Recent reporting in the mainstream media has highlighted serious problems in relation to HIV prevention.
Last week, several outlets reported on the disturbing claim that a man was deliberately infected through unprotected anal intercourse.
Inevitably, this has sparked reaction from both the LGBTI community and HIV charities, and raises significant questions about safer sex practices, the legal framework, how sexual health centres work and the need for Pre-exposure Prophylaxis (PrEP).
Patrick Strudwick’s Buzzfeed article establishes key facts and makes a number of observations, each of which has implications.
The essential facts of the matter are as follows. A young man, known as “Matt”, met another man on Grindr and visited his flat. In spite of Matt “feeling uneasy”, thinking the man was “lost and damaged” and noting that the flat was “very squalid”, the two had anal intercourse. Matt insisted that he wanted safe sex, after which the other man produced a condom – but Matt was unable to see whether he was used it. The man ejaculated inside Matt. Matt noted that after intercourse the condom appeared empty, but he trusted the stranger and thought nothing of it. Having never previously had sex without a condom, Matt claims he “didn’t know what it felt like” and that “it wasn’t much different…for the receptive partner.”
Eight days later the man sent Matt messages via WhatsApp. “I cummed in your ass without a condom” said one, while others were more abusive. ” At this point Matt began to fear he may have become infected with HIV and three weeks later went for an HIV test at the Chalmers Sexual Health Centre in Edinburgh. The test proved negative. A further checkup five weeks later – both were taken using the less accurate pin-prick technique – also came back negative, but a more detailed test was requested by the laboratory.
A few days later Matt received a phone call from the centre. The call confirmed that the test was positive. Matt told the clinic about his experience with the man and the messages – the clinic treated him sensitively and asked for the stranger’s contact information “in case he didn’t know about his HIV status”.
Fearing that he had been deliberately infected, Matt then reported the incident at Corstorphine Police Station. Police took various evidence. Two months later Matt returned to the clinic where, he claims, a nurse told him other men had received similar messages. The police are still investigating the case and have yet to question the suspect.
Matt has recently been commenced on antiretroviral medication and while many of his friends are supporting him to adjust to live with HIV, he is determined to bring the other man to justice and given a “hefty custodial sentence.”
Clearly Matt is a victim, and we should all be concerned if a man in Edinburgh is transmitting HIV to other men through his intentionally reckless actions. There are, however, questions that remain unanswered: is the man aware of his HIV status? Is he deliberately infecting others? Are there mental health issues in play here, as suggested by the reported state of his house and his state of mind?
A spokesperson for Chalmers Sexual Health Centre told KaleidoScot that they couldn’t comment on individual cases. However, Gordon Scott, Clinical Lead at Chalmers said: “In general, our policy and procedure is not to give positive HIV test results over the phone.” He added that this could happen in exceptional circumstances, saying: “In some circumstances, such as at the request of the patient, the service will provide results in this way if it is deemed appropriate. As a comparison, the advent of home testing for HIV has resulted in some patients discovering their positive status with no interaction at all with an experienced HIV nurse or doctor.”
Concerns could also be raised in relation to confidentiality if health professionals have been disclosing the nature of other service users’ experiences to patients.
Activists have also expressed concerns about Scots law, which they believe is doing a disservice to both people who have HIV and wider issues of public health.
Under Scots law, exposing or infecting someone with HIV are considered “culpable and reckless conduct”. These are common-law offences that carry a maximum penalty of life imprisonment, as opposed to five years in England and Wales. If the transmission of HIV is deliberate, it would be legally considered an assault.
However, it is very difficult to prove deliberate transmission and a failure to use a condom does not in itself amount to an intention to give someone HIV. To date, there has never been a conviction in any part of the UK for intentional transmission and therefore – in Matt’s case, unless further evidence comes to light – the police would probably be looking at reckless transmission rather than deliberate. And this would require the suspect to know he was HIV-positive – something that isn’t actually known.
Lisa Power, a sexual health campaigner who was the co-founder of Stonewall and who also served as the Secretary-General of the International Lesbian & Gay Association, believes that the “messy” and “damaging” stance of Scots law on the issue needs to be reconsidered, and that Scotland should learn from other jurisdictions.
She told KaleidoScot: ” I think that the South African model is sensible – it only prosecutes for intentional transmission, which includes transmission where there has been a sustained course of deceptive behaviour.
“Various charities have worked with Government lawyers in England and Wales to draft changes to the assault laws back in the 1990s which would have made things here much clearer, simpler and restricted to intentional transmission – but sadly the law change never got enacted so we still have the messy old Victorian laws – and the Scottish ones are even messier.
“But my experience is that trying to prosecute reckless transmission during casual sex has resulted in quite a lot of damage, including miscarriages of justice, because it’s so extremely complicated and people make all sorts of assumptions.
“The trouble with all the UK criminal laws is that we have no way of apportioning responsibility, it’s all victim and offender, which is not how most sex happens. Scotland is worse because you have laws on your books that let the Procurator Fiscal bring cases for exposure – and that’s a ridiculous charge now we have TasP and PreP and we know the relative (low) risks of any one sexual encounter.
She added: “I can’t comment on this individual’s case but I can tell you that my experience is that people rush to conclusions, they expect the worst and they also rush to judgement. And as often as not they were wrong.”
The UNAIDS guidance aims to “end overly broad criminalization of HIV non-disclosure, exposure and transmission on the basis that it “raises serious human rights and public health concerns”. it recommends “concentrating efforts on expanding the use of proven and successful evidence-informed and rights-based public health approaches to HIV prevention, treatment and care” and “limiting any application of criminal law to truly blameworthy cases where it is needed to achieve justice.”
The Oslo Declaration also suggests that “a better alternative [to criminalisation] is to create an environment that enables people to seek testing, support and timely treatment, and to safely disclose their HIV status.”
A Scottish activist, who asked to remain anonymous, told KaleidoScot: “Criminalising HIV transmission merely perpetuates and even encourages stigmatisation, affects the ability of people to openly discuss their health issues, makes it less likely people will present for testing and ultimately plays into the spread of HIV.”
He also emphasised the importance of education in schools, saying: “This story does highlight the importance of HIV and sexual health education in schools. It should be compulsory.”
He added that if PrEP was available on the NHS in Scotland, sexually active people like Matt “could protect themselves from exposure to HIV” and stressed the importance of having conversations about HIV prevention is a less stigmatising environment.
Indeed, the current lack of PrEP availability in Scotland is something highlighted by Matt’s experience. PrEP is essentially an anti-HIV drug that can be taken prior to sex to prevent the virus taking hold and – if it had been available – it would have given Matt the opportunity to take greater responsibility for his own sexual health.
HIV medication is now highly effective to the point that people who have HIV and use the drugs properly are effectively non-infectious. However, many new infection arise from people who are unaware of their HIV status – something that PrEP could be a significant factor in preventing.
There is ongoing discussion on PrEP and indeed there are arguments against PrEP provision. The two most often cited objections are in relation to cost and the assumption that the provision of prophylaxis would amount to approval of high-risk sexual behaviour, while others have questioned its efficacy.
The general mood among the scientific and medical communities – and HIV charities – is that ascribing personal responsibility for disease is neither reliable nor helpful, and that decisions on public health matters should be determined by cost-effectiveness and clinical need rather than moral judgements. Studies have shown PrEP to be highly effective when used properly, which essentially leaves the not insignificant question of cost. While the assumed cost of PrEP remains, for the time being, reasonably high it is considerably lower than the lifetime cost of HIV infection.
PrEP will not be for everybody, and requires adherence to be effective, but it represents a potentially major tool in the prevention of HIV transmission and could be of benefit to people such as Matt.
George Valiotis, Chief Executive of HIV Scotland, confirmed that PrEP was not available on the NHS in Scotland, but told Kaleidoscot: “HIV Scotland is currently working with the NHS and the Scottish Government to address availability of PrEP.”
Mr Valiotis also emphasised the importance of people taking responsibility for their own sexual health, saying: “It is important to reinforce safer sex messages and practices”, adding that “cases like Matt’s are upsetting but are very rare.”
With regard to concerns about criminalising HIV transmission, he said: “For good health reasons people with HIV must be able to seek advice on sexual health issues without fear of being reported to the police. Nor should they be subjected to unjustified investigation, because the law is vulnerable to misinterpretation by police and the courts. However, in this instance the relevant authorities seem to have acted appropriately and proportionally in the interests of public health.”
Robert McKay, National Director Terrence Higgins Trust Scotland, echoed many of these sentiments. He told KaleidoScot: “The current legal situation creates more confusion and potential challenges for people living in Scotland. Whilst it’s important to keep people safe, it’s also important that the law uses intent as a better measure of criminal behaviour as opposed to recklessness.
“When it comes to PrEP, Terrence Higgins Trust has been campaigning for Pre-exposure prophylaxis (PrEP), a daily pill taken by those at high risk of HIV, to be made available free of charge to those who need it. The PROUD study clearly showed that PrEP used in conjunction with other HIV prevention such as condoms was highly effective at preventing HIV infection among men who have sex with men (MSM).”
Matt’s case has raised serious questions about Scotland’s HIV prevention strategy, and it would seem overdue reform of Scots law and the introduction of PrEP – both highlighted by the alleged incident – would be welcomed by activists and HIV charities.