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Author Topic: English Appeal Court rules that HIV non-disclosure may be 'provocation'  (Read 4728 times)

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Offline vokz

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Still trying to work out my own mixed feelings about this one:

Judges at Londonís Court of Appeal have today ruled that non-disclosure of an individualís HIV-positive status before having sex may be considered a relevant factor in sentencing. The ruling came during the appeal of a gay man who had been sentenced to life imprisonment for severely attacking an HIV-positive man for not disclosing his HIV status until after they had had casual, consensual sex.

Full story at: http://aidsmap.com/en/news/C96AE9C9-CECA-45CB-94FD-2B74DA68C7D3.asp and http://www.halifaxcourier.co.uk/news/Rage-of-gay-attacker-who.3555520.jp

Offline Matty the Damned

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #1 on: December 06, 2007, 04:02:46 AM »
This should be a good 'un.

:)

MtD

Offline vokz

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #2 on: December 06, 2007, 04:32:51 AM »
This should be a good 'un.

Indeed  :-\

Irrespective of the fact that I always choose to divulge my own HIV status .. provided that condoms are used, I donít personally consider that anyone has a duty to disclose; so, from my point of view, the one missing piece of really crucial information is whether or not condoms were used.

It wont make any difference to the fact that I think he deserves to spend a long stretch behind bars; but it will make a difference to whether, or not, I can find any sympathy for the provocation argument.

Offline keyite

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #3 on: December 06, 2007, 04:46:56 AM »
Whether or not condoms were used is definitely relevant. Judges should also have been asking themselves how come a gay man who felt this strongly about sleeping with poz guys didn't ask about HIV status before having sex?

Bottom line for me is that there can be no excuse for an attack so frenzied that it leaves another person with permanent disabilities.

Offline BassMan

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #4 on: December 06, 2007, 04:56:01 AM »
It never ceases to amaze me in this situation how the pozzies are always painted as the predatory bad guys and the neggies as the helpless victims. It also never ceases to amaze me how many neggies seem quite happy to have unprotected sex with people of unknown status and then hope for the best afterwards. Once again the onus is being placed on us to shoulder all of the responsibility.

One of the problems is that all too often, when sex isn't negotiated properly, the failure to discuss HIV is misinterpreted ("He'd have told me if he was poz." or "He hasn't mentioned it, so he must be poz too.") There can't be a gay man on the planet (let alone the Manchester scene) who isn't aware of the risk of HIV, so to me that makes the whole provocation argument a little shaky to say the least. I agree it's morally right to disclose if condoms aren't being used, but what about the negative guy in this situation; doesn't he have a duty to protect himself too by at least asking the question, or by reaching for the condoms?

The judge said "The victim had put [Summers] at a direct and very serious risk of contracting a terminal illness." Hmm. So Summers didn't put himself at risk at any time by failing to negotiate the type of sex he was after? He just thought he'd bareback and hope for the best? If I decide to take a stroll along the motorway, knowing the risks, then get hit by a car, who's to blame? The driver of the car? Or me, for my own stupidity?

If the poz guy in this situation can be accused of recklessly endangering someone's life, using the same twisted logic, why not accuse the negative guy of attempted suicide?

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Offline komnaes

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #5 on: December 06, 2007, 05:24:22 AM »
Like many court reports this one is confusing.

Provocation has to mean one having done something to incite. Non-disclosure is NOT an action. It is not clear from the Halifax report, but I am assuming that the disclosure AFTERWARD is the provocation. But then I am not sure.

I also don't understand also if the attacker's sentence has been quashed as the Halifax report says, on what ground he's still in jail? So I am assuming that his sentence has only been reduced. He's probably still guilty of the charge of assult or even attempted murder.

In any case, I stick to my view that non-disclosure is no ground for any form of criminal sanction, except in situations where the positive partner lies or knowingly misleads his sex partner into believing that he is negative, or when there's a presumed trust, which has been abused, between them (as in a marriage or a presumed monogamous relationship). Positive HIV status can also be a factor in sentencing rape cases.

This case as a precedent can have serious consequences, especially when us are being seen as nothing but mindless disease-spreading monsters.

Just my two cents.. now I need to go to Lexus to pull this judgment out..

Shaun
« Last Edit: December 06, 2007, 05:29:13 AM by komnaes »
Aug 07 Diagnosed
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Offline vokz

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #6 on: December 06, 2007, 05:35:38 AM »
how come a gay man who felt this strongly about sleeping with poz guys didn't ask about HIV status before having sex?

I totally agree.

I am also left wondering why on earth the guy who got beaten up would choose to disclose AFTER the event .. and exactly when / how he did it.

My gut feeling is that there has probably been a staggering level of naivety on both sides.

Some of the judgeís comments are, on the face of it, quite exasperating .. but would they still be in their full and proper context?

It is all quite frustratingly vague. I think perhaps I am going to have to try to do a bit of digging on this one.

I also don't understand also if the attacker's sentence has been quashed as the Halifax report says, on what ground he's still in jail?

Shaun,

The conviction wasnít quashed (he had in any case pleaded guilty and wasnít looking for the conviction to be overturned). It was only an appeal against the severity of the sentence .. and whether or not he was even successful in that - beyond getting words of understanding from the judges - is open to debate. Only time will tell.

Edited to add:

Q&A: Indeterminate sentences (BBC) http://news.bbc.co.uk/1/hi/uk/4536358.stm



« Last Edit: December 06, 2007, 07:35:52 AM by vokz »

Offline komnaes

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #7 on: December 06, 2007, 07:20:20 AM »
It is all quite frustratingly vague. I think perhaps I am going to have to try to do a bit of digging on this one.

I tried Nexus but nothing comes up.. maybe it needs to wait a bit.

One of the quotes of a judge says that the attacker is still in jail only because he's a general danger to the society, which doesn't make any sense. That was why I asked though I am sure he only got his sentence reduced, the conviction stays.

In any case this attacker beat the pozzie so severely he's left handicapped, and he left the scene taking things from him, leaving the apartment knowing that there was a good chance that the man could die. And the disclosure or non-disclosure before sex is good enough a reason to reduce his sentence?

It should go to the House of Lords..

Shaun
« Last Edit: December 06, 2007, 07:22:15 AM by komnaes »
Aug 07 Diagnosed
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Offline Ann

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #8 on: December 06, 2007, 08:02:27 AM »
Very frustrating. There are just too many variables - were condoms used? Was the attacker the receptive partner? Did he go on to test negative? Was he ever really at risk in the first place?

>:(

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Nymphomaniac: a woman as obsessed with sex as an average man. Mignon McLaughlin

HIV is certainly character-building. It's made me see all of the shallow things we cling to, like ego and vanity. Of course, I'd rather have a few more T-cells and a little less character. Randy Shilts

Offline komnaes

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #9 on: December 06, 2007, 09:56:07 AM »
Very frustrating. There are just too many variables - were condoms used? Was the attacker the receptive partner? Did he go on to test negative? Was he ever really at risk in the first place?

>:(

Indeed, Ann. It's frustrating to us for not knowing the details, but most people don't care - you need only to read the feedback at the end of the page of the Halifax report. Most of those folks seem to think the pozzie deserved it, and I am sure many in the public would agree. It's entirely UP to us. Granted, it's morally questionable for any of us to assume the others are also positive if they don't ask, but it assign criminal blame accordingly is entirely wrong and unfair.
Aug 07 Diagnosed
Oct 07 CD4=446(19%) Feb 08 CD4=421(19%)
Jun 08 CD4=325(22%) Jul 08 CD4=301(18%)
Sep 08 CD4=257/VL=75,000 Oct 08 CD4=347(16%)
Dec 08 CD4=270(16%)
Jan 09 CD4=246(13%)/VL=10,000
Feb 09 CD4=233(15%)/VL=13,000
Started meds Sustiva/Epzicom
May 09 CD4=333(24%)/VL=650
Aug 09 CD4=346(24%)/VL=UD
Nov 09 CD4=437(26%)/VL=UD
Feb 10 CD4=471(31%)/VL=UD
June 10 CD4=517 (28%)/VL=UD
Sept 10 CD4=687 (31%)/VL=UD
Jan 11 CD4=557 (30%)/VL=UD
April 11 CD4=569 (32%)/VL=UD
Switched to Epizcom, Reyataz and Norvir
(Interrupted for 2 months with only Epizcom & Reyataz)
July 11 CD=520 (28%)/VL=UD
Oct 11 CD=771 (31%)/VL=UD(<30)
April 12 CD=609 (28%)/VL=UD(<20)
Aug 12 CD=657 (29%)/VL=UD(<20)
Dec 12 CD=532 (31%)/VL=UD(<20)
May 13 CD=567 (31%)/VL=UD(<20)
Jan 14 CD=521 (21%)/VL=UD(<50)

Offline RapidRod

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #10 on: December 06, 2007, 10:44:30 AM »
Even though he didn't disclose which was wrong. Getting assaulted is a whole different matter.

Offline Robert

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #11 on: December 06, 2007, 11:56:36 AM »
This guys defense is reprehensible.  Sounds like something he and his lawyer conjured up to parley the life sentence to an indeterminate one. 

If you ask me, this Summers guy, was intent on beating up/robbing this guy from the get go.  Given the heavy sentence, I seriously doubt it was this guy's first offense.  He's just a bad seed.

That the judge accepted the logic is just stupidity.  Although this argument was only used in the sentencing, I guess the fear is that such "Provocation" can be used as a defense in murder.  ("This guy has AIDS!!  I had to defend myself!  He was going to kill me.")   Self defense.

 robert

..........

Offline BassMan

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #12 on: December 06, 2007, 01:26:23 PM »
If condoms had been used, surely any defence lawyer worth his salt should have been able to successfully argue that the HIV positive man put Summers at no risk, and that therefore Summers' behaviour was totally indefensible?

However considering that Summers' barrister said the poz guy had "deceitfully exposed him to risk of infection with HIV" and "put this appellant at a direct risk from that disease", and considering the judges remarks that he had put Summers "at a direct and very serious risk of contracting a terminal illness", it's my guess that condoms weren't used.
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Offline Ann

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #13 on: December 06, 2007, 01:43:28 PM »

it's my guess that condoms weren't used.


I'm not so sure. Have a look at the Am I forum sometime and see how many think it doesn't matter if condoms are used or not. Just because some guy's a judge doesn't mean he understands hiv transmission.

I almost hope condoms weren't used, but somehow, I suspect they were.

Ann
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"...health will finally be seen not as a blessing to be wished for, but as a human right to be fought for." Kofi Annan

Nymphomaniac: a woman as obsessed with sex as an average man. Mignon McLaughlin

HIV is certainly character-building. It's made me see all of the shallow things we cling to, like ego and vanity. Of course, I'd rather have a few more T-cells and a little less character. Randy Shilts

Offline vokz

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #14 on: December 06, 2007, 02:41:07 PM »
I have been thinking about this.

Section 146 of the Criminal Justice Act (2003) empowers courts to impose tougher than tariff sentences for hate crimes - provided that the judge(s), in sentencing, clearly state in open court that he/she/they consider hate to be an aggravating factor and make it clear what extra elements they are adding to the sentence for the aggravation.

The actual definition of a hate crime is left deliberately broad; but the Association of Chief Police Officers (ACPO) defines hate crime as "a crime where the perpetrator's prejudice against ANY identifiable group of people is a factor in determining who is victimised".

The law also states that the aggravating factor only has to be ďperceivedĒ (i.e. that there isnít the same burden of proof that there is for the crime that was aggravated).

I wonder if the prosecution could have countered the provocation mitigation with a claim that Summers' crime actually constituted a hate crime against people living with HIV.


I almost hope condoms weren't used

I hate to say it, but so am I .. not that it will help to dispel the common perception that we are all selfish and irresponsible plague spreaders.
« Last Edit: December 06, 2007, 03:11:15 PM by vokz »

Offline penguin

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #15 on: December 06, 2007, 03:24:48 PM »
It is my understanding that the sex was consensual, and that hiv transmission did not occur as a result of this incident. Condoms/no condoms, dunno, I suspect not, does it matter

I think what worries me most about this (aside from the whole "terminal illness.." language, & the burden of responsibility thing) is that … while it don't condone the crime, a defence of "provocation" implies that the courts believe mr summers doesn't have to bear full responsibility for his actions, & acted in a way that another reasonable/normal joe bloggs might, given similar circumstances. 

Which in my mind, says the CPS believe mr summers isn't just a nut job, one-off sadist with zero impulse control (& a thieving one at that) - this, to me, seems a far, far bigger problem than anything related to hiv+ people's behaviour  :(

kate

ps- vokz, i think the prosecution would be kinda stuck to do much now re further charges etc -  as i understand the victim is considered non-competent, or whatever the wording is, due to damage caused bythe assault.
« Last Edit: December 06, 2007, 08:08:11 PM by penguin »

Offline vokz

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #16 on: December 06, 2007, 03:52:39 PM »
ps- vokz, i think the prosecution would be kinda stuck to do much now re further charges etc -  as i understand the guy is considered non-competent, or whatever the wording is, due to damage caused bythe assault.

Yeah, you could be right .. although it is my understanding that it isnít only the victimís perceptions that can be taken into account. It can be the perception of the group as a whole (fear factor) .. or even just the judgeís (on the basis of the evidence).

Last year, in the trial of the men who killed Jody Dobrowski on Clapham Common, the judge ruled that murder was aggravated by homophobia. Given that Jody was dead, that was done solely on the basis of the judgeís perception of hatered of against an identifiable group (gay men).

Offline penguin

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #17 on: December 06, 2007, 05:17:31 PM »
good point, i had forgotten they added the aggravated bit. perhaps still wouldn't fly, cos of the "risk to life" concept thing that non-disclosure prosecutions based on..? you don't really have that aspect with homophobic/racist etc motivated crime

(i am having trouble explaining what i mean tonight... fog has descended on the brain)

kate


Offline Queen Tokelove

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #18 on: December 06, 2007, 05:43:25 PM »
I agree with Matty this shall be a good discussion. I will probably get slammed for my views on disclosure. We just had a discussion about this in the women's thread not long ago....I didn't read the article, I can get the jist of it just by reading what others have said so far....And as I have said in past posts, for those of you who can disclose immediately that is great but for some it is not easy. This is a demon I have been dealing with personally lately....Back to the article though...

Ok, so the guy didn't disclose, does anyone care to why? Maybe this man is ashamed? Maybe he was betrayed when he did make an attempt to disclose in the past? These are things we don't know besides the main point of it being if a condom was worn or not?

Not sure where the neg met the poz guy at but where was the neg guys responsibility in all this? This tells me that he usually doesn't wear condoms and goes by what the other person looks like....ex...the poz guy obviously didn't look sick... ::) Which goes to tell me that the neg guy was obviously not educated on the transmission of hiv.

But what also gets me is if he is so worried about being infected, whipping the poz guy's ass would seem like the last thing he would do considering transmission could happen from neg guy cutting his hand while punching the poz dude in the mouth or something....Oh, wait, maybe he had on some gloves while he was whipping dude's ass... ::)

But like someone else said, us, pozzies are always made to look like the villian..... >:(
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Offline Just John

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #19 on: December 06, 2007, 05:51:06 PM »
If condoms had been used, surely any defence lawyer worth his salt should have been able to successfully argue that the HIV positive man put Summers at no risk, and that therefore Summers' behaviour was totally indefensible?

However considering that Summers' barrister said the poz guy had "deceitfully exposed him to risk of infection with HIV" and "put this appellant at a direct risk from that disease", and considering the judges remarks that he had put Summers "at a direct and very serious risk of contracting a terminal illness", it's my guess that condoms weren't used.

The guy who was attacked has been a friend of mine for over 20 years. I'm not having a go at you BassMan; or anybody else for that matter for making assumptions, but, I can honestly tell you that the victim has absolutely no recollection of the events before, during or for some time after the attack so the use of condoms or otherwise is solely at the word of his attacker.

I've only just seen this thread and so haven't had a chance to speak to him about it and I know he'll be in bed now so I'll do it tomorrow. After that I'll tell you all the facts as they were pieced together by the police.

Modified to add - insofar as he he will allow me to. I'm sure that his knowing that it's now such an open topic will scare him a little.
« Last Edit: December 06, 2007, 06:01:07 PM by Just John »
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Offline newt

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #20 on: December 06, 2007, 06:22:53 PM »
Obviously the barrister will say cheap things about the guy cos he wants his thieving client's sentence changed.  It's the HIV version of she wore a short skirt so she deserved it guv. But it don't mean that anyone bought it.

Odd now that in English law the gay rage argument won't wash but the HIV rage one will.  ???
« Last Edit: December 06, 2007, 07:19:15 PM by newt »
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Offline Matty the Damned

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #21 on: December 06, 2007, 06:37:18 PM »
Yup the homosexual panic defence is no longer acceptable in Australian common law either.

MtD

Offline vokz

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #22 on: December 07, 2007, 02:23:07 AM »
Kate,

The explanation works just fine for me ;)

As I said, I am just wondering if they could have done it .. not whether they should have done it.

To be honest, my feeings are that the prosecution probably couldnít have introduced the aggravation argument during the defendants appeal against the sentence (I think they would have had to have done it at the time of the original sentencing .. and given that I canít find any reports on the original trial, maybe they did .. or maybe they didnít feel the need to do it if he wasnít offering mittigation at that time).

It will be interesting to see what light Just_John can shed on the case for us (thanks John).

Offline BassMan

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #23 on: December 07, 2007, 04:18:31 AM »
I'm not having a go at you BassMan; or anybody else for that matter for making assumptions, but, I can honestly tell you that the victim has absolutely no recollection of the events before, during or for some time after the attack so the use of condoms or otherwise is solely at the word of his attacker.

No problem John, and thanks for getting involved in the discussion. I hope your friend feels able to shed a little light on what happened because it's of great relevance to many of us here. Sorry for making assumptions, but I - along with others - was just trying to read between the lines to figure out what might have happened in the absence of important details. And if condoms weren't used, I'm in no way implying that that's necessarily something to chastise your friend for; as Queen so rightly says, disclosure is a complex thing and there are all sorts of reasons why it might not always happen as often as it should. We don't know where the two men met and that may or may not be relevant, but in my experience many gay men use non-verbal means of communication in casual sex encounters (saunas, cruising grounds, cottages, darkrooms etc.) which leaves itself wide open to misinterpretation. Hell, I've been in sex environments where there were so many poz guys it almost made sense for the neggies to have to disclose!

I guess my main point is that Summers had a responsibility to look after his own sexual health and if he was so HIV-phobic, he should have asked first. Unfortunately, like so many he appears to have chosen to offload that responsibility onto the shoulders of a casual sex partner of unknown status. It suppose it just really pisses me off that so many neggies puts themselves (or perceive that they put themselves) at risk like that, and then when it all goes tits up, they run squealing that they're some kind of "victim" when all they're a victim of is their own ignorance and stupidity. And the whole provocation argument just beggars belief.

Rant over.

Carl
Manchester, UK
Diagnosed December 2002
CD4 810 VL 750,000

Started meds October 2004
CD4 405 VL >100,000

Latest Results: October 2009
CD4 888 38%, VL undetectable
on fosamprenavir/ritonavir & Truvada

VL undetectable since November 2005

Offline Ann

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #24 on: December 07, 2007, 04:50:10 AM »
The guy who was attacked has been a friend of mine for over 20 years. I'm not having a go at you BassMan; or anybody else for that matter for making assumptions, but, I can honestly tell you that the victim has absolutely no recollection of the events before, during or for some time after the attack so the use of condoms or otherwise is solely at the word of his attacker.

I've only just seen this thread and so haven't had a chance to speak to him about it and I know he'll be in bed now so I'll do it tomorrow. After that I'll tell you all the facts as they were pieced together by the police.

Modified to add - insofar as he he will allow me to. I'm sure that his knowing that it's now such an open topic will scare him a little.


Hi John,

Please tell your friend for me that my heart goes out to him. Nobody deserves to get such a horrific beating for non-disclosure. I also hope he doesn't get too freaked out that his case is being discussed here - in fact, it would be nice if he could join us. I don't mean that as in "so he can tell us the details himself" either. I'm thinking maybe he could find support here in general. He's one of us, after all.

Hugs,
Ann
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Offline Just John

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #25 on: December 07, 2007, 07:09:18 PM »
Ever wish that youíd never started something??

This has opened up a whole can of worms for me and Iím now left with more questions than answers. I felt that I had to reply to the post because I knew that the truth lay elsewhere than in some of the conjecture that I was reading and that it might have got hurtful if it continued, Iím not sure if even now Iím any closer to the truth Ė but here goes:

Last night I was surprised at what I was reading, first of all the shock of realising that the article was about someone that I thought I knew well and then the wondering why, despite all the conversations that weíd had about the attack and the hours spent giving him moral and practical support since, that he hadnít told me anything about the appeal.

Before I go any further, I think that itís important to explain that, whilst we have been friends for nearly 20 years weíre not the closest of friends. Weíre really sisters of the same coven who scream and bitch about all and sundry each time we meet, although serious discussions do take place sometimes. Although weíve discussed HIV Iíve never revealed my status nor questioned hers although to be honest after my diagnosis, I thought that there were a lot of similarities between my own seroconversion and a period of illness that followed and one that sheíd had about three years previously and I formed my own conclusion.

I spoke to Tim at lunchtime and told him what Iíd read, he sounded as shocked as I had been because he said that that was the first time that he knew about any appeal, I had to read it to him a couple of times before it registered. He contacted the Police Liaison Officer who knew nothing about it either and put him in touch with the Crown Prosecutorís office who also claimed to know nothing but would contact the appeal court to find out. Bearing in mind that the entire British legal system grinds to a halt shortly after lunchtime on a Friday they probably just put him off. He has promised to let me know their explanation of how this came to pass but itíll probably be Monday before there is anything further to add.

Because Tim has absolutely no recollection of events leading up to, during or for a long time after the attack, the Police had to piece together the probable course of events from CCTV footage and talking to witnesses who saw the pair of them before the attack.  Because the guy pleaded guilty and there was nothing that Tim could add to the evidence or be cross examined about, there was no need for him to attend the trial and he wasnít mentally strong enough to cope with it at the time.

So here, is what Tim tells me is the provable bit:

Apparently they met in a bar where Tim had been drinking since about five oíclock and left at about nine thirty taking the tram back to Timís apartment, calling at a shop on the way to buy some more beer and stuff. There is then CCTV footage of Summers carrying stuff from the apartment and loading into Timís car at intervals throughout the night, he drove the car away at seven thirty the following morning. Tim was found by his neighbour at about two oíclock the following afternoon lying in a dried pool of his own blood in the middle of his living room. He was barely alive and was probably only so because his underfloor heating kept him warm. Nobody expected him to survive and he spent the next five weeks in a coma in intensive care before slowly recovering, over many months to some sort of normality. He is now blind in one eye, deaf in one ear and has none of his own teeth left, he has also started to have blackouts for which heís currently undergoing tests; he was recovering pretty well from the mental scars Ė until now. Summers was caught a few days after the attack in London where he was trying to sell what was left of Timís stuff. At first he denied ever being near the scene but when faced with what the Police knew already, he caved in and admitted that heíd been there. He then tried to say that heíd been tricked into going back to the apartment where Tim had then tried to rape him and that heíd acted in self defence. The Police, to give them credit for once, seemed to do a thorough investigation and faced him with evidence of another couple of violent attacks, seemingly of a homophobic nature which had occurred during his previous prison sentences and also letters that heíd written to another inmate which indicated that, although he denied being gay, that he had some pretty strong gay tendencies. When faced with this he then admitted that his main motive for the attack was robbery and that he thought that Tim was already dead straight after the attack.

And now the rest:

For what happened after they got back to the apartment there is only Summersí story, there is no physical evidence that they had any kind of sex at all or that if they did, whether condoms were used. All I know is that in the past I have heard Tim loudly slate and berate other people for bare-backing and that in his apartment there is what I laughingly call his condom drawer. One thing of which I am certain is that if sex took place without a condom then it wasnít because they werenít available.

I honestly canít imagine that Tim would disclose his HIV status to a complete stranger especially when, even after todayís conversations, he maintains that heís negative Ė but!!

Apart from the questions raised by the appeal being allowed, which is after all what this threadís about? Iíve now got some serious misgivings about what Timís told me and canít help wondering where this is all going to lead or how Iím going to approach the topic with him tomorrow or in the future. I can understand him not wanting to disclose his status to anyone, I donít; but whatever his status he needs to have some say in whether the appeal should be allowed or not, surely. I almost revealed my status to him today in an attempt to try to reassure him in some way but now Iím glad I checked myself Ė or am I? Should I not empathise with him and if I do, how? Does any of this make sense?

Ho Hum!!
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Offline keyite

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #26 on: December 07, 2007, 08:46:33 PM »
Thank you John, that really helped to cast some more light on the case. It sounds to me like - well knowing that the 'homosexual panic' type of defence wasn't going to wash - HIV instead served as a convenient but entirely fictional smokescreen. As defence strategies go that was one pretty likely to fly - with all the panic about 'evil HIV spreaders' whipped up by the media and in the courtrooms I suppose it was no surprise appeal judges handed out the 'discount' they did. One can only hope 'indeterminate' in his case ends up meaning something very similar to a life sentence.

Whether or not your friend really is positive is to me not all that important to the case: either way he didn't deserve to be attacked in such a brutal and callous way. I hope he will be able to make further progress health-wise and that he'll be able to piece his life together again. If he really is positive then you disclosing to him might indeed be just the encouragement he needs to feel able to reciprocate - but I do understand your caution in this regard.

Beggars belief he wasn't contacted by police or the courts about the appeal - so incompetent and insensitive. I am guessing this also means no character witnesses on his behalf were sourced and brought forward in court, neither first time round or during the appeal - or would that have been inadmissible?

Offline Just John

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #27 on: December 07, 2007, 09:11:30 PM »
I am guessing this also means no character witnesses on his behalf were sourced and brought forward in court

Probably just as well dear. ;D

Seriously; it was always a joke between us that if ever he was found murdered, his lounge rug would provide enough DNA evidence to convict half of North Manchester. :o ;D

John

P.S. apologies to anyone else who posts here but I'm off to bed now and have a hectic weekend scheduled, I'll be back for an update on Monday though.
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Offline vokz

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #28 on: December 08, 2007, 04:23:48 AM »
Thanks John.

There are some strange disconnects in all of that, so I see what you mean about it raising more questions than it answers.

Offline John2038

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #29 on: December 08, 2007, 07:16:57 AM »
Condom, disclosure.

That's are two only options.

Mutual consent after disclosure is in the grey area and could be debated.


Offline BassMan

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #30 on: December 08, 2007, 07:35:30 AM »
John

Thanks for taking the time to speak to Tim and for posting his version of events. This whole business ties itself ever more up in knots.

In my opinion, whether or not your friend is positive is entirely relevent to the legal case as it forms the entire basis of Summers' appeal i.e. that Tim 'provoked' Summers by failing to disclose his status.

The main question I would have is that if Summers' appeal was based on the possibility that Tim put him at risk of HIV, how did the court draw that conclusion? I cannot believe that even the most naieve and out-of-touch judge would swallow that argument where no evidence can be presented that 1. one of the men is HIV+ and that 2. sex actually occurred? Where did the court get the information that Tim is positive? This leaves us with the possibility that either Tim is HIV-ve, in which case Summers' basis for appeal is blown completely out of the water because it's based on incorrect evidence presented at the appeal; or that he is HIV+ve and chooses, for whatever reason, not to disclose his status (which is of course entirely his choice). But again, in the absence of evidence that they even had sex, where is the risk of transmission?

It is true that this case has prompted a lot of conjecture, and I've certainly been responsible for some of it. But we are presented with a seemingly nonsensical decision made by a British court, based on information that is, at best, sketchy. Where the truth seems to be as poorly lit as it is here, I think any conjecture has been driven by a desire to try to understand how this decision could have come about, and we can only do this by trying to think through all of the scenarios that could have led the court to come to such an outrageous decision. If Tim is negative (as I hope) it would be a travesty if Summers got away with this appeal. If Tim is positive, I can understand why he has disclosure issues; I'm sure we all can. But by allowing this appeal to stand, isn't he tacitly disclosing his status anyway?

If Tim was my friend I would have no problem empathising with him for all the reasons I've argued in earlier posts; I can't believe anyone here has anything other than complete sympathy for Tim, and very little for Summers.

Carl
Manchester, UK

edited for typo.
« Last Edit: December 08, 2007, 09:13:24 AM by BassMan »
Diagnosed December 2002
CD4 810 VL 750,000

Started meds October 2004
CD4 405 VL >100,000

Latest Results: October 2009
CD4 888 38%, VL undetectable
on fosamprenavir/ritonavir & Truvada

VL undetectable since November 2005

Offline Dachshund

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #31 on: December 08, 2007, 09:06:06 AM »
Condom, disclosure.

That's are two only options.

Mutual consent after disclosure is in the grey area and could be debated.



Sorry my friend, your two absolutes AREN'T the only options.

Offline vokz

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #32 on: December 08, 2007, 09:36:27 AM »
If Tim was my friend I would have no problem empathising with him for all the reasons I've argued in earlier posts; I can't believe anyone here has anything other than complete sympathy for Tim, and very little for Summers.

I donít think anything can exonerate Summers and I think he deserves to spend a very long time in prison .. but, on the basis of what we have heard, I certainly canít say that I have ďcomplete sympathy for TimĒ.

I am not saying that it isnít possible to have complete sympathy for Tim; but at the moment there are just far too many things that simply donít add up and I am not willing to make the assumptions that I would have to make in order to get to a point where I could say that.

Offline BassMan

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #33 on: December 08, 2007, 10:01:36 AM »
I am not saying that it isnít possible to have complete sympathy for Tim; but at the moment there are just far too many things that simply donít add up and I am not willing to make the assumptions that I would have to make in order to get to a point where I could say that.

Fair comment.
Diagnosed December 2002
CD4 810 VL 750,000

Started meds October 2004
CD4 405 VL >100,000

Latest Results: October 2009
CD4 888 38%, VL undetectable
on fosamprenavir/ritonavir & Truvada

VL undetectable since November 2005

Offline vokz

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #34 on: December 10, 2007, 06:01:21 AM »
I meant to post this the other day, but I forgot.

No matter what our individual personal views on shared responsibility are (and whether shared responsibility is also the same as equal responsibility), the law in all parts of the United Kingdom is now very clear in stating that legal responsibility lies with the person who is living with HIV .. and that if you have unprotected sex, and choose to withhold details of your HIV-positive status, then your sexual partner cannot be considered to have consented to that unprotected sex.

I would imagine that is why the judges don't seem to have made any reference to Summers' part in any choices that he claims were made.

OK, so the reality is that you probably aren't likely to face prosecution unless the person you have sex with subsequently tests positive; but as I think this case seems to demonstrate, it certainly can affect how the courts view your part in something.

For reference:

If ever you find yourself at the wrong end of the law, contact THT Direct on 0845 1221 200 and they will be able to help you get in touch with a specialist solicitor.

More detailed information on the law and criminal prosecutions for transmitting HIV can also be found on the THT website: http://www.tht.org.uk/informationresources/prosecutions/

AIDSmap also have a leaflet ('The use of phylogenetic analysis as evidence in criminal investigation of HIV transmission') with more detailed information on (the unreliability of) the sort of virological evidence that the Police and CPS are likely to try to use if you find yourself prosecuted. It can be downloaded at http://www.aidsmap.com/files/file1001199.pdf
« Last Edit: December 10, 2007, 06:58:43 AM by vokz »

Offline Just John

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Re: English Appeal Court rules that HIV non-disclosure may be 'provocation'
« Reply #35 on: December 10, 2007, 06:44:21 PM »
Well I donít really have too much more to add. Iíve spoken to Tim several times over the weekend, primarily to make sure that he was OK, obviously I dropped something of a bombshell on him on Friday.

He is OK although initially he was quite shaken at first as no doubt you can imagine.

Now Iíve still not asked him outright about his status and I never will although, reading between the lines my initial assumption about his status was correct, obviously he just doesnít want to talk about it at the moment and as it makes no difference to me Iíll let sleeping dogs lie. His attitude is ďlet people believe what they want to believe and F*$k Ďem if they want to think the worstĒ.

He wasnít present at the original trial and although he was given the opportunity he didnít want to present a statement of any kind to the court. The CPS apparently decided not to inform him about the appeal because it was an appeal against sentence only, which they had decided was unlikely to succeed given that no new evidence was going to be presented, even after the appeal was won the sentencing difference is so subtle as to make little or no difference, in fact it could even mean that, as Summers now has to prove that he is safe to be released he might even have inadvertently increased his own sentence.

Now all of that was told to me by the man himself and I think that it rather effectively, in my opinion confirms his status, the CPS wouldnít have allowed allegations to be made at the appeal which werenít in the original trial, the details of which Tim had the opportunity to review and was led through by his legal rep. Iíve known Tim for a long time and have heard him berate other people for not wearing condoms and as Iíve already said there were always plenty available at his flat for passing trade; can I believe that he didnít use a condom? After a few drinks who knows.

There is only Summersí word that sex took place at all let alone whether condoms were used and as Tim has absolutely no memory of the night in question he can neither confirm or deny any of it, one certainty is that Tim didnít invite him back for a macramť session; so:-

It really leaves aside the personal element and the discussion must turn on the basic concepts of whether such a defence or mitigation is right?

My own view is that in any casual encounter, both, or all parties involved have an equal responsibility to negotiate the boundaries and the level of safety and that if they fail to do so they are equally culpable and so the mitigation shouldnít be allowed, simple as!

By the way thanks for the links Vokz, I hope I never need them, but!


John
Some cause happiness wherever they go; others, whenever they go.

 


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