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Saturday 10 October 2009


The 'HIV predator' case: Is it a first?

Posted in: Features, HIV
By Andrew de Montalk - 3rd June 2009

Last week a 40-year-old HIV-positive man appeared in court charged with wilfully infecting three other men with HIV and attempting to infect a fourth.

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No charge of this type could ever be laid in New Zealand without exciting a good deal of public interest and coverage from the gay and mainstream media. Despite the prurient details as to the ages of the complainants and the character of the accused, the case is legally interesting and potentially a legal first in New Zealand.

It is alleged three men contracted Human Immunodeficiency Virus (HIV) after unprotected sex with the man. It is also alleged the man, who currently has name suppression, knew and failed to disclose his positive HIV status to the complainants and failed to take reasonable precautions to protect against transmission. The man has attracted national media interest; even before the man's arrest and first appearance in court. Days before his arrest, GayNZ.com and TVNZ's prime-time current affairs show, Close Up, labelled the man an "HIV predator."

The man is charged under section 201 of the Crimes Act 1961 with wilfully and without lawful justification or excuse causing or producing a sickness or disease, namely HIV. It's an offence that rarely comes before the court. It is a serious offence that carries a maximum penalty of 14 year imprisonment. Although no plea has been taken, the man has indicated he intends to defend the charge. At this stage, it is unknown whether more charges will be laid.

The man is not the first person to face the potential sanction of the criminal law for infecting another with HIV in New Zealand. In 1993 Kenyan Peter Mwai was charged with the same offence. Mwai, a 26 year old, had unprotected sex with several women including a 28 year old female university student; that subsequently become aware that her donated blood had test positive for HIV. Another woman also tested positive. Both complained to police. Mwai was charged and stood trial.

Mwai also attracted national media interest. TV One carried a news item referring specifically to Mwai by name, recommending anyone that had come in contact with Mwai should contact their doctor. A week later, the Sunday News carried a front page article under the banner "The Face of Fear", which also carried a photo of Mwai. Before going to air, TVNZ was blocked from broadcasting an item featuring a women - named Louise - who claimed to have had unprotected sex with Mwai. Louise, who subsequently tested negative for the virus, described Mwai as "very charismatic, very intelligent, very convincing" in the news item which was later screened.

The court heard evidence that Mwai had a habit of unprotected sex, persistently and on some occasions engaging in unprotected sex even after being challenged about his status by various sexual partners. The court heard evidence that Mwai, knowing the harm he could cause, either denied or deflected the truth of his HIV status. It was claimed that Mwai told one woman he had tested negative for HIV when immigrating to New Zealand. Another woman insisted on using a diaphragm, but Mwai claimed it would be "uncomfortable" for him. All this evidence had enormous entertainment value for the media, but guess what - Mwai got off!

How? The judge withdrew the charge of wilfully causing a disease or sickness from the jury and discharged Mwai. The judge considered the evidence insufficient to justify a conviction.

In the judge's opinion, although the jury would have regard to views on the progression of the virus (HIV) to a disease (AIDS), the latency or delayed consequences of HIV did not preclude the inevitability of the condition meet the requirement of "sickness or disease" for the offence.

The requirement of "wilfulness" is what got Mwai off. To be found guilty of the offence, the prosecution must prove beyond reasonable doubt that Mwai wilfully produced or caused the complainant to become infected with HIV. The question the judge asked: Did Mwai want, desire or intend the complainant to be infected? Answer: No. In the judge's opinion, all that Mwai wanted, desired, intended was sex. HIV transmission may have been the probable consequence of having unprotected sex but it was not a consequence Mwai desired. What helped the judge come to this conclusion was evidence that showed on all occasions and with all sexual partners there was mutual attraction, one thing led to another and what emerged was consensual sexual activity which became unprotected sexual intercourse. Although evidence showed Mwai was sometimes deceptive, no evidence showed sadistic or predatory tendencies or a want to infect.

Mwai however did not walk free. He "got off" the charge of wilfully causing a disease or sickness, but was convicted of causing reckless grievous bodily harm and criminal nuisance. He was sentenced to 7 years imprisonment.

There are a number of differences between the offences that Mwai faced and those the man now in police custody faces. First, the man in police custody is not currently charged with causing reckless grievous bodily harm or criminal nuisance. These are the two offences that landed Mwai in jail. The man in custody is charged with the one offence - albeit several times - of wilfully causing a disease or sickness. This is a more serious charge. It is also the charge that Mwai got off. The charge carries double the maximum penalty than what can be given for reckless grievous bodily harm.

The offence the man in custody is charged with requires the prosecution to prove beyond reasonable doubt that the man wilfully (wanted, desired) to cause a disease or sickness. In Mwai's case, the prosecution could not prove this. Recklessness, foreseeing a risk of HIV infection and deciding to run the risk, is insufficient. Recklessness however is sufficient for a charge of grievous bodily harm. The man in police custody is not charged with causing reckless grievous bodily harm - or criminal nuisance. These are the two offences that convicted Mwai.

The man in police custody is charged with an offence that is yet to be successfully prosecuted in New Zealand. If the charge goes to a jury, it will be the first time a New Zealand jury has considered a charge of wilfully causing a disease or sickness. If he is convicted, he will be the first person in New Zealand to be convicted of wilfully causing a disease or sickness in another person.

Andrew de Montalk is a law student at Victoria University in Wellington.



Andrew de Montalk - 3rd June 2009

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