Female Pop Star Faces Charges After Male Sex Partner Contracts HIV

Nadja Benaissa of the German pop group No Angels admitted in court that she withheld information about her HIV+ status from a male sexual partner who contracted the virus, as well as from two others, the New York Times reported on August 17. The singer is now facing charges of bringing "grievous bodily harm" to the man, who says that he contracted the virus from Benaissa but only heard about her HIV+ status from a third party.

German law does not require that HIV+ persons disclose their status to sexual partners. But the law does hold accountable people who know that they are HIV+ and do not take precautions so as not to transmit the virus to others, such as using condoms or disclosing their status to prospective romantic partners. Spreading the virus deliberately, or through negligence, can carry a penalty of ten years in prison.

The New York Times article said that the 28-year-old Benaissa told the court she had spent two years as a homeless teen and had been addicted to drugs. At age 16, Benaissa discovered that she was HIV+ when she became pregnant.

At age 18, however, Benaissa became a pop star after her group, No Angels, won a contest and released a best-selling CD. Benaissa kept her HIV status to herself, she said, to protect the group.

The article reported that, according to the German press, Benaissa prepared a statement that was read to the court by her lawyer. In the statement, Benaissa declared, "The last thing I wanted was for my partner to get infected." She also expressed her regret at having been "absolutely careless." The article recounted that the singer was taken into custody just before going onstage at a concert in Frankfurt in 2009.

Benaissa's accuser, identified only as Ralph S., confronted the singer in court, telling her, "You have created a lot of suffering in the world."

But Benaissa has her defenders, including a spokesperson from German AIDS organization Deutsche AIDS-Hilfe ("German AIDS Help"), Carolin Vierneisel, who noted that the sexual contact between Benaissa and the man who says he contracted HIV from her was consensual, and suggested that the male partner bore some responsibility for not having used a condom. Said Verneisel, "The criminalization of H.I.V. transmission, as shown in this case, doesn't support H.I.V. prevention efforts. On the contrary, it fosters the stigmatization of H.I.V. positive people."

It is that stigmatization that forms the core argument from critics of laws that penalize HIV+ people for sexual contact with others or even for spitting at them--although HIV is not spread through contact with saliva. In the U.S., 32 states have laws on the books--many of them passed during the height of fear and anxiety over AIDS, in the 1980s and early 1990s--that criminalize HIV-positive individuals, in many cases in terms of their sexual activities, but in at least two states--Pennsylvania and Louisiana--for biting or spitting at others. In Colorado, a HIV+ man faced charges of second-degree assault earlier this summer, after being accused of spitting at a technician who had come to his house to install a court-ordered monitoring system following a drunk-driving incident.

'Bioterrorism' and Assault with a Deadly Virus

In some instances, a person's HIV-positive status can leave that person liable to additional charges of "assault with a deadly weapon," the weapon being HIV. In one case, a HIV-positive man named Phillipe Padieu was charged last year in McKenney, Texas on six counts of aggravated sexual assault with a deadly weapon after having sex with half a dozen women; Padieu was found guilty and sentenced to a cumulative total of 250 years. In Dallas, Nathaniel Tumbwe faced rape charges in connection with an alleged sexual assault on Carolyn Hudson, as well as charges of assault with a deadly weapon--the weapon in question being HIV, because Tumbwe is positive. In Gatesville, David Castillo, the DA for Coryell County, said that he would try a suspect believed to be HIV positive on similar charges, after the suspect allegedly sexually assaulted a 16-year-old boy. And in one case decried by critics, a HIV+ suspect in Michigan was accused of bioterrorism for biting another person.

But advocates for people living with HIV disagree about the application of the law in these cases. "HIV should not be an aggravating factor unless there's some evidence that he intended to do some harm and did some harm," said the executive director of the Center for HIV Law and Policy, Catherine Hanssens. "Criminal law in every state is adequate to deal with it," added Hanssens. "But to treat it as evidence of guilt and a deadly weapon wasn't appropriate in 1985, and it isn't appropriate now. To refer to HIV as a deadly weapon in 2010 speaks of just unforgivable ignorance."

In one notorious case, a Bronx man named Nushawn Williams spread HIV to more than a dozen female sexual partners. He was sentenced to serve 12 years in 1998--but is still in prison now on civil confinement, which is ordinarily used on sexual predators as a means to keep them incarcerated past the term of their sentences. Williams, whose sentence was for statutory rape and reckless endangerment, maintains that he did not knowingly spread the virus.

Worldwide, the question of whether sexually active people with HIV should be face criminal charges if they knowingly expose others to the disease has been thorny. In Uganda, a proposed bill to punish gays with life imprisonment or worse stipulates that the penalty will be capital punishment for HIV-positive men who have sex with other men. In New Zealand, an Auckland man was charged with having sex with a number of partners after being diagnosed as HIV-positive; half of his sexual partners reportedly tested positive after their encounters. The suspect killed himself in his jail cell last May.

A Canadian man faced charges earlier this summer for attempted murder and exposing another individual to a "noxious substance"-- the substance in question being HIV. An 18-year-old sexual partner of HIV+ suspect Steven Paul Boone told the police that he had been diagnosed with an unspecified sexually communicated disease following sexual contact with Boone. When Canadian authorities asked for other sexual partners to come forward, four additional counts of attempted murder against him resulted.

Boone's photo was released by Ottawa police following the accusations made by the unnamed 18-year-old. A May 7 CBC story said that Canada's laws define exposing others to HIV as a form of "aggravated sexual assault." The article did not say that Boone deliberately exposed others, but a June 29 Ottawa Citizen article reported that Boone and the 18-year-old had engaged in unprotected sex several times. Moreover, a press release from the Ottawa police indicated that Boone had "knowingly failed to disclose details to the victim regarding his infectious medical condition," and said that Boone had found numerous sexual partners online.

In Sweden, an HIV-positive physician was jailed in June for having had unprotected sex with two men although he allegedly knew of his own positive status. The physician, who was not named in media reports, was convicted of reckless endangerment and sentenced to a ten-month term. He was also required to pay one of the men with whom he had unprotected sex a sum of about $3,500. Two other charges--aggravated assault and a charge stemming from one of the two men testing HIV+--were thrown out, because it could be proven that the defendant had been the one to transmit the virus to the HIV+ victim. The other victim tested HIV negative.

The story said that the ruling would be appealed by the victims' lawyer, who insisted that, "There can be no other person that has infected my client. But we have to obtain a supplementary investigation to prove this."

The Experts Speak

In an Apr. 26 article about the criminalization of HIV+ people, EDGE checked in with several experts. Their take: just as in any other case in which deliberate harm is the intention, perpetrators who seek to infect others with HIV should be held to account under the law. But that's a distinct matter from laws specifically targeting HIV-positive people; such laws, the experts told EDGE, are simply discriminatory.

"There are many things that are transmitted sexually that carry significant risk of death," said Dr. Stephen Boswell, president and CEO of Fenway Health in Boston. Added Dr. Boswell, whom EDGE interviewed via phone, "Unless there are laws for every infection that you need to inform a partner about, it seems rather inconsistent to me that they would focus on HIV. Some of these risks are every bit as great." Boswell regarded special treatment under the law of HIV+ suspects as a matter of "outright prejudice."

Such laws are unnecessary and have no proven deterrent effect, according to Bebe Anderson, HIV project director at Lambda Legal. The organization's website lists the statutes in the 32 states that criminalize HIV+ people. Only some of the state statutes require HIV-positive individuals to inform sex partners of their status, Anderson pointed out in an e-mail interview; others criminalize conduct whether or not the person informs a sex partner. Several criminalize conduct that poses virtually no risk of HIV transmission.

"Lambda Legal is opposed to laws that single out people living with HIV for prosecution or enhanced penalties based on conduct that would not be illegal if engaged in by someone who doesn't have HIV," Anderson said. But rather than offering protection from HIV, the laws actually cause some harm, she pointed out, explaining, "These laws serve to stigmatize people with HIV." Moreover, "HIV stigma has been shown to have a detrimental effect on both HIV prevention efforts and treatment of people living with HIV. It leads some people to avoid getting tested, refrain from obtaining needed healthcare or forego antiretroviral medications."

Media coverage of prosecutions makes matters worse, Anderson maintained. "It tends to sensationalize the issue and creates a false impression that intentional transmission is a widespread problem, when in fact such incidents are very rare." While Lambda Legal believes such laws ought to be repealed, Anderson said she is not aware of any current efforts to do so.

Anyone who has contemplating having sex with a complete stranger needs to deal with the issue of responsibility. But when one partner is HIV+, the law may well bring a special burden of responsibility to bear. The issue is fuzzy at best, leading to difficult--and not at all consistently answered--questions of civil and criminal liability. How much responsibility does the HIV+ person have? How much responsibility does the other party have?

Michael Weinstein, president of the Los Angeles-based AIDS Healthcare Foundation, the nation's largest provider of AIDS/HIV medical care, told EDGE during a phone interview, "If you're making a decision in the heat of the moment either out of passion or are already involved, you're very likely to make less wise decisions."

Added Weinstein, "In a casual sex encounter, the person who carries an infection and has the ability to infect another person has the greater share of responsibility for preventing a new infection. It's common sense to assume the other person is positive and take the necessary precautions against HIV and a host of STDs. No guidelines ultimately are going to decide who to trust." Weinstein's thumbnail guide to legally safer sex: a person should always use protection with a new partner, and keep using protection until and unless the two people involved enter into a long-term relationship.

Such advice is crucial in a social milieu in which quick, fleeting relationships are the norm for many. Many gays meet sex partners through the Internet; but even here, there is some sense of social responsibility. At least one company providing such online meeting places believes it has a responsibility as well--to educate members about precautions they should take.

Online Buddies operates Manhunt.com, the popular social networking web site that has four million members worldwide. The company has what it calls an online health center offering a plethora of information on resources, education, HIV testing, condoms, and research.

David Novak is the senior pubic health strategist at Online Buddies. Before joining the company, he had been national syphilis program coordinator at the Centers for Disease Control and Prevention. Manhuntcares.com, Novak told EDGE, "provides practical, relevant health resources and web links for interested Manhunt members and the GLBTQ community at large.

"Over the past seven years," added Novak, "Manhunt has partnered with hundreds of non-profit community-based organizations and public health departments to provide individualized, local health information for the benefit of our members."

Safer sexual contact is everyone's responsibility, regardless of HIV status, suggested Dr. Abigail Zuger, a New York City physician who specializes in infectious diseases. Zuger wrote in a New York Times opinion piece that it's time to get beyond blame for why people get HIV, illustrating her point with the piquant question, "Whose fault is a new HIV infection, really? Is it mine, for giving it to you, or is it yours, for being stupid and cavalier enough to get it?"

EDGE contributor Peter Cassels contributed to this story.