Oh ghod

[lovingboth]

There's been another conviction for HIV transmission, this time of a woman.

As ever, there is zero evidence that, despite the comment in the story, the infection was "deliberate".

I am more surprised that it's so hard to find the details. "A woman with HIV could infect you lads!" (my paraphrasing) was one of the HEA's more notorious ads, not least because the viewer was supposed to be horrified that she would look the same as she did now in several years time. Presumably, they'd be happier if she died quickly.

But on the BBC's website, it's not in the news page, not in health, not on the Wales page, but only on the SE Wales one. A bit of browsing reveals that it's copied from a Press Association story, not that the BBC acknowledge that...

Comments

[valkyriekaren.livejournal.com]

The article was in the Metro earlier in the week - in their account, it seemed clear that she knew she had HIV, but was in denial about it so didn't talk about it to her new partner. To what extent that makes her culpable I'm not sure.

I think it's a bit strange accusing someone of deliberately passing on a disease. I wouldn't sue the woman who sneezed on me on the Tube this morning for 'deliberately' giving me a cold; why should STDs be any different? I suppose it's because there are such big issues of trust and intimacy tied up with sex; in the same way that rape is perceived in our society as worse than other forms of violence, STDs are seen as worse forms of disease to pass on.

[f-l-i-r-t.livejournal.com]

I read about it yesterday on the BBC site, I was sure of it, hmmm?

[drdoug.livejournal.com]

there is zero evidence that, despite the comment in the story, the infection was "deliberate".

Indeed - and reporters would do well to note that. It's also the case, though, that the mens rea for GBH doesn't require you to have intended the grievous outcome: it is sufficient to be reckless as to whether it occurs or not.

Of course, this gets in to terribly murky waters about what it is reasonable to assume or not. But I'd be very surprised if any court ever ruled that it was reasonable behaviour, in the context of discussing having unprotected sex, to say you were HIV negative when you knew you were HIV positive. (Which is one reading of what happened - although like you, I've found the key details of the case frustratingly unclear.)

I am more surprised that it's so hard to find the details.

I'm not. Court reporting is rubbish - you hardly ever get details of what legal points the case turned on. Just yesterday I was trying to find out about the Polanski libel trial, and couldn't find anywhere the grounds on which the publishers were contesting it (there are about seven possible defences to libel in English & Welsh law, one of which is truth).

[zotz]

According to the Grauniad yesterday (looks to be a longer version of the PA story), she'd known for several months. And it's reckless transmission rather than deliberate transmission that she was charged with.

I wouldn't sue the woman who sneezed on me on the Tube this morning

De minimis non curat lex.

Interestingly, I haven't heard of any controversy over the law in Scotland, which was I believe found to cover this without alteration. Does anyone know if there's actually been upset about this?

[zotz]

I believe they're maintaining that the story is substantially true, although they've admitted that if so it must have happened a couple of weeks after they said it did, which would mean that it was after Tate's funeral rather than on the way to it.

[valkyriekaren.livejournal.com]

Well, yes, a cold is a trifling example, and I was being slightly whimsical. But what if someone knowingly exposes someone to something else life-threatening, like tuberculosis or meningitis? Or typhoid (mary)?

[zotz]

I believe there have been prosecutions in England and Wales over that sort of thing, but not for a fair while.

[drdoug.livejournal.com]

Yes, that's my understanding too - but it's not clear whether that's what they're saying to the press or what they're saying in court. It's probably the only defence available from the given information.

I wanted to be sure that they aren't trying on a Reynolds v Times qualified privilege defence - i.e. that it was responsible journalism. If they were it would probably have been reported on, since that's still exciting new law. (If such a thing isn't an oxymoron.)

[lovingboth]

Looks to be what's being said in court - see today's evidence.

[zotz]

The defence hasn't started yet, of course, but for what it's worth the last sentence of today's Guardian coverage reads:

"However, Condé Nast, which denies libel, says the article is substantially true and will call Mr Lapham and a friend who was at Elaine's when the alleged incident took place to testify."

And that's all I know, I'm afraid.

[lovingboth]

Yep, we're talking Cunningham recklessness here, which requires the defendant to know that a risk is being taken, even if the injury is not intended.

What makes me weep is that she's reported as saying that "health staff had told her that it was almost impossible for a woman to pass on the virus." If she didn't think there was a risk, that's a defence. Instead, she plead guilty.

The position in England & Wales, following the Appeal Court's ruling in the second case to come before them is appalling. They drew the curious distinction between

being aware of the risks of having unprotected sex with someone, including infection or pregnancy,

and

consenting to the specific risk that they might be infected with HIV as a result.

Because his HIV status was concealed from the women, the court declared that there could not have been informed consent to the second risk, or even an "honest belief" on his part that there was, despite their willingness to have unprotected sex with him, knowing of the more general risks.

[lovingboth]

The case in Scotland - and another one that was due to start in April, but has been postponed until the defendent finishes a prison sentence in Italy - was for 'culpable and reckless conduct'.

In England & Wales, they're using the Offences Against the Person Act 1861. No new law's been passed.

Yes, there has been upset, but not nearly enough, IMV. Before the first case happened, the government were saying that reckless transmission shouldn't be an offence, FFS.

It certainly (in England & Wales) applies to other 'serious' STIs. Hep B has been mentioned a couple of times, but it probably goes as far as gonorrhoea. That was the disease in the crucial Victorian case the Court of Appeal decided no longer applied.

[lovingboth]

As far as I can see, the relationship started in September 2002.

They moved in together and stopped using condoms and then she tested HIV antibody positive in June 2003. So they'd been having unprotected sex before her diagnosis.

As he didn't test until December 2004, it's very unclear when he was infected.

[zotz]

'culpable and reckless conduct'

Yes, but if the effect is the same (in this sort of case, anyway) is it similarly controversial? If not, any idea why not?

Before the first case happened, the government were saying that reckless transmission shouldn't be an offence, FFS.

Didn't the Law Comission disagree, though?

[zotz]

"health staff had told her that it was almost impossible for a woman to pass on the virus."

Where's that from? The BBC just says "difficult".

[lovingboth]

The Sun.

The BBC's report has changed several times, as they've retracted several claims that she 'deliberately' or 'knowingly' infecting him.

[zotz]

Most of the stories don't mention that bit at all. ICWales says difficult. It would be worth knowing which was more accurate.

[lovingboth]

BASHH, in their guidelines for PEP, reckon that the per act risk for "insertive vaginal intercourse" is between 0.03%-0.09%, i.e. less than one in a thousand.

There's evidence to suggest that it's nearer one in ten thousand, outside the initial couple of months after her being infected and any eventual onset of Aids.

Anyway, they were fucking without condoms for ten months. Say they did it a hundred times. With the high end of the BASHH estimate, you're looking at a 8.6% chance of transmission, low end, less than 3%. She's far more likely to have become pregnant.

[lovingboth]

It's possibly been downgraded - at one point, the BBC reckoned that this was the first case of deliberate infection.

They were wrong, and - although it should be made clear at that link and it isn't - have changed it at least twice.

[lovingboth]

<cynical> Who cares about junkie ex-cons? </cynical>

One of the people who is kicking up a fuss about the issue as whole is at St Andrews. Unfortunately, the Scottish Executive have an adjective-deleted proposal for compulsory blood tests on anyone thought to have put a member of the polis at risk.

Yes they did - and I'm still waiting for them to send me a copy of their original paper. It was in response to that that the government repeated their view that a) trying to prosecute reckless transmission wouldn't work because of Clarence and b) it shouldn't happen, as a matter of public policy.