by Edwin J. Bernard
http://www.aidsmap.com/en/news/96D8F74F-0156-45BC-A886-C23735357BDF.asp

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Man sentenced to nine years for 'reckless' sexual
transmission of HIV and HCV in Scotland (updated)

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Edwin J. Bernard, Thursday, April 05, 2007

A Glasgow High Court today sentenced Italian national,
Giovanni Mola, to nine years in prison for the
'reckless' sexual transmission of HIV and hepatitis C
to a former girlfriend.

Mr Mola was found guilty in February. Details of the
case were reported here. It was the first time that
anyone has been successfully prosecuted for the sexual
transmission of hepatitis C, and the second successful
Scottish prosecution for the sexual transmission of
HIV.

In his sentencing statement, Judge Lord Hodge appeared
to have some issue with current expert medical opinion
which suggests that condom use without disclosure is
acceptable. "Standing the advice that you had received
from medical practitioners that you did not have to
disclose your viral status if you took care to wear
and use a condom properly, I do not consider that you
can be judged to be criminally culpable and reckless
on the ground only that you did not disclose your
viral status. It is not for me to judge whether the
medical advice which you received was appropriate.
Non-disclosure of viral status and then sexual
intimacy when using a condom may expose a partner to a
relatively small risk of infection to which she has
not consented. But medical practitioners are no doubt
very aware of the damage to an infected individual
caused by social isolation. As I say, it is not for me
to judge the medical advice that you received."

(The full text of Judge Lord Hodge's statement can be
downloadedhere.)
http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/05_04_07_mola.pdf

His opinion stands in contrast with Wellington
District Court Judge Susan Thomas who, in a
groundbreaking 2005 ruling wrote: "...as far as public
http://www.aidsmap.com/en/news/99FCF282-21EF-4ED5-99FC-B3A9E2E1A110.asp
health needs are concerned, the steps necessary to
prevent the transmission of HIV can be met without the
requirement for disclosure. In other words, the use of
a condom for vaginal intercourse is considered
sufficient."

Deborah Jack, Chief Executive of the National AIDS
Trust (NAT), said that although NAT does not condone
Mr Mola's actions, and "strongly advises all people
living with HIV to protect sexual partners from
infection", they "are particularly concerned at the
severity of the sentence. Sending Giovanni Mola to
prison is not the way to deal with the HIV epidemic in
Scotland and is likely to only make it worse."

Ms Jack added that "it is important to understand that
prosecuting people for reckless transmission of HIV is
actually undermining efforts to stop the spread of
HIV. Stigma and discrimination around HIV is
increasing as people living with HIV are cast as
criminals, making it even more difficult for them to
tell other people."

She also noted that criminal HIV transmission
"prosecutions are also undermining efforts to
encourage people to take responsibility for their own
sexual health, by implying it is the sole
responsibility of the person living with HIV to have
safer sex. People may also be discouraged from getting
tested and learning their status for fear of being
prosecuted."

HIV Scotland's Roy Kilpatrick concurred when he told
BBC Online that prosecutions for HIV transmission "run
counter to the interests of public health in Scotland.
"We have built up a culture of voluntary testing in
this country and we have concerns that this case will
discourage people from being tested and learning their
status because they are scared of prosecution."

Next week NAM will publish a new book, Criminal HIV
Transmission, aimed at individuals who work within --
or are in contact with -- the criminal justice system.
Until now, no single resource has provided an overview
of the issues; NAM's new book aims to bride that gap.
The book should be useful to anyone who requires
up-to-date information in clear, layman's language
about the science -- medical, clinical, social,
epidemiological, and forensic -- of HIV transmission as
it relates to the criminal law.

The preface, written by South African Supreme Court
Justice Edwin Cameron, notes that "the criminal law's
use lies in denouncing and punishing unacceptable
behaviour that causes harm or exposes others to harm.
But what we consider 'unacceptable behaviour' and
'harm' depends on society's values, on current
attitudes, and on legal and constitutional principles.
The most important determinant of these should not be
fear, prejudice and stigmatising preconceptions. It
should be good, up-to-date, well-presented and
scientifically-based, medically sound information
about HIV and the AIDS epidemic. It is for this reason
that I am pleased and proud to be writing the preface
to this book... The book is written clearly and
comprehensibly, and provides a meticulous overview of
HIV-related medical and social science, and law."

Criminal HIV Transmission (single copy price L34.95;
bulk discounts available) is available from NAM (phone
020 7840 0050 or via email, info@nam.org.uk).
info at nam.org.uk
http://nam.org.uk

http://www.aidsmap.com/en/news/96D8F74F-0156-45BC-A886-C23735357BDF.asp
by Edwin J. Bernard