIV Transmission
Preventing HIV Transmission from Mother to Child Thesis Statement: The percentage of HIV transmission from mother to child can be prevented in a number of ways. I. The AZT treatment is one way to prevent HIV. A. AZT is a drug that decreases mother to child transmission of HIV. B. AZT is given to the HIV positive mother throughout her pregnancy. II. HIV can be contracted through breast-feeding. A. ...
It is important to notice that the chance of the disease being spread is probable since it is not compulsory that the infection has to spread every time someone has unprotected sex.
Accidental transmission is the most common form of transmission. It is either one of two cases: the HIV positive person having intercourse was not aware of his disease, and hence, did not inform the other person OR the person knew that they had the virus used a condom, but it failed somehow. This is the most common way that HIV is passed on.
Even though the above explanations seem simple, unfortunately justifying whether or not someone intentionally, recklessly or accidentally transmitted is very difficult. How one interprets the three categories is entirely up to them, and the margin between each of these sections is not very distinct. Courts have a very hard time debating whether or not someone is guilty even after the decision has been on what arguments to prosecute (Oweid).
Although it might seem like the proof for transmission is a simple issues – it is really not; proving that a person transmitted HIV to another can be crucially difficult. Firstly, it needs to proven that the accused (lets call them John) was the definite victim (lets call her Mary) of transmission. To prove this, some evidence would include sexual history, testing history and scientific evidence in the form of phylogenetics (Jurgens).
Phylogenetics is the DNA of the virus that John and Mary are infected with. It compares their DNA to each others. If these are completely different, then it means that Mary did not catch the virus from John, and the case would immediately be thrown out. However, if the strains are alike, it is highly likely that John did infect Mary. Phylogenetics does not show the direction of transmission which makes it probable that Mary could have infected John. Also, Mary and John could have both been infected by another third party, or different people that share the same strand (Jurgens).
Therefore, due to its complications and shortcomings, lawyers recommend that phylogenetics only be used in alliance with other evidence.
The Term Paper on Promote positive behaviour 5
In this assignment I am going to explain my understanding about, legislation, frameworks, codes of practice and policies relate to positive behaviour support. Understand the context and use of proactive and reactive strategies. Be able to promote positive Behaviour Be able to Respond Appropriately to Incidents of Challenging Behaviour. People with learning disabilities show behaviours which ...
Most criminal allegations that are brought to court involving sexual transmission usually happen because an HIV positive person failed to inform their partner about their virus. In some cases, the HIV positive person may have actually lied to a direct question involving their status, in order to persuade someone to have unprotected sex with them (Ginn).
Others simply may decide not to declare their status. Whatever the situation, a prosecution that involves deception is given a harsher penalty than a failure to close, as it affects one’s choice to consent to sex. However, this is more reliant on local laws.
Amongst all the other underlying issues, consent tends to be the most important one in all criminal prosecutions. If the accused had not declared their HIV positive status, then it would be argued that the accused had been reckless by not informing their partner of the risks they are taking on, and by not disclosing their situation (Berger).
However, the defence could counter-argue this by saying the responsibility is shared between the two people, because by agreeing to have unprotected sex, the victim consented to all the risks that are involved, including the transmission of the virus. In the trail of Mohammed Dica, the first person in England who was accused of recklessly transmitting the disease, this argument was used (Thompson).
The situation would be different if the accused have deceived their partner, and told them that they were negative when they were in fact, HIV positive. Then, the prosecution could argue that shared responsibility lied solely on the accused, making him/her more legally responsible for trial.
Even if the accused used a condom during intercourse, the argument that the non-disclosure equals guilt could also be applied. Some argue that failing to identify the status of the transmission, but using a condom should also count as a reckless transmission. It is further explained that condoms are not always 100 % efficient and if it fails, then the person becomes infected with HIV (Hillig).
Hence, there it is probable the person will accuse their partner of being ‘reckless’ for not withholding information that could have affected their decision to have intercourse.
Criminal transmission trials have been held in many countries around the world, but most have occurred in the West.
The Research paper on Patient Case Study
Patient case study. Part I: I would like to start by saying that AIDS is a short form for Acquired Immune Deficiency Syndrome. It is a disease that damages the body's immune system (the system that helps fight off illnesses). When a person's immune system is damaged, he or she is more likely to become sick from illnesses that might not hurt a person who has a healthy immune system. The person's ...
One of the leading cases is R v. Cuerrier (1998) 127 CCC (3d) 1 (SCC) where the defendant was charged with aggravated assault for sexual transmission of HIV under section 268 of the Canadian Criminal Code. The trial judge that was in charge of the case had misdirected himself and ordered a new trial for the Supreme Court of Canada on two counts of aggravated assault. However, the Attorney General for British Columbia declared in May 1999 that a new trial would not happen.
The Supreme Court of Canada has hence refused to criminalize the sexual transmission of HIV. The jury or judge must address each issue as they arise, and each case should be treated differently. Other legal proceedings and cases have found that the failure to disclose HIV-positive status, along with failure to use contraceptive measures (e.g. condom), is enough deceitful behavior for turning “consensual” sex into aggravated sexual assault. This occurs because the HIV infected person has withheld information necessary for the other party to provide informed decisions about consent.
A doctor from Louisiana, USA, by the name of Richard Schmidt was accused for infecting his lover, by injecting her with HIV infected blood (Thompson).
She was a nurse called Janice Trahan. After she tried to end their relationship, Schmidt injected her with some blood from one his patients who had HIV to get revenge, Trahan claimed. The DNA samples that were obtained from the patient that was HIV positive and the sample from Tarhan were very similar, but the defence argued that “very similar” is not good enough for scientific accuracy. HIV virus quickly mutates and changes its own DNA structures once it is inside another person’s body which means that the comparisons are complicated and difficult (Thompson).
Scientists, however, used a new technique called ‘phylogenetics’ which is evolutionary analysis of the DNA structure and determined that Tarhan was most likely the victim of the patient’s virus. Schmidt was found guilty and sentenced to 50 years.
This was clearly the first time that phylogenetics were being used in a criminal transmission case, but now, it is the only way of determining what the source of HIV infection is. Also, this scientific method was used in the early 90s to determine the reason of infection of five patients that were all treated by the HIV positive Florida dentist, Dr. David Acer (Jurgens).
The Essay on Hiv Positive Parents Should Not Have Children
HIV POSITIVE PARENTS SHOULD NOT HAVE CHILDREN Human Immunodeficiency Virus, better known as HIV, is a virus that slowly attacks and destroys the immune system. This destruction leaves the infected individual exposed to illnesses and infections that eventually cause him to die. In most cases, this virus alters and becomes a fatal transmissible disorder called AIDS or acquired immunodeficiency ...
He was found to be the cause of all five infections, but prior to any charges being brought forward, he died.
On December 1998, a medical technician from Illionios, Brian Stewart, willfully injected his son with HIV infected blood, in an attempt to kill him, so that he could avoid paying child support. He was sentenced to life in prison. After all the possible sources were ruled out, he was found guilty. Stewart, on one instance told his son’s mother not to bother seeking child support from him, because the son would not survive beyond the age of five (Ginn).
On another occasion, he told his colleagues that supposedly he had “the power to destroy the world… I would inject them with something and they would never know what hit them.”
In June 2004, Christophe Morat was found guilty to disclose his positive HIV status to two women, Isabelle and Aurore. Both of these women became infected with HIV and Morat was sentenced to six years in prison under the law designed to be used in cases of poisoning. France does not have any specific criminal transmission of HIV rights. Morat’s appeal against his sentence was rejected right after Aurore decided to commit suicide. However, Isabelle became part of a major HIV action group called the Femmes Positives. This group’s mission is to get the French government to make specific laws about transmission of HIV so that they are able to prosecute their sources (Oweid).
This group has opened a table for discussion in France over whether or not HIV positive people can be actually divided into victims and criminals, and whether the idea of shared responsibility in preventive methods should stay.
During the 10 years he lived in Thailand, a 56 year old German man, known as Hans-Otto Schiemann deliberately tried to infect around 100 Thai women ( inclusive of his wife).
He was sentenced to jail for two months for overstaying his visa, and then was deported to Germany, as Germany does not have any legislation which covers unprotected sex or its consequences. He genuinely hated Thai woman, and was reported to be calling them ‘witches’ and ‘monkeys’. He, however, claimed that he had not done anything wrong (Thompson).
The Term Paper on Modes Of Transmission Specific Std Sexual
Syphilis Etiology -- Spirochete Treponema Pallidum Type of organism -- Bacteria Specific symptoms -- Characterized by a small lesion, called a chancre the secondary stage, a generalized rash appears. Painless ulcers develop in the mouth, and broad, wart like lesions, may appear in the genital area. Headache, fever, and enlarged lymph glands are sometimes observed. Specific modes of transmission -- ...
He re-entered the country and was deported promptly in November 2005.
In December 2004, Anthony E. Whitfield, an Africa-American from Lacey in the USA was sentenced to a record 178 years in prison by a court in the Washington. He had exposed HIV to 17 women and infected his wife and four others. He was found guilty on three counts of violating a court protection order, 17 counts of first-degree assault with sexual motivation, and two counts of witness tampering. This prosecution caused several racist uproars, with flyers that said “Don’t Have Sex with Blacks; Avoid AIDS”, which were sent to more than 100 homes. He was one of the 150 people who have been convicted of criminal HIV transmission in the U.S. Kenyan-born Mohammed Dica lived in Mitcham, SW London. In March 2005, he was found guilty for reckless grievous bodily harm against two women. This was the first ever HIV transmission in England and Wales and he was sentenced to 8 years in prison. He appealed, and claimed that he had been denied the opportunity to provide evidence that showed that the two women had consented to unprotected sex (Thompson).
A retrial was ordered, but later stopped due to the validity of documents submitted by one complainant. She withdrew her complain and dropped out of the trial. On his third hearing(with only one complainant), the jury failed to reach a verdict. On his final hearing, he was found guilty on one charge and was sentence to jail for four and a half years.
In the late 1980s and the early 1990s, the first case of an entire organization being prosecuted for HIV transmission was raised. The Canadian Red Cross was taken to court for infecting more than 1,000 Canadian citizens with infected blood products. They had failed to properly execute HIV and hepatitis screening for quite a few years after the test for the disease became obtainable even though they had been running the country’s national blood donor plan for years before the scandal. They were accused of “distributing an adulterated drug”. Once the organization admitted that they were guilty, stated a huge apology and agreed to compensate the victims, the original charges were dropped. They were sentenced to a $ 5,000 fine and were asked to donate $ 1.5 million of money that could not be from public donation. This money went towards the scholarships of students affected by the tragedy and research for medical errors.
After the precedent setting cases, many states and countries now permit the prosecution of HIV-positive people for all forms of transmission such as reckless and accidental; some also for the exposure to such diseases. In some countries, they have specific laws that permit this solely, whereas other has more generalized law to get a conviction. Just like any other criminal trial, once one prosecution is attained effectively, it sets a precedent for future trials, and makes lawyers more prone to taking on such cases. There is a new trend which is of some concern because many organizations are trying to sponsor on behalf of HIV positive people around the world.
If a person is HIV positive, and they want to engage in sexual behavior, failing to use contraceptives is wrong, and people who such wrong should be brought to justice through the legislation regardless of their health, background, etc. because it is on the same platform as committing murder! Some people argue that they are protected from prosecution just because they have never taken an HIV test before. That is not right, and it should be possible to call a HIV positive person ‘reckless’ even if they have never had a test. It is their responsibility to gain knowledge not to put others or themselves in a risky situation, and hence, should be legally obliged to use a condom in the future. Therefore, criminalizing people for reckless transmission will act as a deterrent and will make HIV positive people think twice before having unprotected sex (Ginn).
Fortunately, most feel a great sense of responsibility when it comes to protecting their sex partners. Most know that it is morally wrong to put others in a dangerous situation by exposing them to HIV without their knowledge. This is very apparent when there is emotional involvement with a partner and some sort of commitment in a relationship. However, disclosure of HIV positive status and protected sex is least likely to occur casual partners as opposed to partners where there is commitment involved. The need for intimacy and sexual pleasure, may overcome the need for couples to use condoms during intercourse (Hillig).
Nonetheless, committed relationships and reduction in the number of partners protect against transmitting the virus and contracting HIV. Sexual partnerships of two persons, rather than many, also protect against infecting others.
Good intentions are not always translated into protective behavior when having sexual encounters with casual partners. Some infected people may want to disclose their status, feeling that it is the right thing to do. They may reason that their physical appearance, preferred sexual activities, or nonverbal cues (e.g. leaving medication or printed materials in plain sight) indicate their disclosure. However, direct disclosure is often very difficult; as it may hurt a person or they might get undesired outcomes (e.g. refusal to have sex).
Some infected people who do not disclose may try to protect another by using a condom or by not wanting to participate in certain kinds of sexual activities (Thompson).
Still, keeping one’s status a secret keeps their sexual partner from making a proper decision and discourages honest communication and enhances risk.
Because the achievement of medical treatments may have accidental consequences for HIV prevention, messages about self-protection and social responsibility to protect others are needed now more than ever, Lowering viral load and keeping it low may reduce the likelihood that a HIV positive person may infect a partner during sexual contact (Jurgens).
The concept of collective responsibility emphasizes that all of us, infected or not, low risk or high, bear a responsibility to change our attitudes and behaviors that may promote HIV infection(Thompson).HIV has been known to take the lives of many innocent victims; some aware and others unaware. Whether this crime is reckless or intentional holds no relevance to the fact that it is still being committed. Transmission of HIV ruins lives of not only the victims, but the victims families. If a person is HIV positive, not being able to use protection is wrong and people, who do such wrong, should be brought to justice according to the law, regardless of their physical health or being. Many people with HIV that transmit it, was once a ‘victim’ of the same situation. To remove the transmission, steps and measures should be taken. Also, criminal cases help to uncover and warn lots of HIV positive people who might not otherwise learn their status. It is through landmark cases such as R v. Cuerrier that we get to learn the depth of the matter at hand. To eliminate this apathetic behavior that is the cause of a widespread epidemic, it is necessary to eliminate the root of the problem. Therefore males and females who are HIV positive bear criminal responsibility for the transmission of the disease and should be prosecuted accordingly.
Works Cited
1. Ginn, D. (2000, March 5).
Can Failure to Disclose HIV Positivity to Sexual Partners Vitiate Consent?. Retrieved November 16, 2009, from http://web.ebscohost.com.ezproxy.torontopubliclibrary.ca/pov/detail?vid=4&hid=5&sid=03ea2f9d-f7f1-4430-a001-922d1b4e42b6%40sessionmgr10&bdata=JmFtcDtsYW5nPWVuLWNhJnNpdGU9cG92LWNhbg%3d%3d#db=p3h&AN=110
2. Jurgens, R. (2004, August 7).
United Nations agencies release policy brief on reduction of HIV transmission in prisons.. Retrieved November 16, 2009, from http://web.ebscohost.com.ezproxy.torontopubliclibrary.ca/pov/detail?vid=16&hid=5&sid=bce09fdf-e0d4-48f3-91f7-8f2213b45227%40sessionmgr13&bdata=JmFtcDtsYW5nPWVuLWNhJnNpdGU9cG92LWNhbg%3d%3d#db=p3h&AN=14
3. Oweid, A. (2005, March 19).
Aids in Africa: an overview. Retrieved November 17,2009, from http://web.ebscohost.com.ezproxy.torontopubliclibrary.ca/pov/detail?vid=5&hid=3&sid=d2faeb8c-39a6-4ca8-99e5-2ecb8769aa47%40sessionmgr4&bdata=JmFtcDtsYW5nPWVuLWNhJnNpdGU9cG92LWNhbg%3d%3d#db=p3h&AN=44716243
4. Hillig, T. (2008, March 28).
Man with HIV gets 10 years for unprotected sex — again . Retrieved November 18,2009, from http://web.ebscohost.com.ezproxy.torontopubliclibrary.ca/pov/detail?vid=13&hid=3&sid=d2faeb8c-39a6-4ca8-99e5-2ecb8769aa47%40sessionmgr4&bdata=JmFtcDtsYW5nPWVuLWNhJnNpdGU9cG92LWNhbg%3d%3d#db=p3h&AN=2W6959434427
5. Berger, P. (2007).
Prosecuting for knowingly transmitting HIV is warranted. 180. Retrieved from http://proquest.umi.com.ezproxy.torontopubliclibrary.ca/pqdweb?index=1&sid=1&srchmode=1&vinst=PROD&fmt=1&startpage=-1&clientid=1525&vname=PQD&RQT=309&did=1753006351&scaling=FULL&ts=1258597079&vtype=PQD&rqt=309&TS=1258597095&clientId=1525
6. Hillig, T. (2008).
Bethalto man with HIV charged with having unprotected sex . 26. Retrieved from http://web.ebscohost.com.ezproxy.torontopubliclibrary.ca/pov/detail?vid=13&hid=3&sid=d2faeb8c-39a6-4ca8-99e5-2ecb8769aa47%40sessionmgr4&bdata=JmFtcDtsYW5nPWVuLWNhJnNpdGU9cG92LWNhbg%3d%3d#db=p3h&AN=2W62W62913310188
7. R. v. Cuerrier, 1996 CanLII 8324 (BC C.A.)
8. Thompson, J. “Criminal Transmission of HIV.” Avert. 07 08 08. AVERTing HIV and AIDS, Web. 10 Jan 2010. <http://www.avert.org/criminal-transmission.htm>.
9. Canadian Red Cross Society (Re), 2007 CanLII 7578 (ON S.C.)
10. R. v. Aziga, 2008 CanLII 29780 (ON S.C.)
