HIV+ Swedish Doctor Jailed for Unprotected Sex

A HIV-positive physician has been jailed in Sweden for having unprotected sex with two men although he allegedly knew of his own positive status, reported English-language Swedish news site The Local on June 10.

The physician, who was not named in the article, was convicted of reckless endangerment and sentenced to a ten-month term. He was also required to pay one of the men with whom he had unprotected sex about $3,500. Two other charges--aggravated assault and a charge stemming from one of the two men testing HIV positive--were thrown out, because it could be proven that the defendant had been the one to transmit the virus to the HIV positive victim. The other victim tested HIV negative.

The story said that the ruling would be appealed by the victims’ lawyer, who insisted that, "There can be no other person that has infected my client. But we have to obtain a supplementary investigation to prove this."

Similar stories have unfolded in the United States, where thirty-two states have laws on the books criminalizing unprotected sexual behavior in which one partner knows that he or she is HIV positive and fails to inform the other person. Such a case took place in Florida earlier this year, when Olympic medallist equestrian Darren Chiacchia was charged for not disclosing his HIV status to his male partner. When the other man discovered that Chiaccia was HIV positive, he went to the police.

Chiacchia was charged in January of this year; he entered a not guilty plea in February. The case was scheduled to come to trial this month. Under a 1997 Florida law, Chiacchia could face a 30-year sentence. The former boyfriend, who remained unnamed in media accounts, had tested negative prior to August of last year. The men had been dating since February of 2009; the relationship ended last June.

In some instances of criminal charges involving assault or sexual assault, a person’s HIV+ status can leave that person liable to additional charges of "assault with a deadly weapon," the weapon being HIV. In one case, a HIV+ man named Phillipe Padieu was charged last year in McKenney, Texas on six counts of aggravated sexual assault with a deadly weapon after having sex with half a dozen women; Padieu was found guilty and sentenced to a cumulative total of 250 years. And in Gatesville, David Castillo, the DA for Coryell County, says that he will try a suspect believed to be HIV positive on similar charges after the suspect allegedly sexually assaulted a 16-year-old boy. "You can fire a gun at someone and miss, and it’s still aggravated assault with a deadly weapon," Castillo told the press, explaining that he would issue the charges even if the alleged victim tested HIV negative.

But advocates for people living with HIV disagree about the application of the law in these cases. "HIV should not be an aggravating factor unless there’s some evidence that he intended to do some harm and did some harm," said the executive director of the Center for HIV Law and Policy, Catherine Hanssens. "Criminal law in every state is adequate to deal with it," added Hanssens. "But to treat it as evidence of guilt and a deadly weapon wasn’t appropriate in 1985, and it isn’t appropriate now. To refer to HIV as a deadly weapon in 2010 speaks of just unforgivable ignorance."

Worldwide, the question of whether sexually active people with HIV should be face criminal charges if they knowingly expose others to the disease has been thorny. In Uganda, a proposed bill to punish gays with life imprisonment or worse stipulates that the penalty will be capital punishment for HIV-positive men who have sex with other men. In New Zealand, an Auckland man was charged with having sex with a number of partners after being diagnosed as HIV-positive; half of his sexual partners reportedly tested positive after their encounters. The suspect killed himself in his jail cell last May.

That case was similar to that of a 49-year-old Australian man, Michael John Neal, who was convicted in 2008 of deliberately trying to transmit HIV to others. Evidence presented to the court over the course of Neal’s trial included the claim that the accused had convened sex parties where the intent was to infect HIV-negative people. The court was also told that as part of the attempt to spread the virus, Neal sported a piercing on his genitalia.

In 2008, a Dutch court convicted two men, identified only as Peter M. and Hans J., of attempting to spread HIV by injecting their victims with tainted blood at sex parties. The men reportedly drugged their victims before injecting them with infected blood, although the court found that that allegation could not be proven. All fourteen victims tested positive for HIV, but the court also noted that it could not be conclusively proven that their infections stemmed from the injections. Nonetheless, Peter M.--who also was convicted on a rape charge--was sentenced to nine years, and Hans J. to five years.

In the United States, a 22-year-old drifter was among the first to be tried and sentenced for spreading HIV. The young man, Nushawn J. Williams, received a sentence in 1999 of 4 to 12 years after investigators learned that he had bartered sex for drugs, despite knowing that he was HIV positive.

In Canada, a thief menaced police with a hypodermic needle he claimed contained HIV; similarly, an American suspect reportedly robbed several establishments earlier this year, armed with a hypodermic needle that he claimed contained HIV.

But in at least one instance, a gay man who was attacked and beaten on a Chicago train was able to fend off his assailants by claiming to be HIV positive. Earlier this year, Daniel Hauff intervened when three men began to harass a young gay passenger. The three then began to hurl anti-gay epithets at Hauff and to beat him. Hauff managed to repel the attackers by telling them that he was HIV positive and smearing his own blood on them. Hauff is, in actuality, HIV-negative.