Friday, 19 June 2009

Using HIV as a weapon

My heart goes out to the victims of Glenn Mills, the Aucklander facing charges of 'wounding or attempted wounding with reckless disregard, infecting with a disease and attempting to infect with a disease'. Diagnosed with HIV in 2007, Mills continued to practice unprotected sex with a number of people who did not know he carried the infection.

What Mills has done is clearly repugnant. But it's times like these that I wish I'd studied the law, so I could better understand what exactly Mills has been charged with, and why - particularly the charge of 'attempting to infect with a disease'. This charge suggests that Mills actively intended to harm at least one of the people he slept with, and it seems like this would be difficult to prove (as opposed to negligence in failing to alert his partners that he had HIV).

It seems there are a lot of scenarios around sex that could lead to harm, through malice or negligence. For example:

- a person might deliberately set out to pass on their HIV infection (God only knows why)
- a person might know they have HIV, but be negligent about telling their partner, for a number of reasons ranging from fear of rejection to simply not caring about their partner's welfare
- a person with HIV might be under the influence of alcohol or something else, and make a bad decision to have unprotected sex
- a person might have good reason to believe they've been exposed to HIV, but choose not to be tested - so if they passed the virus on, they couldn't be accused of doing so knowingly

In all these scenarios, the person who transmitted HIV to a partner would be morally culpable - but should the law distinguish between different 'levels' of culpability? And if so, how could that practically be done? The difficulty of proving the intention of someone in Mills' situation, and therefore of prosecuting him successfully, might make it tempting to pose blunt 'solutions' - for example, that HIV positive people simply shouldn't be allowed to have sex.

It's hard not to share the outrage of the gay community, at this man whose actions have done such incomprehensible damage to the people he's infected. In the linked article, Bruce Kilmister of Body Positive (an HIV support organisation) says, "But it's also a timely reminder that everybody has a responsibility to keep themselves safe and follow safe sex practice". Safe sex is crucial, of course, but it's also crucial that the Mills case doesn't become an exercise in victim-blaming, with homophobic overtones. An it's also important that Mills' behaviour doesn't prompt a backlash against HIV positive people, who have the same needs for affection, companionship and intimacy as the rest of us.

30 comments:

Anonymous said...

Reasons why someone would act as he does could be lack of understanding, but it could also be anger/vindictiveness because they were infected themselves and they are 'getting their own back' or simple denialism that HIV caused AIDS(such as that seen in South Africa). After all if you believe being HIV positive doesn't mean anything, it doesn't matter about protecting anyone else. I'd be very interested to see which one it is, but have to wait until the charges are heard in court to find out.

I think it's pretty simple, the person concerned clearly knew he had a (incurable) communicable disease and engaged in behaviour known to risk transmission of that disease. There is no indication in the news reports that he used protection which even if he didn't want to tell he could have done to protect what seems to be a fair number of people he had sex with and who have subsequently been infected with the virus. This is not victim blaming, it's the facts and living with the virus he should have known what impact it was likely to have on his victims. That he ignored this and had unprotected sex with unwitting people up and down the country means this was reckless disregard for these other peoples health. Managing to live with HIV doesn't = no sex life, this can be altered so that either they have less or monogamous sexual partners who know the score and can make choices regarding protecting themselves from the HIV virus and they can behave in a way that lessens the risk of transmission.

Anna said...

I should clarify the victim-blaming remark - I was actually thinking of Mills' victims, rather than Mills themselves. I would hate to see a lack of compassion shown to them because they engaged in unprotected sex. I completely agree with you, Anon, that Mills should not have had unprotected sex. But normally the law distinguishes between causing harm deliberately to someone, and doing it negligence. That's where this seems tricky - someone's intent in a sexual encounter is pretty hard to know.

FAIRFACTS MEDIA said...

Considering HIV still leads to death, Mills is committing nothing short of attempted murder.
His weapon is a loaded weapon as deadly as any Colt 45.

Christina said...

This article (sorry don't know how to embed link) covers the issues of culpability you raise pretty well, with reference to the 1993 Peter Mwai case -
http://www.gaynz.com/articles/publish/5/article_7518.php

Anonymous said...

He didn't have to tell his victims he had HIV. He just had to insist on using a condom.

Anna said...

Thanks for the link Christina - will follow that up.

Cactus Kate said...
This comment has been removed by a blog administrator.
Anna said...

Cactus Kate, I couldn't really let the comment about physical violence stand - but feel free to repost the rest of the comment.

Paul said...

I'm with Fairfacts Media on this one. There is no complexity here: if he knew he was HIV Positive and he practised unsafe sex, then he is no different from a poisoner.

Cactus Kate said...

Oh for goodness sake...this guy deliberately and intentionally and with forethought and planning attempted to infect HIV into others.

You shouldn't hate him for being gay/bisexual or whatever he is. He should be despised for being a murderer, albeit slow painful deaths.

Condoms fail and therefore the failure rate means every HIV positive person must tell their partner they are HIV positive. Anon 10.41pm therefore is incorrect.

Obviously this will eliminate most of the sex they will ever have, but who cares?

My comment originally was that now this creep's name has been made public, having HIV is the least of his problems.

Anna said...

If my partner was HIV positive I'd certainly want to know, because of the possibility of condom failure - no matter how safe the sex was. I'd assume most people would feel the same way. Should it be a criminal offense not to tell someone of your HIV status though? It's an important aspect of informed consent, but the corollary of it would be HIV positive people declaring their status in any situation where transmission is possible.

I'm vaguely thinking of Greg Louganis, when he cracked his head on the diving board, but didn't tell the people patching up his wound that he was HIV positive. Morally, he should have - but it was hard not to feel sorry for the guy, who was under media scrutiny at the time, and would have been terrified of persecution by the media and public.

Admitting to being HIV positive certainly would cut back a person's casual sex encounters, although not necessarily sex in a long-term relationship. But one of the many sad things about this case is that it may produce a knee-jerk fear reaction against HIV positive people, reminiscent of the 80s. That takes the attention of the public away from supporting people with HIV and managing risk of transmission while still enjoying a sex life.

Anonymous said...

"Obviously this will eliminate most of the sex they will ever have, but who cares?"

Um it's not their fault they have HIV. Why have you got so much vitriol for people with HIV? You can be born with it you know. You can get it nursing.

There are heaps of people with HIV who didn't get it through unprotected sex.

Hugh said...

Anon, the ability to have regular sex is not generally considered a right.

See rape, etc.

Anna said...

Anon, I appreciate that you're arguing for showing compassion for people with HIV, but I think that it's a mistake to go down the road of implying that people deserve more or less sympathy depending on how they got the virus. It's bloody awful, whether you get it from breastmilk or sex.

That's a different issue from how people with HIV go on to treat their sexual partners - but if we imply people who've contracted HIV through sex are less deserving of compassion, we make it more likely that they'll be ashamed or afraid to be honest with their sexual partners.

Anita said...

I agree with everyone today :)

I agree that judging the culpability of the person with HIV and then having compassion in reverse proportion is not how we should be.

But I also agree with Anonymous' original criticism of Cactus Kate's comment. Why should we care? Because they're human beings and we feel empathy.

Being diagnosed with HIV is beyond awful on so many levels, giving up on ever having sex (and the intimacy and comfort that it can bring) would be another piece of sadness and exclusion.

It doesn't matter than sex isn't a right, every loss of possibility is a loss.

M-H said...

The Greg Louganis case is not relevant. All medical and nursing staff should treat every patient as if they have a blood-borne disease. That's called 'universal precautions' and if it's followed staff protect themselves, as well as protecting patients from any diseases that they themselves might be carrying.

This man is a murderer. He didn't have to disclose his status - all he had to do was insist on safe condom use, and refuse to have sex with people who didn't want to comply. And to protect themselves, all they had to do was refuse to have sex with him if he wouldn't comply.

Of course there will be victim-blaming, but let's face it - they took the risk, which they probably judged as small, and it didn't pay off. They do bear some responsibility, which will transmute to blame in some people's eyes.

Anna said...

Mills isn't a murderer - no one has died from his actions, and medication may be able to prevent the people he's infected from developing AIDS. That's not to downplay the seriousness of what he's done, but I don't think it will help his victims psychologically to be thought of, or think about themselves, as necessarily having a death sentence.

The Greg Louganis case isn't the same legally, or in terms of transmission risk, but at the time it happened, risk transmission wasn't well understood (I'm not sure it is now, either). The public perceived Louganis had a moral responsibility to let people know about his HIV status, and he later conceded this - but he was afraid to meet what he thought was his responsibility at the time.

The point I was trying to make here is just a public health one: if people feel likely to be persecuted by a public that doesn't understand HIV risk properly, then they'll be less likely to be upfront about their health status. It's not a good thing (and it doesn't necessarily explain Mills' behaviour), but it's just how it is.

And Cactus Kate makes the very fair point that insisting on safe sex doesn't necessarily protect your partner from HIV, given the condom failure rate. If we want people to be that honest about their personal business, we need a society that's well-informed about HIV/AIDS transmission, and not inclined to treat HIV like they should be in leper colonies.

Paul said...

No-one has died yet, so far as you know. And yippy-yi-yi-yay, medication may be able to prevent his victims getting AIDS.

This is not a health issue. There are some who pass on HIV unwittingly, despite all the public health messages. But Mills is not one of them; he treated his multiple sexual partners as meat. I expect he wanted to infect them.

Greg Louganis had a moral responsibility to tell the medics he was HIV positive and they had a similar responsibilty to keep his confidence. I have little sympathy for people who endanger the lives of those who are helping them.

I think there are better causes than this one you could fight; although, given the recent 'lets be culturally sensitive to South African rapists' post, I am beginning to wonder what the Hand Mirror will come up with next.

Anna said...

Paul, I don't appreciate either your willful misreading of what I've written, or the sarcasm of your comments. If you don't like the posts, don't read them, and if you can't manage to comment in good faith or with a respectful tone, don't comment.

Anonymous said...

I don't believe we should have any less compassion for people who get HIV through unprotected sex. I never said that.

But Cactus obviously believes that to be true that's why I mentioned it.

And Hugh get over yourself. Saying we should have compassion for people with HIV has nothing to do with rape. I was merely trying to say that a comment of "who cares" is cruel.

I never said shit about people having the "right" to have sex.

AWicken said...

Ahh, legislation.govt.nz, how you whittle away my hours...

Okay, given the lack of a death (so far) from the actions of Mr Mills, murder is out as a charge.

Crimes Act 1961 maximum sentences:
s201 Infecting with disease = 14 years.

s188 Wounding with intent = 7 years for "reckless disregard"

s173 Attempt to murder = 14 years

SO:

at a wild guess attempted murder is not an easy, as he can argue that he didn't intend for anybody to die from AIDS (it's treatable).

Same length penalty for infecting with disease, so it's not a material difference to him, BUT the Crown needs to prove he *intended* (wilfully) each specific person to contract the disease. It probably also has a case history going back to TB etc, so might not have been tested in a while (just looking at the act here, not case law).

Hence the fallback position of "wounding with reckless disregard". 7 years, but it's a catch-all if the primary s201 charge fails, is my guess.

And the case hasn't been tried yet, BTW, so he might have a reasonable defence.

Hugh said...

I'm pretty sure there has been at least one other person charged with this sort of thing within NZ - an African bloke, from memory, in the late 90s. Anybody remember that? Anybody know what he was charged with?

Anita said...

A Brookers... :)

Adams on Criminal Law says, of s201

It is not enough that the causative act was deliberate. “Wilfully” means that the accused intended to cause or produce the disease, and recklessness is not sufficient: R v Mwai [1995] 3 NZLR 149; (1995) 13 CRNZ 273 (CA), at p 152; p 277; compare CA20.26. As to whether a disease may constitute grievous bodily harm under s 188, see CA188.02.

Anna said...

Are you a legal type, Anita? If so, can you give a run-down of the Mwai case for lay people?

And does anyone have an opinion on whether the Crimes Act is actually up to the task of dealing with HIV - or is new legislation needed? I guess that yet another complexity of a case like this is that we don't know what the end result will be of HIV infection for Mills' victims. It's possible that some will die, making Mills a murderer - but that could be many years in the future. All of the victims will suffer a huge loss in their quality of life, but for some it will be greater than others - and a lot of the suffering they experience may be to the prejudices of other people, rather than because of their HIV status.

I noticed (with horror) that some 30 more people have come forward for HIV tests in relation to the Mills case - the damage he's caused could be much further reaching.

Anita said...

I'm not a lawyer, my main skill is that I can find my way around databases :)

I can grab the case report for R v Mwai and make it available if people are keen. It's pretty easy reading.

A quick summary tho. Mwai was HIV positive and had unprotected sex with a number of women, one of whom contracted HIV, another was diagnosed with HIV but may have contracted it from someone else.

He was found not guilty under s201 (Infecting with disease) because his actions were not wilful in that he didn't appear to fully understand that he had HIV and/or what HIV was and/or that unprotected sex could infect someone.

He was found guilty under s188(2) (reckless disregard for the safety of others causing grievous bodily harm) for the woman who contracted HIV.

He was found guilty under s145 (criminal nuisance) on each of 5 counts (one for each of the five named women he had unprotected sex with). The judgement appears to be that having unprotected sex when HIV positive without disclosing the HIV status breaches the duty of care.

He was sentenced to 5 years for the GBH plus one count of criminal nuisance (for the woman infected) and 6 additional months for each of the other criminal nuisance charges.

Anita said...

I finally managed to dig up a story from 9-10 years ago which I could only half remember. I think this story has every possible kind of awful, sorry.

In 1999 an Christopher Truscott HIV positive intellectually handicapped man who had worked as a prostitute was found guilty of four counts of criminal nuisance for failing to disclose his status to men he had unprotected sex with.

He was then locked up under the old legislation used to confine TB patients because his intellectual disability gets in the way of him understanding the situation, and he would continue to have undisclosed unprotected sex if left free. He managed to escape six times, going back to places he had found sexual partners in the past.

He was describe in the media as terminally ill in late 2004.

On the one hand it looks like we have legislation that works (although awkwardly).

On the other, a whole bunch of men had unprotected sex with an intellectually handicapped man incapable of understanding the risk he was taking. One killed him by infecting him with HIV.

Anna said...

That is heartbreaking in so many awful ways. I don't get how he could be deemed culpable enough to be charged with criminal nuisance, when he was also confined on the grounds that his intellectual disability prevented him from fully understanding his situation. I don't have a problem with the confinement aspect if it was needed to protect the health of the public (and the circumstances were decent and humane), but it doesn't seem to fit with the criminal responsibility part.

Anita said...

*nods* :(

I've spent most of my disability advocacy time on mental illness not intellectual disability, but there are parallels in terms of the state's response (which is why I was aware of this case at the time).

It is not at all unusual for mentally ill people to be charged with crimes they are obviously not culpable for, it's a mechanism to hold them until a CTO or other treatment plan can be sorted out. So I'm not particularly surprised his was charged with criminal nuisance.

It's rarer, however, to follow through with the case. I'd guess they did it because he was non-compliant and they had some hope that he might take it seriously if he went to court (HIV is a more abstract concept than Police and court and jail, so their hope isn't entirely unreasonable) *sigh*

There are huge issues around culpability, consent and similar concepts for people with intellectual disability (more so that mental illness where the state's first response is always to medicate into passivity) as intellectually handicapped people can and do make genuine decisions from a very different reference point than the rest of us.

I should have said that at least his later confinement was managed by a very reputable provider of services to the mentally ill, with a small service provision to the severely intellectually handicapped. I have some hope that his last few years were as good as they could reasonably have been.

AWicken said...

Shoot,

this entire thread is one of those situations where I'm fascinated by the procedural intricacies and mechanics involved, but really have to try to avoid the broader picture or I become really glum.

A bit like the physics of weapons.

M-H said...

OK, so he's not technically a murderer because no-one has **yet** died. But with 30 more people coming forward, there's unlikely to be a magic bullet for all of them - anti-virals only work with recent infections.

I agree that this is not a health issue; it's a criminal issue. But it's not true that people have a moral obligation to disclose health problems. Someone who's infectious has a moral obligation to prevent their infection spreading (I believe that many gay men routinely now use two condoms for this reason), but if they don't need to disclose to do that they shouldn't have to.

Life is risky; we all take risks all the time. What we all can do is try and find out how to reduce those risks and act accordingly. If this attitude became more common, it might help to break down the appalling blame culture that seems to run so much of public debate.