World AIDS Day: Infection As Crime

It's complicated . . . .

It’s complicated . . . .

On World AIDS Day I take a look back at a 2006 case of deliberate HIV transmission, and ask if we’re handling things any better now.

…………………………….

My good friend James Newburrie recently wrote about a man who tried to deliberately infect him with HIV (James insisted on protected sex but his contact stealthily removed the condom during sex). He argues that experiences like his mean we should not repeal Section 19A of the Crimes Act Victoria, which makes the deliberate transmission of HIV a crime.

Predictably, the AIDS industry does not agree. The AIDS councils, the HIV peer support groups, even so august a personage as Michael Kirby, all argue that the criminalisation of HIV transmission only drives pos people underground and makes them harder to find and treat. It’s a very powerful argument.

And it’s true that the vast majority of HIV positive people behave responsibly, always disclosing their status to potential partners, always using protection (though more about that later). Nevertheless, a small number do aim to deliberately infect others, and it does no-one any favours to pretend they do not exist, however much we might wish they didn’t.

Read James’s Story at the link in full.  Here’s just a snippet, in which he explains that even when their efforts are unsuccessful, the psychological impact can be devastating and long-lasting.

For a while I thought it was my own fault: just desserts for being gay, for being a bottom, for being repugnant and forever alone. Then, as I was about to attempt suicide. . . I realised what happened to me was sexual assault. It was against my wishes and there was nothing I could have done differently to avoid it… A lot of therapy later and I’m much better emotionally. I still have massive issues relating to other gay guys . . .  I still don’t feel safe letting a guy get under my guard or close to me emotionally, but I keep trying to get past it. And I still have suicidal thoughts from time to time.

It’s hard not to feel fury at the person who did this to him: harder yet to think that this man might still be screwing his way round Australia, doing the same to other people.

Of course, the bloke might not actually have HIV – there’s no way to know. He might – though it seems unlikely – just be a sick sadistic bastard who likes to play nastily with people’s minds. That doesn’t alter the fact that what he did – deliberately removing the condom mid session without telling the other party – was clearly sexual assault. James did NOT consent to unprotected sex. Thankfully PEP – for which he had to fight – ensured he remained negative.

But it’s equally likely the bloke was what is known as a ‘stealth bomber’ – a pos person who seeks to ejaculate in his partners in an attempt to infect them. He’s not the first I’ve heard of over the years, and online reaction to James’s story confirms his experience is not unique.

Paul Kidd - Living Positive Victoria

Paul Kidd – Living Positive Victoria

Paul Kidd of Living Positive Victoria says:

James’s story is very troubling but also very unusual, and while it’s tempting to jump to conclusions there are many unanswered questions about it. If the other party in this case is placing people at risk of HIV, the best response in most cases is to use the public health law processes, which are very powerful and include significant coercive capacity, rather than the criminal law.

But those public health processes have been tested in the past, and failed spectacularly. I know, because I was there in the thick of it.

In March 2006 I was editing LGBTI community newspaper the Melbourne Star, when I began to hear rumours of someone in the Melbourne gay community – specifically, the leather community – deliberately infecting others with HIV. I heard that the Department of Health knew but was doing nothing. I got calls from men who had encountered this person, though at this stage, they were too frightened to give his name, or their own.

One claimed to have been infected by him, against his will. Another admitted hearing of him, seeking him out, and asking him to infect them (in an ironic twist, it later turned out the attempt failed). Still others spoke of ‘breeding parties’ organised by him at which pos guys – known as ‘gift givers’ – and neg guys – known as ‘bug chasers’ – would have unprotected sex.

I contacted the Department of Health, who would say nothing, citing confidentiality. I contacted the Victorian AIDS Council, who said the whole “bug chasing” story was an urban myth. And I also contacted the Victorian Police Sex Crimes Squad, of whom I’ll say more later.

This took place against a background of an unprecedented surge in HIV infections the previous year. Victorian Health Minister Bronwyn Pike had called a summit of health officials and AIDS council from across Australia to address a 28% jump in new infections from 2004 – 2005, accompanied by a dramatic increase in other STIs. Reading my reports from the time is a depressing experience. It feels as if we’re back in the same place again now.

Some experts thought condoms were being used less because people thought AIDS was no longer a death sentence. Others thought the AIDS Council had dropped the ball and their prevention campaigns – which had abandoned “always use a condom” in favour of more complex messages about “negotiated strategies” – were ineffective.

Mike Kennedy

Mike Kennedy

Mike Kennedy of the Victorian AIDS Council complained of community disengagement with prevention efforts:

“Somehow it’s seen as a job for the VAC and People Living With HIV/AIDS, not something for the whole community to engage with.”

Dr Jonathan Anderson disagreed

“We need a major change in the way we approach both education and prevention campaigns.We need to be talking about alcohol and drug use, and campaigns to make changes in what people take and consume around sex. And we need to increase testing for both HIV and other STIs.”

As I said, seems like nothing much has changed. Anyway . . . . .

Suddenly, to my surprise, the police called back. Yes, they knew, and were actively investigating, the individual I had been hearing about, and could I help them? Could I persuade any of my contacts to give evidence? Did I have any names? No, they wouldn’t give me his name. How did they know I wouldn’t publish it and scare the guy off?

Unfortunately, none of my contacts were willing to go on the record with their names, or talk to the police. But one of them said something interesting. He said that the Department of Health knew this person, because they were ‘actively managing’ him. They know he’s out there, boasting about infecting people. Why were they not acting? Eventually, one of them gave me the name Michael Neal, and with that, I went back to the Department. I also spoke to the police Gay and Lesbian Liaison Officer Scott Davis, and the VAC.

Michael Neal right) under arrest

Michael Neal (right) under arrest

The outcome was a thorough but strictly confidential briefing from head of the sex crimes squad Tony Cecchin at Victoria Police Headquarters, in the presence of Mike Kennedy VAC, GLLO Scott Davis, the head of the uniform branch, and the detectives working the case.

There followed a tense time, during which the police kept me informed, continuing to monitor Neal’s activities online, as well as keeping him under observation. I rang them often to ask when they were going to take this guy off the streets. But he wasn’t arrested until the middle of May, after he posted pictures of a young boy online, offering ‘this child to breed’. And after LGBT communities members had continued to be at risk.

The case, which generated several enquiries and cost Chief Medical Officer Robert Hall his job, threw up a large number of questions about the management and control of people who deliberately infect others (which I do not believe have been satisfactorily answered to this day – see below).  There’s a full summary of the case and the appeal here and a stack of contemporary reports of the case as it unfolded here.

The ideal promoted by the AIDS industry and the medical profession is that the safety of the public is assured because every problematic HIV positive individual can and will be closely managed by the medical profession. This did not work well in Neal’s case.

Neal eventually faced numerous charges, including rape, child pornography, and attempting to infect others, between the years 2000 and 2005. The Department of Health had been ‘managing’ him since 2001 (remember, he wasn’t arrested till 2006), issuing numerous letters and four departmental control orders, starting in 2004, after he failed to behave as instructed. These documents banned him from beats, dance parties and sex on premises venues. He ignored them. He moved house more than once so that the DHS repeatedly lost track of him. He complained that, since his viral load was undetectable, he should not be subject to controls. In court the magistrate described his compliance as “less than optimal.”

DR Robert Hall

Dr Robert Hall, who ignored expert advice to quarantine Neal

Yet in all this time – from 2000 to 2006 when he was finally arrested – the DHS gave no thought to involving the police, despite the clear danger to the public. DHS officials told me that if they broke patient confidentiality, no other ‘difficult’ HIV positive patient would ever trust them again, and they would lose the ability to track what they were doing.

I might have had some sympathy for that viewpoint, had it not been for the ease with which Neal managed to evade their controls, and if the Chief Health Officer had not ignored his own advisors and failed to use his very considerable powers to take Neal off the streets and quarantine him in a secure environment.

Even after his arrest, the DHS would not hand over Neal’s medical records, citing confidentiality – again, a course of action with which I might have found myself in sympathy with in other circumstances.

The exact situation in which the police finally obtained and executed a warrant for Neal’s records is a little murky. My sources in the police and the DHS explain it like this.

Fearing an attempt to conceal information, the police staged a raid on the DHS (which offended them mightily) at a time when they knew no senior staff would be around to challenge them. While they were there, someone – presumably the person who tipped them off about the best time to visit – quietly suggested they ‘look in that cupboard over there in the corner while you’re here’.

There they found files relating to all the HIV pos men being managed by the department “who have difficulty practising safe sex.”  The police found 17 of those files so concerning that they took them along with the Michael Neal file.

After closer study, the police felt 11 required further police investigation, and 4 or 5 were described as being ‘of serious concern’. In the end, only one case was actively prosecuted, not least because, as a very senior police officer told me to my face, to go into so many cases in the necessary depth would require a large and expensive taskforce.

Mike Kennedy of the VAC said the Neal case reinforced the view that safe sex was something the people involved in these types of situations needed to be responsible for themselves.

“Without wishing to sound like the last of the rugged individualists, people do need to take the responsibility to protect themselves. We’d hope that we would work together collectively to protect ourselves from HIV, but at the end of the day you need to ensure you protect yourself, and not rely on others to keep you safe.”

Quite how you’re supposed to do that when faced with someone who lies about their HIV status and is determined to try to infect you, I do not know.

There were, of course, enquiries, and changes were made. I am told that liaison between DHS and Victoria Police on these matters is now far better than it was. As to the current situation Paul Kidd of Living Positive Victoria says (on Facebook):

There are between 30 and 40 cases managed by the health department in Victoria in any year. It’s not part of the management protocol to refer matters to police except where either (a) evidence comes to light of serious criminal activity such as rape or child pornography; or (b) the management process fails and the person continues to place others at risk.

That doesn’t sound so very different to the situation that prevailed, and so spectacularly failed, in the Michael Neal case. Here’s the DHS policy document.

To sum up: the medical profession still do not see this as a police matter and remain extremely reluctant to involve the law, even though that undoubtedly puts members of the public at risk.

https://www.flickr.com/photos/shyamh/372597470/in/photolist-53XuYE-yVEfj-hNT5Y-9uDZqZ-7VgZtv-6enY7Q-6eiR1D-6enVeo-7adFyg-oUMaMy-brtDYLThe police are still reluctant to get involved except in extreme situations. For example, they have in the past moved against HIV positive sex workers refusing to use protection. In the Neal case, they made no move until there was clear danger to a child, even though in the meantime, other gay men remained at risk of seroconversion.

But one can hardly blame them. With the medical profession uncooperative, and police resources scarce, and with investigations often lengthy and expensive…… plus, it is difficult to obtain a conviction. The prosecution has to prove that both parties are infected with the same strain of HIV, and when and where the infection happened. No wonder prosecutions are few and far between. Still, despite the difficulties. . . .

In 2008, following a 39 day trial, Neal was convicted of a total of 26 charges, including two charges of causing another person to be infected with HIV and 14 charges of attempting to cause another person to be infected with HIV.

So should we get rid of a law everyone seems reluctant to use, or does it provide a useful backstop in the case of recalcitrant individuals like Neal? It’s hard to say.

Mike Fox, a Facebook commenter on James’s story, makes the case against:

Mike Fox As HIV is a public Health matter, it should be governed by public health law. Onus should be on HIV+ people to disclose their status in the event that they have exposed a person to HIV (mishaps happen occasionally) and how to access PEP. Criminalising HIV+ people as 19A does discourages testing and disclosure. …

Some reasons to repeal. 19A
* treats the intentional infliction of HIV infection as inherently more serious or repugnant than other forms of violence, reinforcing the stigma around HIV;
* reinforces negative stereotypes suggesting that people living with HIV are dangerous to the community; discourages HIV testing, by providing an incentive for individuals to not know their HIV status;
* has never been used in the circumstances for which it was originally enacted (the deliberate transmission of HIV by a blood-filled syringe);
* ignores the significant medical advances which have been made in HIV treatment since its enactment; is redundant, as offences of general application exist that could be applied in a case of intentional HIV transmission;
* and fails to meet internationally-accepted standards for the application of the criminal law to HIV transmission.

All of which is fine and reasonable, and hard to argue against. However, here we are once again at a point where HIV and other infections are rising, and condom use declining, just like 2006. Except now, more than ever, young men are deciding that HIV is not such a big issue, with Truvada being pushed as ‘the gay birth control pill’ – take one a day and never worry about HIV again. There is also a trend to make excuses for HIV positive people not disclosing their status. Paul Kidd again:

We do encourage people with HIV to disclose their status but it’s not always possible – people are justifiably fearful of rejection and sometime face violence when they disclose, so it’s better to focus on encouraging everybody – positive or negative – to practice safe behaviours.

PLW043 ENUF Web banner_115x750_dc01I find that most disturbing: no-one has a ‘right’ to sex, any more than they have a ‘right’ to a baby, and certainly not if they are going to use duplicitous means to get it. If sex is going to happen, then disclosure – or withdrawal from the situation, if violence seems likely – is always possible. If HIV status is not disclosed, one cannot give meaningful consent. I am all in favour of reducing the stigma around HIV, but encouraging people to lie, even if only by omission, does not strike me as a good way to go about it.

And the case FOR Section 19A?

If the DHS were more willing to use it’s powers, not just to issue bits of paper telling people not to go to beats etc., but to actually curtail people’s liberty when they pose a threat to the public, I would say, get rid of it. But while the DHS continues to take a soft approach and allows people to put members of the public at risk, I think we need to keep it.

Meanwhile

  • we need more openness around the DHS management of problem cases, to make sure they’re being handled in a manner that produces maximum safety and reassurance for the public.
  • and we need to avoid stigmatising positive individuals, while retaining the choice to say ‘no’ if we wish. Anything else, to say the least, shows a lack of respect.

And if you want respect, you have to remember, it’s a two way street.

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About the author

Veteran gay writer and speaker, Doug was one of the founders of the UKs pioneering GLBTI newspaper Gay News (1972) , and of the second, Gay Week, and is a former Features Editor of Him International. He presented news and current affairs on JOY 94.9 FM Melbourne for more than ten years. And now he's been nominated for LGBTI Journalist of the Year 2017, which is great news, as he hasn't won any of these things for years! If you want to nominate him too - the more the merrier - you can do it here http://www.australianlgbtiawards.com.au/public-nominations.html "Doug is revered, feared and reviled in equal quantities, at times dividing people with his journalistic wrath. Yet there is no doubt this grandpa-esque bear keeps everyone abreast of anything and everything LGBT across the globe." (Daniel Witthaus, "Beyond Priscilla", Clouds of Magellan, Melbourne, 2014)