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.)
His opinion stands in contrast with Wellington District Court Judge Susan Thomas who, in a groundbreaking 2005 ruling wrote: "...as far as public 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.”