Assault with a deadly weapon: HIV-1

If you are HIV-1 positive, you cant have unprotected sex without telling your partner your HIV-1 status.

You cant get drunk with your new boy/girlfriend, go back to their place, and have a night of unprotected passion. You cant do that. Even if you are an HIV-1 Denier, you cant do that.

After you know (or in the case of Deniers ‘are told’) you are HIV-1 positive, it is your responsibility to tell your sexual partners you are positive. If your infection is well controlled with antiretrovirals and your viral load is undetectable, and say your partner really wants a child, they might decide unprotected sex is worth the risk. Your partner might be cool with it, but insist condoms are always used, and maybe they want to go to a local clinic/counseling center for advice. Maybe they will need some time to think about it. Maybe they will walk out the door and never speak to you again.

But if you are HIV-1 positive, their decision is not your decision.

You cant decide ‘Oh, I wont infect them, I dont have to say anything’. You cant say ‘HIV-1 doesnt exist, I can tell them I am negative’.

And this isnt just a moral obligation– Philippe Padieu of Texas was just sentenced to 45 years in prison for knowingly infecting at least six women.

Several of the victims said they raised the topic of safe sex and using protection. His response, they said, was “I’m clean.”

… one victim said she went with Padieu to the 2005 doctor’s appointment when he was informed he was HIV-positive. She waited in the parking lot for him until he returned. Then, she said he looked her straight in the eye and said he was “negative.”

This guy is nuts. Hes in denial that there is anything wrong with him, and I totally understand that. But his denial isnt a license to infect these women. Id like to think that better counseling, maybe even therapy, at the time of his testing would have helped him deal with his diagnosis appropriately.

And Padieu doesnt ‘get it’. Hes got the usual HIV-1 predator defense: those women were whores

Padieu himself also took the stand, saying he was a victim of overzealous prosecutors. He said the women who accused him had all had multiple partners.

Yeah, no… Sequencing and phylogeny can tell us whether Padieu infected these women or not.

Dr. Michael Metzker, an associate professor in molecular and human genetics at Baylor College of Medicine in Houston, testified on behalf of the state. He had been hired to conduct a blind study on blood samples from each of the six victims and the defendant.

Metzker told the jury that based on the HIV strain present in the DNA of each sample, one individual stood out as being the most likely source of all of the other infections. Prosecutors revealed that the sample belonged to Padieu.

Yup. Evilution doesnt lie, dude. Sry. For all intents and purposes, Padieu was going around injecting women with HIV-1 while telling them it was saline. You cant do that.

This post is dedicated to an HIV-1 newb at Daily Kos ;) Its okay, newb. Not mad at you if you promise to learn moar.

Comments

  1. #1 Sili
    June 2, 2009

    Why, oh why, do people take anyone’s word for being ‘clean’?

    Yeah, I know I’m naïve an’ all, but really?

  2. #2 William Wallace
    June 2, 2009

    You cant decide ‘Oh, I wont infect them, I dont have to say anything’. You cant say ‘HIV-1 doesnt exist, I can tell them I am negative’.

    A very good friend of my family was infected by an HIV positive prick who knowingly had relations with over a dozen young women without disclosing his HIV status. I still don’t know why the male members of her family did not kidnap the prick, epoxy his anus and urethra shut, and force feed him a quart or two of dry rice with a funnel stuffed down his throat, followed by a gallon or two of water. Instead, he ended up in prison, where he was able to live out his days in sodomitic bliss.

  3. #3 JThompson
    June 2, 2009

    What lots of people seem to be griping about is the length of the sentence. They’re completely overlooking the fact the guy has been convicted of armed robbery before.
    In other words, in the eyes of the court, there’s a pattern of disregard for the safety and lives of others.
    That’s how any crime works. Any crimes you committed in the past are taken into account when you’re being tried.

    They’re also complaining that he should’ve gotten charged with manslaughter at the worst. From my understanding, manslaughter is more along the lines of doing something a reasonable person would consider dangerous and accidently killing someone. (Juggling loaded guns in a crowded room and accidently shooting someone or something.)
    When he lied to the woman that took him to the hospital, that alone would’ve been enough to prove intent…which is why manslaughter isn’t what he was charged with.

  4. #4 Prometheus
    June 2, 2009

    And the barf theme plays on…

    what a gross story.

    Here is the Oklahoma statute for reference:

    A. It shall be unlawful for any person knowing that he or she has Acquired Immune Deficiency Syndrome (AIDS) or is a carrier of the human immunodeficiency virus (HIV) and with intent to infect another, to engage in conduct reasonably likely to result in the transfer of the person’s own blood, bodily fluids containing visible blood, semen, or vaginal secretions into the bloodstream of another, or through the skin or other membranes of another person, except during in utero transmission of blood or bodily fluids, and:

    1. the other person did not consent to the transfer of blood, bodily fluids containing blood, semen, or vaginal secretions; or

    2. the other person consented to the transfer but at the time of giving consent had not been informed by the person that the person transferring such blood or fluids had AIDS or was a carrier of HIV.

    B. Any person convicted of violating the provisions of this section shall be guilty of a felony, punishable by imprisonment in the custody of the Department of Corrections for not more than five (5) years.

  5. #5 Mobius
    June 2, 2009

    Sick bastard. Sick, sick bastard.

    Nothing else to say.

  6. #6 Prometheus
    June 2, 2009

    I forgot to mention the Canadians convicted Aziga of murder in April on similar facts and murder is an option if Frenchy’s Texas victims die because Texas does not have an intentional transmission statute.

    http://www.thespec.com/article/543253

    Before WW consults wikipedia, I looked at it last year and it was wrong. 32 states have felony transmission statutes and prosecute either under those statutes or (like those without) the aggravated assault statute. Manslaughter is not an option because in manslaughter you have to have a dead person AND no mens rea. Negligent homicide maybe but manslaughter? meh probably not.

    The aggravated assault statute is used most of the time because of all the D.O.C. cases locking in the precedent and Texas was one of the first. The criminal lawyers tell me their clients have dubbed this “spittin on the Po Po, hardest time there is”.

    I dunno, what is the professional biologist’s take on this legal ethics quandary?

    There is sure no international bright line

    Canada=Texas=UK

    Oklahoma=Iowa=Russia

    weird.

    P.S. We still have statutory quarantine uberpowers on the books in Oklahoma. The board of health can shackle you to a wall for any transmissible disease. They can put the electronic anklet on you and paint your door red on suspicion of a dose of the clap.

  7. #7 Sascha
    June 2, 2009

    I admit, I’m always unsettled by the harshness of the US Justice system. 45 years is high compared to Europe. A recent case here in Switzerland saw the accused given 3 years for attempted grievous bodily harm on 4 victims. I suppose that some amongst you might find three years to be low if not downright ridiculous.

    Most unfortunately, the 4 victims were all found to be seropositive when tested after their encounters with the accused. The tragedy here is that there was a fair suspicion that the accused had infected his partners but there was no attempt to prove this using forensic methods. The court appears to have reduced the charge to attempted as the proof of the result was lacking.

    My question is, how reliable is the method used in Texas? Compared to say finger printing or DNA analysis?

  8. #8 Dr. Matthew
    June 2, 2009

    I’m currently working in collaboration with colleagues at the Department of Public Health in a large urban area to create a “disclosure” based intervention. Many men cite fear of partner response, not knowing how to introduce it, or blame their partner (e.g., “they shouldn’t just ask,” “it’s not my responsibility,” and a similar blaming stance that “if they choose not to use condoms they’ll get it anyway, they already decided”). The latter is currently my greatest fear as I formulate the intervention – anecdotally, socially, and clinically, I often hear HIV+ men strongly insist that *only* positive men or men who are okay with positive partners are willing to have condomless sex. The vast majority of persons, particularly heterosexuals but many otherwise, often don’t use condoms. Blaming people for wanting the intimacy of full-on sex doesn’t seem to help, homophobic insinuations that gay men in particular must always and forever treat all partners as potential infectors are severely limited in impact and, I suspect, don’t foster the best of mental health in the gay community, and new research on sero-sorting says that most people who claim they sero-sort don’t – they sero-guess (a term I thought I made up, but recently learned an Aussie social scientist has promoted for years) – they assume partners who don’t ask, don’t tell, and don’t use condoms are the same status.

    So thank you, Abbie – I think this really is the next edge we need to approach in behavioral interventions. In metro areas like NYC or SF where 25% of men who have sex with men are positive, it’s not too much to ask and no loss in partners just to get men to disclose. Now how to do that….

  9. #9 Prometheus
    June 2, 2009

    My question is, how reliable is the method used in Texas? Compared to say finger printing or DNA analysis?

    Abbie needs to answer this but the present legal position is that HIV phylogenetic analysis is exclusive and only in tandem with circumstantial evidence probative.

    In other words it can prove you innocent by demonstrating unrelated strains but it can only support the probability of a specific transmission in concert with the limitations of geography opportunity history etc..

    Abbie needs to confirm whether this legal stance supports the current state of the science.

    Dr. Matthew wrote:

    (e.g., “they shouldn’t just ask,” “it’s not my responsibility,” and a similar blaming stance that “if they choose not to use condoms they’ll get it anyway, they already decided”). The latter is currently my greatest fear as I formulate the intervention.

    I think your fear is justified as Aziga, who killed at least two women, offered the defense of “It takes two to tango.”.

  10. #10 Brian Foley
    June 2, 2009

    With regard to the reliability of “DNA fingerprinting” and other genetic analyses of viruses or any other DNA: Any type of evidence is only as good as the chain of command used to gather and handle the evidence. Also, no evidence is conclusive on its own, it has to be backed up by the other cicumstances of the case. This was all very famously illustrated in the O.J. Simpson case.

    Every HIV-infected individual carries a set of viruses that is unique. Just as every human (even identical twins) has unique DNA. Some are much more similar than others (identical twins have DNA that is so close to identical that finding the unique sites is nearly impossible). The relationship of the viruses can be conclusive, depending on how the blood samples are taken, when the transmissions occurred relative to sampling time, and the methods used to sequence the virus (individual clones sequenced vs PCR-direct sequence, for example). The envelope gene is the preferred region of the genome for this type of analysis because it is more variable than the polymerase gene.

    This is not the first HIV transmission case to use phylogenetic analyses. The Florida Dentist case of the early 1990s was perhaps the first, and there have been many more since then, in many countries.

  11. #11 Paul Lundgren
    June 2, 2009

    It’s not just Texas, either. Check this out.

  12. #12 Joshua Zelinsky
    June 2, 2009

    I’m not generally in favor of the death penalty, but when someone like this rolls around I appreciate its use more.

    I’m incidentally curious if any creationists have any opinion about this matter. I wonder if they think he should have been let out since the evidence was based on evolution.

  13. #13 Brian Foley
    June 2, 2009

    Here are a few references for phylogenetics in HIV transmission cases:

    Molecular analysis in support of an investigation of a cluster of HIV-1-infected women.
    Robbins KE, Weidle PJ, Brown TM, Saekhou AM, Coles B, Holmberg SD, Folks TM, Kalish ML.
    AIDS Res Hum Retroviruses. 2002 Oct 10;18(15):1157-61.
    PMID: 12402955

    Molecular epidemiology: HIV-1 and HCV sequences from Libyan outbreak.
    de Oliveira T, Pybus OG, Rambaut A, Salemi M, Cassol S, Ciccozzi M, Rezza G, Gattinara GC, D’Arrigo R, Amicosante M, Perrin L, Colizzi V, Perno CF; Benghazi Study Group.
    Nature. 2006 Dec 14;444(7121):836-7.
    PMID: 17171825

    Signature pattern analysis: a method for assessing viral sequence relatedness.
    Korber B, Myers G.
    AIDS Res Hum Retroviruses. 1992 Sep;8(9):1549-60.
    PMID: 1457200

    Analysis of human immunodeficiency virus type 1 env and gag sequence variants derived from a mother and two vertically infected children provides evidence for the transmission of multiple sequence variants.
    Wade CM, Lobidel D, Brown AJ.
    J Gen Virol. 1998 May;79 ( Pt 5):1055-68.
    PMID: 9603320

    Evolution and biological characterization of human immunodeficiency virus type 1 subtype E gp120 V3 sequences following horizontal and vertical virus transmission in a single family.
    Sato H, Shiino T, Kodaka N, Taniguchi K, Tomita Y, Kato K, Miyakuni T, Takebe Y.
    J Virol. 1999 May;73(5):3551-9.
    PMID: 10196244

  14. #14 charles soper
    June 2, 2009

    Surprised to hear from our HIV physicians today, that medical disclosure of a patient’s status is never attempted here, even when the medics know that his or her partner is unaware. This is not consistent with other areas of medicine – an epileptic still driving can be disclosed against his will to the licensing authorities and banned – and the risks look similar if not worse to me. Bad guys like this are all too common.

    There are even cases where both partners are being treated by the same docs, both thinking the other doesn’t know they’re positive! There are also Italian farce-like situations where half the family know some about members and not others. Perhaps this is common in the US, but it looks to me like medical confidentiality gone mad.

    If someone refuses to warn their partner(s), the partner ought to be warned directly by health advisers, maybe as ultimate sanction their status should be published. (HIV reaches 1/80 general prevalence in some areas of S London – not that bad yet, but it’s rising, and we’re beginning to pick up some unexpected cases and late.)

  15. #15 Phil
    June 2, 2009

    I’m curious at the black and white image you present here, Abbie. It takes (at least) two to tango; the message which is unerringly hammered through to the gay community here in the UK is that your sexual health is first and foremost your responsibility. Always wear a condom; very few people know they’re clean – at most, they know they were clean a few weeks before they were last tested.

    Of course, people don’t always do as they’re told. The last time I had se, it was unprotected. I wasn’t drunk, I wasn’t forced, I was just horny and stupid. We didn’t even discuss HIV status beforehand – each assuming, I guess, that anyone willing to have unsafe sex must be serocompatible. It’s a dumb assumption, but people can be dumb. Afterwards, he said he was clean. I told him that, to the best of my knowledge, I was too. Maybe he was telling the truth as he knew it. Maybe he was lying. Either way, I could have pulled back and insisted on condom use. So could have he. I could have said ‘no’. So could he. We didn’t. That was our decision – a stupid decision, yes, but I have to take some responsibility for that. In a few weeks time I’ll know how stupid.

    I realize the dynamics in this case are very different, but the binary, black-and-white way you start this blog post jarrs me (and jerks me out of semi-lurker mode). Sexual behaviour, including the decisions people make and the risks people are willing to take, is complex and doesn’t reduce well to black-and-whites. There are a whole load of reasons for non-disclosure, as well as a whole raft of reasons why it might be socially unwise to increase the stigmatism HIV+ve people already face by placing all responsibility in any sexual encounter on their shoulders.

    And sorry for loser-length post!

  16. #16 Sascha
    June 2, 2009

    I rather meant in comparaison to good old fashioned “finger prints” and DNA analysis of say an accused’s blood or semen.
    I’m just a law student over here in Switzerland and found the post interesting – and very much tragic.
    Thank you for the links, I’ll see if my library allows me to access them – might have to trek over to the sciences library.

  17. #17 steve
    June 2, 2009

    @15: So one would be less responsible for a crime if he only exploited stupid victims?

  18. #18 phil
    June 2, 2009

    steve / 17 – don’t understand your point (sorry!). We each have to take responsibility for our actions. You cannot ‘knowingly’ infect someone with HIV. You can intentionally withold information – and you can intentionally not ask. Lying does add another layer of culpability, I’ll grant; but there is a difference between actively lying and witholding information. And I’m not all that certain lying pushes culpability squarely into one side of the domain (although I admit to not having given it much thought). I don’t see what intelligence has to do with it.

    I’m also aware that I’m possibly coming at this from a different cultural angle from some other people here (although I would never presume – and of course I can only speak for my own experience). In London (I think) 1/5 gay men is HIV+; 1/3 of those who are infected are unaware of it. When a condom isn’t used, you beat yourself up for days afterwards for being so dumb – no matter WHAT the other guy said. You should ALWAYS use a condom – period. The decision to NOT use one is not something you can shirk off to the ‘other guy’. Yes, people falter, people are not perfect, and people will go without – but the cultural assumption is that not wearing protection is taking a ride with the devil.

  19. #19 Sascha
    June 2, 2009

    Phil

    Of course you can knowingly infect someone with HIV.
    If I know I am seropositive and have unprotected sex with another who, as a result, is then infected, I will have knowingly infected that person.
    If I do not know I am seropositive and have unprotected sex with someone who, as a result, is then infected, I will have unwittingly infected that person.
    if I know I am seropositive and, hoping to infect someone, have unprotected sex with another who, as a result is then infected, I will have intentionally infected someone.

    The responsibility of the partner can bear on the sentence. If the partner made no attempt to ascertain the status of the accused or did not insist on a condom, one could infer consent as a defense. Here in Switzerland, consent is excluded if one partner did not know the other partner was seropositive. That includes withholding the information as well as lying about one’s status. Consent is only admissible if the one partner was correctly informed of the other’s status. I am not sure how other Jurisdictions consider the information of partners. Although I surmise most require active information if engaging in unprotected sex. Some, like Switzerland, will not require any information as long as a condom is used.

    The responsibility of the seropositive to divulge his status to potential partners is a heavy burden to bear, but given how serious an HIV infection is still today it is a necessary burden. The infection requires a greater awareness of the seropositive’s responsibilities.

  20. #20 SimonG
    June 2, 2009

    Charles @14:

    Surprised to hear from our HIV physicians today, that medical disclosure of a patient’s status is never attempted here, even when the medics know that his or her partner is unaware. This is not consistent with other areas of medicine – an epileptic still driving can be disclosed against his will to the licensing authorities and banned – and the risks look similar if not worse to me. Bad guys like this are all too common.

    I don’t know, but I would speculate that it’s because an epileptic could cause harm inadvertently. Someone who’s HIV +ve need not be a danger to anyone else; to assume otherwise would be to be guilty of prejudice. Innocent until proven guilty.

  21. #21 Katherine
    June 2, 2009

    Phil: do you cover your mouth and nose when others around you cough or sneeze? I get annoyed enough when my partner doesn’t warn me that they have a sore throat. If you know you have HIV you HAVE to disclose it, whether or not it is legal, whether or not they ask, otherwise you are assaulting them with a deadly weapon like the title says.

  22. #22 Katherine
    June 2, 2009

    Phil: do you cover your mouth and nose when others around you cough or sneeze? I get annoyed enough when my partner doesn’t warn me that they have a sore throat. If you know you have HIV you HAVE to disclose it, whether or not it is legal, whether or not they ask, otherwise you are assaulting them with a deadly weapon like the title says.

  23. #23 rrt
    June 2, 2009

    I’m not sure I understand your point, phil. Yeah, those lazy “victims” sure are shirking their responsibility, being all HIV+ and whatnot!

    I’m sorry for the tone, since you’re being quite nice, but I’m trying to get a point across. It seems insensitive to talk about this in terms of the victim’s responsibility. I would think the consequences of their actions are pretty hard for them to dodge, no? This isn’t about the victims in that sense. It’s about what the criminal did. He knew he was positive, and he claimed he wasn’t or never disclosed. He dodged a responsibility too, and in his case that dodging caused someone else permanent harm.

    Let’s look at this another way. Gangster A ventilates Gangster B. Should we say “well, B was asking for it what with his risky Gangster lifestyle” and reduce A’s sentence?

  24. #24 Rhology
    June 2, 2009

    Watching naturalists and atheists like you grasp about for coherent terminology to use to discuss moral issues like this can be quite amusing, and here y’all don’t disappoint.

    Precisely what biological structure convinced you that it’s wrong to infect someone else with a disease? How did you discover in the lab that acting in such a way to gratuitously reduce another human animal’s lifespan is somehow the wrong thing to do? What experiment did you run to conclude that knocking someone up and giving them HIV, thus perhaps precipitating their natural deselection from the gene pool, is worthy of some kind of condemnation from more enlightened primates? How many thousands of people did you survey to make sure that any appeal to your idea of “societal good and bad” agrees with what society really does believe and what really is good and bad for society? Or are you just running on emotion here, emoting that this guy is a sicko, having faith that your emotions are leading you to accurate conclusions, just like the creotards you like to mock so much in other topics?

    Peace,
    Rhology

  25. #25 scottE
    June 2, 2009

    24-Rhology: I think behavior alone serves just fine here.

    Not acting like a dangerous asshole as a social (and moral) proscription comes naturally to dozens of cultures.

    (BTW. I saw what you did there. You implied rhetorically that atheism is incapable of ascertaining morality. You are wrong. Of course, if other folk need additional reasons, they are free to invoke them–and more power to ‘em, but doing so has no bearing here.)

  26. #26 rrt
    June 3, 2009

    Your naturalistic fallacies are showing, Rho.

  27. #27 phil
    June 3, 2009

    Sascha – sorry, I made that comment without qualifying. I meant that HIV transmission is something which is variable on a number of factors, only two of which are status (duh) and protection. Not covering your mouth when you sneeze in a lift is not intentionally infecting people, although it could be classed as being somewhat negligent. I would take your last point and invert it: given how serious a HIV infection is, why the hell are people NOT using condoms?! Not doing so ALWAYS carries an implicit risk.

    rrt – I think it might be better to dissociate this particular instance from a more general case. My essential issue is with the first statement in Abbie’s post; it seems to display a simplistic attitude to a complex behaviour (sorry Abbie!). Do you ALWAYS disclose? From the first time you drag a new romantic partner into your room to some anonymous drug-mashed bang in a gay sauna?

    Sorry if none of this makes much sense, I’ve only just woken up.

  28. #28 Sascha
    June 3, 2009

    Phil
    Quite, the risk inherent in any behavior is inversely proportionate to the precautions taken when engaging in said behavior.
    But the issue here is behavior that is sanctioned by criminal law. Taking risks with one’s own health is only rarely criminalized, with the exception of illicit drug use.

    Taking risks with another’s health is as a rule criminalized and only permissible if consent by the other was given beforehand or can be inferred. Thus doctors require consent before giving treatment for example.

    The consent must always be informed, if you do not know what you are consenting to than your consent is invalid. In the case of unprotected sex, the seronegative partner can only consent if made aware of the status of the other.

    You are correct when you state that people who do not wear condoms when having sex are taken greater risks. But this in no way excuses the behavior of someone infected with HIV who does not divulge his status to prospective partners. His responsibility remains the same.

    The factors of status and protection are of such great importance that all other factors barely weigh in the balance.

  29. #29 Rhology
    June 3, 2009

    25-scottE,

    Behavior alone doesn’t tell anythg about the morality of it. Dropping a Molotov cocktail into an orphanage is behavior, just like petting a cute puppy. That’s my point.

    You implied rhetorically that atheism is incapable of ascertaining morality.

    Nope. Please try again.

    26-rrt,

    Your naturalistic fallacies are showing, Rho.

    Mine? How so? I’m not the one trying to wrench OUGHTs out of IS-es.

  30. #30 rrt
    June 3, 2009

    What Sascha said. :)

    I’d add that yes, I would extend some form of that responsibility to disclose upon that person for most, if not all, STDs they might have. I don’t see how the circumstances you describe would affect that. The person would still be recklessly endangering others, regardless of how foolish those others are being, unless they made an informed choice.

  31. #31 LanceR, JSG
    June 3, 2009

    Rho, that you would even *make* such a comment on this topic disgusts me. You are an asshole.

    People here tried to engage you politely in previous threads. Erv even gave you your own thread. Trying to use the suffering of HIV patients to pull some “gotcha” rhetorical point about naturalism? You really are an asshole.

    You know nothing about reality. You are blinded by your own prejudices. You have been told repeatedly that your characterization of “atheist morality” is nothing more than a straw man fallacy that exists nowhere but your own mind. And still you persist.

    Go away, little man. You disgust me.

  32. #32 Prometheus
    June 3, 2009

    Sascha wrote,

    “I rather meant in comparison to good old fashioned “finger prints” and DNA analysis of say an accused’s blood or semen.
    I’m just a law student over here in Switzerland and found the post interesting – and very much tragic.”

    *lawyer fist bump*

    Switzerland and the Scandinavian counties have far gentler penalties, as you stated but they are very legally proactive to the point that one in every 100 HIV positive individuals has been prosecuted for potential transmission.

    The approaches are, the big scary publicized example as deterrent versus the “broken window” approach (a tap on the shoulder for every instance).

    It is an interesting distinction in the application of law for social engineering.

    Rho wishes us peace and queries:

    “Precisely what biological structure convinced you that it’s wrong to infect someone else with a disease?”

    The crinkles of a collection of evolved cerebrum playing footsie with hedons, dolors, the utilitarian balancing act, the existential proposition of the limits of freedom, a determination of what constitutes a sufficient deterrent/rehabilitative/social onus and 4000 years of legal philosophical theory played out in the crucible of human culture.

    Or in your case, the pineal gland because that is the seat of your immortal souls and where, according to Descartes, Yaweh strapped on your shock collar for zaps when you go poopies off the newspaper.

    Phil@15

    You are kind of getting clobbered and I wish you would refrain from dancing in the rain without your wellies but your stance is in direct accord with a lot of human rights organizations that feel that the creation of a social onus against high risk behavior is a sufficiency.

    I don’t know what it would do to us culturally if we could “beyond a reasonable doubt” establish a network of identities and transmission events.

    Is it more destructive than not knowing?

  33. #33 Sascha
    June 3, 2009

    I’m wary of responding to your fist bump, lest we appear on Fox news as yet another example of the spread of evil in the world. Aw heck, *jurist fist bump* – long way yet to the bar for me.

    Do mean to say that prosecution of seropositives is lower than in common law countries. I wasn’t aware of that. It would explain the very vocal resistance coming from activists in the field here in Switzerland.

    Here in Swityerland there is great fear that criminalizing transmission might lead more people to forego testing altogether. They would then automatically benefit from the reduced if any sentence for negligence. Combined with the alleged HIV fatigue spreading in many younger circles, this is cause for concern. The great difficulty is bringing together the needs of society as exclusive holder of civic power and the needs of society as garantor of public health. The two interests often seem to be pulling in opposite directions.

  34. #34 Prometheus
    June 3, 2009

    Prosecution in the American judicial system is often very discretionary and prosecutors are elected officials.

    Any HIV case is still a political time bomb so they will usually drop the criminal complaint into limbo until the time to file charges runs out.

    My district attorney went to an Arkansas congregationalist college on a football scholarship and thinks musical instruments are a tool of the devil.

    When one goes to trial the circumstances are usually egregious (apparent predatory sociopath) and they will try and run it in the harshest penalty category so they can amp up the deterrent effect by making an example.

    “spreading human diseases” is, I think, the Swiss legal portmanteau that encompasses the offense and even though the penalty is five years or deportation to countries where treatment is not available (death sentence) all 26 Cantons pursue it as a public health issue rather than harm to a specific individual.

    P.S. Our neighborhood ACLU lawyer who works with Amnesty International says Sweden is number one in prosecutions in the European Union with Switzerland a close
    second.

    He says to read this:

    http://www.gnpplus.net/component/option,com_docman/task,cat_view/gid,243/Itemid,53/

  35. #35 phil
    June 3, 2009

    Sascha: Thanks for the lucid response. You’ve crystallized what I believe to be a central issue here – one of implied consent.

    This is a tricky one. I can’t cite sources but I have a feeling that gay men in the UK tend to assume that anyone willing to have sex without a condom is serocompatible (if that’s the word). This might come about for a number of reasons, but one possibility is (I guess) the high/very high number of HIV+ve individuals. HIV is kind of ‘normalized’ – if that makes sense? – to the extent that an assumption of status is always seen as taking a risk.

    I think we enter very dangerous territory when we start criminalizing people for the transmission of a virus, especially a virus which already leads to people being shunned. To expect every HIV+ve person, every time they have sex, to disclose or face a prison sentence, is a notion I find chilling. I can’t see it doing anything other than perpetuating the ‘us vs them’ cycle which makes people uncomfortable about disclosing in the first place, portraying HIV+ve individuals as somehow predatory and to be feared, and – most perverse of all – placing responsibility for HIV-ve people’s status in the hands of people who are HIV+ve.

  36. #36 rrt
    June 3, 2009

    I’m picking up a lot of that fear of stigma, phil, and I certainly agree that would be undesirable. I guess it could happen, but I don’t really see it when the point would be “did you know? Did you fail to take the responsibility of informing your partner?” In the sense of where the wrong act is committed, I don’t care about transmission, I care about who knew what when.

    I’ve gotta say, too, that I’m having one HELL of a hard time seeing how an HIV+ person could EVER in good conscience have sex without disclosure.

  37. #37 phil
    June 3, 2009

    Through implicit assumption of consent to expose oneself to risk. In a city where 1 in 5 potential partners are HIV+, it’s a reasonable assumption, along with the assumption that both / all partners are HIV+ve (to answer your last point). Transfer this situation over to a sex club environment where people are having sex with multiple partners, often under the influence of a variety of drugs, and actively ignoring the free condoms available (I have seen this and it’s deeply troubling), then the notion of ‘implied consent’ gets very tricky.

    I’m going to (try to) stop beating this horse now, as I feel I’m edging on to the edge of my knowledge and ability and don’t want to just recycle the same points. Still, it’s been a very enjoyable discussion.

    I will probably fail to not reply to further posts, however ;-)

  38. #38 Prometheus
    June 3, 2009

    Phil

    Here is the CPS policy paper for the U.K.

    http://www.cps.gov.uk/publications/prosecution/sti.html

    I do think Britain needs a actual statute instead of mangling a law written around the time of The Opium Wars.

    I also don’t understand how the Swiss National Aids Commission can say “HIV positive people taking ART and without sexually transmitted infections (STIs) are not infectious.”(I think??…. my French sucks) while they are prosecuting thirty people a year without regard to whether transmission actually happened.

    Whacky

  39. #39 Sascha
    June 3, 2009

    The statement by the Swiss federal commission on AIDS concerning the low level of infectiousness is fairly controversial in other countries such as France. But the medical profession here seems fairly confident about this. IIRC the conditions were following a strict regimen of ART (no lapses) under close medical supervision, six months with no detectable viral load and no other STD’s. This really only concerns a very small pourcentage of the Swiss cohort. It is aimed at stable discordant couples where the negative partner might wish to have unprotected relations with their life partner. Nota bene, the commission said low risk of transmission comparable to every day risks or those involved in oral relations, not no risk.

    The prosecution would not concern seropositive people falling in this restricted category, but given it is still very recent I don’t know how it has influenced the prosecution of seropositive people. I found other references to the “very repressive” (sic) criminal law situation in Switzerland. I do remember one case where the seronegative wife consented to unprotected sex in full knowledge of her spouse’s status. The court still convicted the husband of transmitting a human disease. As this disposition protects the public health, consent cannot be given. Switzerland allows for parallel charges of bodily harm as well as transmission of a human disease. Both charges apply even in cases of negligence.

    The Swiss Aids Help, an activist organization, is pushing for a relaxation of the criminal code, but they seem to be swimming against the tide as most Swiss appear to favor harsher sentences overall. just finished watching the debates in the Federal Parliament. I just found out the supreme court has confirmed that one may be charged even if HIV status was unknown or if there was no transmission of the virus. It does seem harsh, even given the mild sentences given. 3 years at most for negligent bodily harm and negligent transmission. This is a decision from last year but the server is down so I haven’t read the decision yet.

  40. #40 William Wallace
    June 3, 2009

    Great points, Rhology, as you know by the lack of substantive responses.

    Regarding inherent risk, interesting. I just read that in California a batter cannot sue (and prevail) a pitcher even when a pitcher intentionally beans a batter.(Avila v. Citrus Community College Dist. (2006) 38 C4th 148) This is a risk in the game. (It doesn’t stop baseball brawls, though).

    Likewise, in this case, regardless of whether or not there should be legal consequence, there should certainly be consequences, at least from time to time.

  41. #41 minimalist
    June 4, 2009

    Great points, Rhology, as you know by the lack of substantive responses.

    oh hey look, a dumb guy who posts the same crap repeatedly and ignores/fails to comprehend all substantive responses until the only sane response is to just say “go away dumb guy”, posting in support of another dumb guy who posts the same crap repeatedly and ignores/fails to comprehend all substantive responses until the only sane response is to just say “go away dumb guy”

    and here’s me being all surprised on the internet: :O

  42. #42 Prometheus
    June 4, 2009

    Sascha,

    Can you find a better and more complete translation of the Swiss Commission statement because I would really like Abbie or Brian Foley to comment on that conclusion.

    Particularly interested because it is a summary of the the larger study that was published in Bulletin des Médecins Suisses

  43. #43 a lurker
    June 4, 2009

    Abbey quotes the article as saying “Padieu himself also took the stand, saying he was a victim of overzealous prosecutors. He said the women who accused him had all had multiple partners.”

    Lets ignore for a moment that the phylogenetic analysis of the DNA testing shows that the HIV that infected the women came from him….

    I would say to Mr. Padieu, “Big so [censored] what?”

    What this person is saying is very much equivalent to: “Well I took a shot at the deceased but missed and the next shooter got him. So you see, you honor, that I am a totally innocent man.”

    That someone else willfully endangered someone’s life does not excuse one’s own actions of willfully endangering someone’s life. And yet this sort of defense seems common when sex is involved. (And in this case hypocritical: if the women where “sluts” then so is he.)

    On a related rant, I would say that he is just a guilty even if the deceived sexual partner got lucky and was not infected. Much like I think that attempted murder should have the same punishment as successful murder though with caveat that attempted murder in some circumstances would be harder to prove.

    In any event this man did provide the HIV, he lied to multiple partners so he could endanger their lives for the sake of his sexual fulfillment, his testimony demonstrates beyond any doubt that he just does not get it, and he has a prior conviction for armed robbery. A very long sentence is very much justified. He should be locked up until he simply can’t do it again.

    Prometheus brings up quarantine. Indeed if the judicial system could not take care of him, that might be worth looking at. And it would still be his fault. After all Typhoid Mary was locked up not merely for being typhoid, but for willfully disobeying the orders of health officials. (Though admittedly from a modern point-of-view, they should helped her get an alternative means of employment.)

  44. #44 Prometheus
    June 4, 2009

    Lurker@43

    I understand how you feel.

    Padieu and Aziga are monsters.

    Mary Mallon was also apparently a monster(infecting an additional 25 people one of whom died after being released from quarantine on the promise she never work as a cook again, public health officials got her a job as a laundress, she decided to cook at a Women’s hospital under an assumed name because “the money was better”).

    When monsters are punished it is aesthetically gratifying.

    There is an indication however that racists and homophobes in positions of political power may be using the precedent to enforce an underhanded immigration and oppression policy based on bigotry in northern europe.

    What happens now that this rather crude weapon has dropped in the laps of politicians here in the USA….The Land Of Supersized Jesus?

    If they are being dicks in Sweden what the hell is going to happen in Alabama???!!

    In my county a registered nurse with a background in stop smoking campaigns (and a nice lady) has the governmental authority to lock me in isolation and burn down my block on suspicion of syphilis.

    I’m not real comfy using quarantine statutes as a deterrent.

  45. #45 Sascha
    June 4, 2009

    Prometheus

    There might not be any translation. There was none on the OFSP (Federal public health office) site and I wouldn’t know where else to start looking. I’m much more at home in legal journals than medical journals. The Swiss Doctors Bulletin doesn’t have an english version?

    I did drop a mail to the Commission, but there won’t be any answer until next week as it’s a holiday on Monday. Don’t hold your breath though.

  46. #46 Sascha
    June 7, 2009

    Prometheus

    The Commission has a translation of the “Swiss Guidelines” and, if you contact them at the address at the bottom of the home page of the commission and explain your purpose they will send you a copy. It’s not meant for publication nor to be cited as it’s only an unofficial translation.

    Hope that helps you further.

  47. #47 Prometheus
    June 8, 2009

    Sascha,

    Thank you. I am not qualified to assess the apparent conclusions of the Commission but I will find someone who is.

    If reasonable it is a nice counterbalance and limitation as it would appear to arm the accused with an affirmative defense.

  48. #48 red rabbit
    August 3, 2009

    I don’t know that anyone is still reading this thread, but as a response to charles @ #14, most places have something called “a list of reportable diseases.”

    Any positive chlamydia, HIV, gonorrhea, TB, measles, etc. test is reported to local public health by either the physician and/or the laboratory involved. For STIs, there is a partner-tracing protocol which comes into play, though most physicians will attempt to get the person in question to disclose first.

    That’s how it’s been anywhere I have worked in the first world at any rate.