UK: Court of Appeal orders retrial in UK's first HIV criminal transmission case

On 5 May 2004, the UK Court of Appeal, Criminal Division, granted Mohammed Dica's appeal against his October 2003 conviction on two counts of causing grievous bodily harm for reckless transmission of HIV. The court ordered a retrial after determining that the trial judge was wrong to not allow the defendant to present information that the victims had known about his condition and had consented to the risk.     

Australia: court orders doctors to pay damages to woman who contracted HIV from her husband

IN a case that received extensive media coverage, the New South Wales Supreme Court has found two doctors negligent for failing to take steps to make a bride aware that she was at risk as a result of her prospective husband's HIV infection. The court awarded the woman AUD$727,437 in damages. The couple had attended the physicians together to be tested for HIV and other sexually transmitted infections, but had received their test results separately. She subsequently contracted HIV as a result fo unprotected sexual intercourse with him.     

South Africa: damages awarded to woman infected by husband

In mid-2001, the High Court of South Africa issued its judgment in Patricio v Patricio, a civil case in which a woman sued her HIV-positive husband for infecting her with HIV.     

Toward Rational Criminal HIV Exposure Laws

This article examines criminal HIV exposure statues that address undisclosed exposure through consensual sexual activity. Twenty-seven U.S. states have adopted some form of HIV exposure statute. Thirteen of these statutes specifically address exposure through sexual activity, while another eleven statutes could be applied to exposure through sexual activity, while another eleven statutes could be applied to exposure through consensual sexual interactions. Although the penalties for breach of these laws are often severe, the risk of actual harm posed by the many of the behaviors prescribed is minimal and in some cases virtually nonexistent. After an overview of the various types of U.S. criminal HIV exposure statutes and discussion of the risk of HIV transmission through the various sexual activities addressed in the laws, the authors highlight the tenuous relationship between proscribed activities and actual risk of virus transmission. The authors address this limitation in the law by offering a framework for the evaluation and construction of HIV exposure statutes that considers not only the intent of the HIV-positive actor but also the risk that his or her conduct poses to others.     

Effects of Judicial Instructions and Case Characteristics in a Mock Jury Trial of Battered Women Who Kill

This study examined the effects of judicial instructions on the outcome of a mock jury trial that involved a woman who pleaded self-defense after killing her abusive spouse. Jurors were instructed to adopt either an objective or a subjective standard of reasonableness when reaching a verdict. Within objective/subjective instruction conditions, half of the juries viewed a case in which the woman killed her abuser while he was attacking her (confrontational) and the remaining half viewed a case in which she killed him while he was asleep (no confrontation). Juries in the subjective conditions returned significantly more not guilty verdicts than jurors in the objective conditions. At the individual juror level, participants hearing subjective instructions were significantly more likely to rate the defendant as not guilty than jurors given objective instructions when the abuse was nonconfrontational.     

Police use of TASERs in the restraint and transport of persons with a mental illness

The mentally ill are overrepresented in the statistics of individuals killed or injured by police and it is understandable that police would seek a weapon, such as a TASER, that is less lethal than a firearm. However, it appears that use of TASERs is not without risk, especially in certain groups, including the mentally ill. The risk of injury to vulnerable people with a mental illness from TASER weapons must be weighed against the risk that escalation to lethal force may cause if a person with an acute mental illness requires restraint. When police officers are carrying out their duties under mental health legislation it is recommended that TASERs be used only when an individual is imminently likely to sustain or to cause grievous bodily harm. This article recommends changes to the Western Australian Police TASER training programs and proposes mandatory medical assessments after the use of TASER restraint.     

Hiding children to avoid ARV treatment

In the last issue, we reported on the case of a Montréal woman with HIV who lost custody of her two HIV-positive children after refusing to consent to their treatment with antiretroviral therapy.     

Jurors' knowledge of battered women

An increasing number of psychologists with expertise in the area of battered women are participating in the legal system as expert witnesses and occasionally testify on behalf of a battered woman who has injured or killed her partner. Testimony about the battered woman syndrome has been offered to help the jury understand why the defendant reasonably perceived that she was in danger of harm. One of the requirements of expert testimony is that it be beyond the common understanding of the jury. Many commentators assume that jurors are uninformed or misinformed about battered women and, thus, that expert testimony is necessary to educate them. This study evaluated what jurors know about violent relationships. Approximately 300 jurors read scenarios about spousal violence and answered a questionnaire dealing with circumstances surrounding such abuse. Results suggest that on certain dimensions of spousal violence, jurors are aware of empirical research findings. On other dimensions, jurors are less well-informed and could potentially benefit from the testimony of an expert.     

Preventing HIV transmission via HIV exposure laws: applying logic and mathematical modeling to compare statutory approaches to penalizing undisclosed exposure to HIV

Twenty-four U.S. states have enacted HIV exposure laws that prohibit HIV-positive persons from engaging in sexual activities with partners to whom they have not disclosed their HIV status. There is little standardization among existing HIV exposure laws, which vary substantially with respect to the sexual activities that are prohibited without prior serostatus disclosure. Logical analysis and mathematical modeling were used to explore the HIV prevention effectiveness of two types of HIV exposure laws: "strict" laws that require HIV-positive persons to disclose their serostatus to prospective partners prior to any sexual activity and "flexible" laws that require seropositive status disclosure only prior to high-risk sex (e.g., unprotected anal or vaginal intercourse). These laws were compared relative to each other and to a no-law alternative. The results of these analyses indicate that, under most (though not necessarily all) circumstances, both strict and flexible exposure laws can be expected to reduce HIV transmission risk relative to the no-law alternative, with flexible exposure laws producing the greater reduction in risk. This study demonstrates how logical analysis and mathematical modeling techniques can make an important contribution to the construction of a rational basis for decisions about a highly contested public health policy issue.     

What Should We Say We Say about Contrived ‘Self-Defense’ Defenses?

Imagine someone who deliberately provokes someone else into attacking him so that he can harm that person in defending himself against her attack and then claim “self-defense” when brought to court to defend himself for what he has done to her. Should he be allowed to use this defense, even though it’s clear that he has deliberately manipulated his attacker into attacking him precisely in order to be able to harm her with impunity (assuming he were allowed to use the defense and thus escape legal penalties)? This question is the focal point in the paper that follows. I argue first that the case described above is indeed an instance of an “actio libera in causa,” albeit arguably one at the margins of this controversial class of cases. Then, using a view about the justification of self-defense that I have defended elsewhere, I show why I believe that, while the manipulator should not be deprived of the legal right to defend his self-defensive actions in such cases by claiming they were a legitimate matter of self-defense, there is good reason to enact laws that will allow him to be prosecuted, independently of his “self-defense” defense, for manipulating his attacker as he did, thus allowing him to harm her in self-defense and then defend his actions as purely a matter of “self-defense.”     

Double Discounting: The Effects of Comparative Negligence on Mock Juror Decision Making

Two experiments were conducted to ascertain the effects of comparative negligence on damage awards. Participants awarded damages for a mock medical malpractice case in which the level of the plaintiff's negligence was varied. Both experiments showed that damage awards were doubly discounted for partially negligent plaintiffs. Experiment 1 also found that the responses of college students did not differ from those of people who had been called for jury duty. Experiment 2 examined four components of the damage award and showed that the reduction due to the level of the plaintiff's negligence occurred only in damages for bodily harm. Implications for the judicial system are discussed.     

Homicide by stab to the neck with subsequent attempted suicide by cut to the neck

A 37-year-old Turkish woman was fatally injured by her 65-year-old Turkish husband with a stab to the cervical region. After her death he inflicted a deep cut to his own neck, which he survived thanks to immediate medical assistance. To the authors' knowledge this combination of a homicidal stab to the neck and a suicidal cut to the neck has not been described before. Kosher butchering, which is common in the couple's traditional cultural environment, is discussed as possible reason for the choice of the neck as site for applying sharp violence. It may have induced the perpetrator to choose this anatomical region.     

An elliptical incised wound of the breast misinterpreted as a bite injury

Bite injuries upon homicide victims are most often initially identified by the forensic pathologist during the course of the autopsy examination. Following such recognition, the injury or photographs of the traumatized site are then referred to a forensic odontologist for his or her examination, further characterization, and subsequent comparison with any suspect's dentition. However, if the pathologist misidentifies an injury caused by another mechanism as a human bite, this mistake can potentially be perpetuated by the dental consultant, since relatively few dentists regularly examine traumatic injuries other than those arising from bites. To illustrate such an event, a case is presented involving an incised wound of the breast, which was originally identified as an avulsive bite wound. Detailed examination by two odontologic consultants confirmed the wound as having been caused by human teeth, and further, they related the "bite injury" to a specific individual. The bite injury interpretation represented the only scientific evidence implicating the suspect at a subsequent trial for capital murder. Later examination of the tissues and photographs by a forensic pathologist and another dental consultant revealed that the injury was not due to human dentition, but rather resulted from a sharp-edged instrument. These consultants conducted a unique experiment to reduplicate the injury and prove its causation. This information was presented to the jury during the suspect's trial and resulted in his acquittal on all charges.     

The Role of Woman's Explanations for Refusal on Men's Ability to Discriminate Unwanted Sexual Behavior in a Date Rape Scenario

This study examined the impact of types of women's verbal refusals, and the timing of her refusal, on men's discrimination of when a female wants her partner to stop making sexual advances. Male students were randomly assigned to 1 of 6 conditions (Explanations × Intimacy Levels). Before listening to an audiotape of a date rape, participants were told they would be listening to an interaction between a man and a woman who had just returned from a date. They were instructed to indicate when the woman wanted the man to stop making sexual advances by pressing a switch that synchronously stopped a timer (yielding the measure of latency). In the vignette, the woman provided an explanation for not engaging in sexual intercourse on the date either during kissing or when the man attempted to touch her breasts. She offered one of three reasons for refusing his sexual advances; fear of pregnancy, waiting until marriage, too early in the relationship. Results revealed an interaction in which participants in the too early in the relationship explanation at the level of breast contact condition displayed significantly longer latencies than individuals in the other groups. The implications of the findings are discussed.     

Nigeria: HIV-positive woman launches suit after being denied treatment

A 39-year-old woman who was denied treatment at a hospital in Lagos simply because she is HIV-positive is fighting back through the courts. The Center for the Right to Health has filed a lawsuit on her behalf, seeking damages as well as an injection to prevent further discrimination against people with HIV/AIDS who seek treatment.     

US: immigration court allows Zambian woman's asylum claim based on HIV infection

On 9 February 2004, the federal Immigration Court ruled that a Zambian woman can stay in the US because her HIV-positive status gives her a well-founded fear of persecution in Zambia. The court found that she would face severe and lethal discrimination in the public health clinics and in the employment sector and that the Zambian government is unwilling or unable to control this persecution.     

Self-made "electric chair" for sexually motivated child abuse of children

A 52-year-old man had altered a wooden folding chair by placing two electrodes and a circuit underneath the seat. Using a remote control, he was able to give electric shocks to a person sitting on the chair. He used this device on more than 50 children, video-taping their reactions for his own pleasure. There are no reports that any of the children suffered a lasting damage to their health. The construction as well as the function and the electrical parameters of the chair were examined by forensic specialists. According to their expertise, the construction was not able to cause a potentially life-threatening condition when used with healthy children. The perpetrator was convicted for bodily harm etc.     

US: appeals court dismisses employment discrimination suit by HIV-positive dental hygienist

Shortly before the decision in Toyota Motor Manufacturing, the US Court of Appeals (11th Circuit) issued another restrictive judgment, in a case dealing specifically with HIV-based discrimination. On 21 December 2001, in Waddell v Valley Forge Dental Associates Inc, it dismissed the case of a dental hygienist who sued his employer for suspending him from treating patients after he tested HIV-positive. The decision is a setback for efforts to ensure that the Americans with Disabilities Act translates into actual protection against discrimination for people with HIV/AIDS.     

Barcelona 2002: law, ethics, and human rights. HIV testing for peacekeeping forces: legal and human rights issues

In 2001, the United Nations Security Council established an Expert Panel to study the issue of whether the UN should institute HIV testing of peacekeeping personnel. This article, based on a 9 July 2002 presentation to the XIV International AIDS Conference (abstract TuOrG1173), reports on the findings of a paper prepared for the Expert Panel by the Canadian HIV/AIDS Legal Network. The paper examined whether it is permissible for the UN to implement mandatory HIV testing of its peacekeeping personnel, and whether HIV-positive UN peacekeeping personnel should be excluded or restricted from service on the basis of their HIV status or HIV disease progression. The article describes some of the court cases in which these issues have been considered; discusses the importance of analyzing such issues in the context of a human rights-based approach to the pandemic; and formulates a series of key principles for guiding UN decision-making. The article concludes that a policy of mandatory HIV testing for all UN peacekeeping personnel cannot be justified on the basis that it is required in order to assess their physical and mental capacity for service; that HIV-positive peacekeeping personnel cannot be excluded from service based on their HIV status alone, but only on their ability to perform their duties; and that the UN cannot resort to mandatory HIV testing for all UN peacekeeping personnel to protect the health and safety of HIV-negative personnel unless it can demonstrate that alternatives to such a policy would not reduce the risk sufficiently. In the end, the Expert Panel unanimously rejected mandatory testing and instead endorsed voluntary HIV counselling and testing for UN peacekeeping personnel.