A 27 year-old former civil engineer and a 48 year-old married man who had casual sex at different times with a 37 year-old man (who subsequently tested HIV-positive) have each been sentenced to 18 months in prison because they did not disclose they were HIV-positive.
This is the first time that I’m aware that one complainant has resulted in two different convictions, and highlights the unbelievable unfairness of a criminal justice approach to HIV prevention. There have now been three convictions for HIV non-disclosure in Singapore – all of those prosecuted have been men who had sex with men during a single encounter. The first, in 2008, was simply for performing oral sex, for which there is no HIV risk for the receptive partner.
The 27 year-old was the first person to be sentenced under the 2008 Infectious Diseases Act for having oral sex (without condoms) and anal sex (with condoms) and not disclosing he was HIV-positive with the 37 year-old in January 2009, according to a report on channelnewsasia.com. He also had an undetectable viral load. Taken together, this means there was no risk to his partner.
In his mitigation, he said he found it difficult to disclose his HIV-positive status. He said the intention was not to harm the victim, but was one of "self-protection" as he was afraid of being "abandoned by his social circle". He told the court his condition was under control by medication when he met the victim and that they had protected sex.
However, the prosecutor for the Ministry of Health, K Kalaithasan, called for a jail term of more than a year, saying the victim would not have engaged in sexual activity if he had known about the man’s HIV status. In sentencing, District Judge Siva Shanmugam said the nature of the offence was "grave". He said by failing to inform the victim for his "own selfish reasons", the offender had "endangered the safety of others".
The second man, who had sex with the 37 year-old in May 2009, was also given an 18 month sentence. He says that he couldn’t have been the source of the complainant’s infection because he was the receptive partner and the 37 year-old had used a condom. Ironically, the complainant could not confirm that he used a condom (and surely, as a ‘top’, it was his responsibility to wear one!)
In a remarkably sympathetic report in The Straits Times, the man reveals how the prosecution has had a devastating effect on his wife and how he had considered suicide.
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