Thursday, August 26, 2010

Speaking of Condoms: Responsibility for HIV Transmission--Self or Shared? Gender Bias?

Nadja Benaissa, singer of German girl band "No Angels", sits in a courtroom in Darmstadt, Germany, Monday, Aug. 16, 2010. The German singer has gone on trial accused of causing bodily harm by having unprotected sex despite knowing she was HIV-positive. Nadja Benaissa is alleged to have infected a man with the virus in 2004. Boris Roessler/AP Photo

Since the topic of condoms and protecting oneself (and others) from Sexually Transmitted Diseases (STD) of which the HIV virus is the most deadly, came up in the post, Advice to Saudi and Other Foreign Students Studying Abroad--Part I Chiara's 10 Recommendations and 10 Tips and the comments there, I thought I would include this article about a recent sentencing in Germany to no jail time for Nadja Benaissa, a German singer who infected her boyfriend with HIV when she had unprotected sex with him, knowing about her HIV +ve status, but keeping it secret.

The article raises a number of issues, which are addressed in the questions that follow.

German girl band singer walks free on HIV conviction


Darmstadt, Germany — The Associated Press Published on Thursday, Aug. 26, 2010 7:52AM EDT Last updated on Thursday, Aug. 26, 2010 10:40AM EDT

A singer in a German girl band broke down into tears Thursday after a court convicted her but sentenced her to no jail time for causing bodily harm to her ex-boyfriend by having unprotected sex with him despite knowing she was infected with HIV.

Nadja Benaissa, 28, was given a two-year suspended prison sentence and 300 hours community service after she was convicted in a Darmstadt administrative court. She faced a possible 10 years behind bars.

The court ruled that Ms. Benaissa had infected a former boyfriend with the virus that causes AIDS by having unprotected sex with him.

Ms. Benaissa helped her case during the trial, which began Aug. 16, by acknowledging she had unprotected sex despite knowing she was HIV-positive and saying it was a big mistake.

“I'm sorry from the bottom of my heart,” Ms. Benaissa said, adding that she had realized how much her ex-boyfriend was still suffering.

“I wish I could turn back time and make everything undone,” she told the court. “But I know that he will never forgive me.”

The man who claimed Ms. Benaissa infected him said they had a three-month relationship at the beginning of 2004 and that he got tested after Ms. Benaissa's aunt asked him in 2007 whether he was aware that the singer was HIV-positive.

Ms. Benaissa said she didn't tell anybody about her disease because she was afraid of the consequences — which she described during the trial as a “cowardly act.”

During the trial, microbiologist Josef Eberle, who examined the viruses of both Ms. Benaissa and her ex-boyfriend, told the court “in all probability” the singer was responsible for infecting the 34-year-old man with the virus that causes AIDS.

Both were suffering from a very rare type of the virus that was first found in western Africa, he said.

Ms. Benaissa told the court she became addicted to crack cocaine at 14 and that during her pregnancy at 16, she found out that she was HIV positive.

After winning a TV talent show, “Popstars,” in 2000, she joined the band No Angels with four other young women and hid her illness from everyone.

No Angels sold more than 5 million albums before breaking up in 2003.

Along with three other members from the original band, Ms. Benaissa helped re-form the group in 2007. They performed to a disastrous result in the 2008 Eurovision song contest, coming in 23rd out of 25 contestants.

No Angels were heading into a concert in Frankfurt in April 2009, when Ms. Benaissa was taken into custody and kept for 10 days — a move that a German AIDS awareness group criticized as disproportionate.

The Deutsche AIDS-Hilfe group argued her partners also carried a share of the responsibility for becoming infected, and criticized the verdict.

“If the responsibility for prevention is put entirely upon women and HIV-positive people, we are not recognizing the combined responsibility of two people,” said spokeswoman Marianne Rademacher.


Who is responsible for protection from STDs: one partner, both, individual/shared responsibility?
Do men and women have equal responsibility, or does one gender have more responsibility?
Should one have unprotected sex on reassurances, or require a medical certificate (not a complete guarantee do to timings of infection and detection) that a partner is HIV-ve?
Condoms in all cases? Any exceptions?
Would a man doing the same be more likely to be sentenced to jail time?
Did good legal advice lead to this sentence?
Did reverse racism play a role?
Should jail time be automatic for this type of offense?
Is unprotected sex more likely in societies where non-marital sex is more taboo?
Any other comments, thoughts, impressions?

*FYI-Men are more likely to be asymptomatic carriers of STDs, and women to actually become ill, and show the signs and symptoms of the illness, and to be more difficult to treat. This is due to anatomy and physiology. Women are more likely to suffer infertility as a result of an STD, or repeated ones, than men are, for the same reasons.

Nadja in court; The Independent's caption reads:
"Nadja Benaissa was treated leniently by the court because she did not believe she would pass the virus on"

Update

There are a number of other media articles and videos about the case--the ones in The Independent, BBC, Reuters, and, for background Time, are recommended--and a Wikipedia entry for Nadja Benaissa, which give more details. In fact, Nadja was originally charged with having unprotected sex with 3 men, and convicted on all 3 counts though the most serious charge was for the only case where the man sero-converted from HIV -ve to +ve. His life is shattered, he is earning only half his usual salary, he cannot travel internationally freely, and he lives in fear of developing full blown AIDS.

Arguments made in her defense by her lawyers, AIDS groups, fans, and others include: she was very young at the time she had unprotected sex (ages 22-24); she was under a lot of stress (wanting to protect her career and her daughter);  she had had a troubled youth (crack cocaine addiction age 14); former long term relationship with a Senegalese footballer of French citizenship, Abdou Mbodji--hence the rare West African form of the virus--the father of her daughter; diagnosed HIV +ve aged 16-17 during routine pregnancy screening; she admitted she was wrong and was remorseful; she denied the intent to infect anyone; she had been subjected to a "witch hunt"; she was willing to do community service; and a conviction would stigmatize HIV +ve people and make them solely responsible for spreading the virus, rather than sharing the responsibility, such that the would be less likely to tell their status.

The prosecuting lawyer argued for a suspended sentence given her youth at the time of the offense, and her current admission of wrongdoing and remorsefulness. The sentence included 300 hrs community service and unspecified counselling. The advocacy groups want the conviction overturned.

I have to admit I find this stunning. I'm not sure that jail time was in order, but something more than a suspended sentence, community service, and "counseling" (like she didn't get any at the time of diagnosis?--hardly). I think there was confusion about her being 22-24 when she chose to have unprotected sex with men, and not tell them her HIV status because she was afraid to ruin her career, and her addiction at 14.

Moreover, this version of "shared responsibility" is a distortion of the term, it seems to me. While people need to protect themselves (especially since they themselves will bear the consequences no matter who was "to blame"), the person walking around "armed and dangerous" has a greater responsibility, including a duty to warn (which is part of the law). It doesn't seem as if her intent were fully challenged--knows she is HIV +ve from age 16, presumably had the usual diagnostic counseling, and still can't find a way at age 22-24 to insist on a condom? An actress and she can't make something up, and convince a guy to put one on, even if she doesn't want to tell him the real reason? A modern woman and doesn't keep some handy for the occasion?

That she had excellent lawyering, went to court looking like a school girl, "got off" because of her story, celebrity, attractiveness, fan base, etc, I find easier to accept than the idea that the person with the HIV shouldn't be held to a higher standard of responsibility when making decisions about sexual practices that can endanger the lives of others. Both advocacy and justice seem to have taken a "unique" path here.

Nadja on stage around the time of her April 2009 arrest;
held 10 days in jail, then released, with a media blackout on the charges and case information

Related posts:

Advice to Saudi and Other Foreign Students Studying Abroad--Part I Chiara's 10 Recommendations and 10 Tips
Advice to Saudi and Other Foreign Students Studying Abroad: Part II Fouad Alfarhan's Advice and Typology: The Fool, The Fearful, and The Hero upcoming

14 comments:

Wendy said...

The courts have been quite clear in Canada about the matter. Men have been sentenced for having unprotected sex and passing on the virus. Why should she walk away?
Both parties should be protecting themselves and the men she had sex with should have been using a condom but there's no question in my mind that to have unprotected sex when you are carrying the virus is a criminal act.

oby said...

UNFAIR! this woman knowingly gave her boyfriend a disease that will affect him the rest of his life. She should definitely be held responsible and certainly have some serious consequences.

IF she chose to keep it a secret then she has to either NOT have sex or take strong precautions to prevent someone else from getting it. To me it is not very much different than assaulting someone with a deadly weapon.

A man would get time for this no doubt why shouldn't she? Even if a man does not use a condom himself it is her responsibility to protect him IF he doesn't know.

To me it is a clear case.

Shafiq said...

I don't see what the confusion is here - If a person knowingly passes on a life-threatening virus, then it's a serious crime and it should be punishable by a jail sentence.

I read an article in the Guardian, which went along the lines of 'it is also the partner's responsibility to check' and to use a condom. Yes, it's a good idea for you to check with any sexual partner before-hand, but a lot of the time there's no reason to suspect that the person will be carrying the HIV virus.

The analogy I'd give is if someone burgled your house. Yes, you should keep the doors and windows locked, but even if you haven't, does not make it any less of a crime for someone to burgle your house.

With less threatening STDs, it should still be a crime though with a less severe punishment. If you know you have an STD, it becomes your responsibility to tell ALL your sexual partners, no matter how trivial it may seem.

Susanne said...

I think if you are willing to have unprotected sex with anyone, you have to be willing to bear any consequences of your actions. I'm sure he trusted her, but some people are just not trustworthy.

What a selfish girl.

Chiara said...

Thank you all for your comments. I updated the post now that I am a little less shocked by the article, but I am still shocked. I work in analogous areas and I have never heard such reasoning, nor seen in the news anyone get off so lightly.

Perhaps a German reader will comment from the German perspective on this.

Wendy--I agree that the courts in Canada have been much harsher, and always men accused that I have seen. I also agree that unprotected sex without disclosing HIV status is a criminal act.

Oby--I agree; and even though the law obliges disclosure in such cases, she does have a moral responsibility to insist on protection to prevent transmission.

Shafiq--It is true that heterosexuals tend to underestimate their risk of STDs and particularly HIV. Homosexuals--after the devastation from AIDS in that community--did learn better to practice safer sex. While the risk is lower among heterosexuals there is still a risk and it is the fast growing group of new HIV +ve members (though gay sex, and IV drug transmission have higher overall numbers). Your analogy about responsibility is accurate. Certainly in this case there was not truly consensual sex between 2 mature adults. True consent would require information about the known +ve HIV status.

Susanne--true: untrustworthy, and selfish would be fair adjectives for her behaviour.

Thanks again to all for sharing your views. I hope others will chime in, and if anyone can explain the rationale of the advocacy group I would be grateful! :)

angie nader said...

i agree that everyone is responsible for situations they put themselves in.
at the same time..this woman knew she has hiv..and could have asked them to at least use a condom....she didnt even do that.
it seems she didnt care they could be infected...because she knew they most likley would.
she should be in jail..
if this was a man...i feel she would be in jail

Chiara said...

Angie Nader--thanks for your comment. I agree. She had multiple instances of unprotected intercourse with at least 3 men over years. She was incredibly cavalier with the health of others. I also believe if it were a man in the same situation there would more likely have been jail time. Senegalese man, even more likely, but maybe not a soccer player--though still likely. Thanks for your comment! :)

Qusay said...

In Australia an Australian originally from Zimbabwe acrobat infected hundreds of women with the HIV virus over several years according to the reports.

His punishment, not going to bars late at night, and having to disclose his status as having HIV.

Chiara said...

Qusay--thanks for your comment, though I am now backed to feeling stunned about this! :) As Wendy said, the cases in Canada that make it to the criminal courts carry stiffer sentencing than this.
Even a case where a doctor lied about accidentally transfusing a woman with HIV infected blood, was more severely punished.
The sentence you describe seems particularly unenforceable, ie useless.
I read a study saying most HIV +ve people do disclose their status appropriately so it is even worse, in my opinion, that those who don't aren't dealt with more harshly.
Thanks again for your comment! :)

ellen557 said...

I just find the whole thing disgusting. While I agree with Susanne that people having unprotected sex need to think about the consequences of their actions, I also agree with you Chiara that people need to be honest about diseases! It's ridiculous that she is not in jail.

Chiara said...

Ellen--thanks for your comment. The disclosure rules both legal and moral are diverse but still clear. It behooves the one with the infection to do the disclosing under the appropriate circumstances, rather than hide or deny it, particularly where there is the potential not just for harm (though that can be considerable) but for death. The man Najda infected found out 3 years later because her aunt told him she was HIV positive and he was tested. Early intervention with anti-virals keep virus counts lower and decrease the risk of illness. Nadja didn't even give him that opportunity. It would be interesting to know if either the judicial review or the sentence required her to divulge all her contacts as would be normal in the case of any STD or highly transmissible and virulent disease. Thanks again for your comment!

Wendy said...

Hot off the press. - Note the jail time and possibility of deportment for one of the men in the article below.

CALGARY - Handcuffs offer protection even more effective than a condom -- and hopefully it isn't too late.

Facing charges of aggravated assault for allegedly infecting two Winnipeg women with HIV, 26-year-old Apay Ogouk turned himself into Calgary police Thursday evening, hours after a national warrant was issued for his arrest.

"He turned himself in at the front counter and we will be notifying Winnipeg that he is in custody," said Calgary Insp. Keith Cain.

"All we're doing is arresting him on a Canada-wide warrant -- it's up to Winnipeg to decide what happens next."

Police in Winnipeg say the Sudanese immigrant is wanted for spreading the lethal virus through unprotected sex.

For three infected women in Winnipeg -- two of them are pressing charges -- the handcuffs come too late.

They have the virus which causes AIDS, and a lifetime of medical care and worry ahead.

For Tamara, who ended up with HIV after dating the accused, it's now a matter of keeping other women safe.

"I'm really happy they've finally done this -- he needs to be stopped," said Tamara, a 24-year-old single mom.

"It's unfair to ruin other people's lives because he doesn't care for his own."

Stopped is one thing. Finding possible victims is another.

It's believed the alleged HIV-carrier has been living in Calgary for months, potentially infecting women across the city with the virus.

His name and photograph are now public, and it's probable there are Calgary women who are in for a nasty shock.

If allegations of Ogouk spreading the HIV virus prove accurate, his local sexual partners face a frightening blood test, and then a terrifying wait for results that may change their lives.

Tamara says her former boyfriend is an outgoing individual who charms women into bed by chatting them up.

"He talks a lot, and he's very friendly," said Tamara.

Her friend Christine, who says she contracted HIV in a one-night fling with the accused, claims he removed the condom she insisted he wear during their only encounter.

First Christine tested positive, and Tamara a few weeks later. They phoned Ogouk at a 403 area code number after learning they had the virus.

Ogouk, they say, was the only possible source of the disease -- and so they called him.

"He denied knowing about it -- he said he'd just learned about it right then," said Tamara.

But police told them otherwise, saying medical records show the suspect had tested positive in 2006.

It was then Winnipeg police launched an investigation that led to a warrant being issued, and Calgary police being alerted to his presence in Alberta.

This isn't the first time police in Canada have issued a warrant over HIV and allegations of knowingly spreading the virus.

Another Winnipeg man from the Sudan, Clato Mabior, is seeking to overturn a 14-year prison sentence, after being convicted of not disclosing his HIV infection to his partners.

It's expected he will be deported once released from jail.

And in 2009, a Hamilton jury found Johnson Aziga guilty of first-degree murder, making him the first HIV-positive man in Canada to be convicted as a killer for recklessly spreading the AIDS-causing virus.

Two of his seven victims later died of AIDS, the disease that follows untreated HIV infection.

HIV, thanks to recent medical breakthroughs, is now controlled through a regime of drugs and constant monitoring of blood samples.

Still, there is no cure, and the spectre of a life cut short through full-blown AIDS remains.

If it's proven in court that Ogouk knowingly spread HIV, Tamara says she isn't convinced prison is punishment enough.

She says real justice would be sending a convicted Ogouk back home to Sudan.

"I'd want to see him deported -- I think he should be sent back home," said Tamara.

RenKiss said...

She should be punished. She knowingly spread a deadly virus. I do think partially she got off because of her celebrity status. I also feel it's common sense to use protection when you engage in sexual activity.


Her past addiction and other problems shouldn't even be an issue.

danitydon said...

i feel that it takes two 2 tango.. and i feel that yeah the person has hiv is considered the weapon ... but what really is the most important part is that the person who is neg. has something powerful and becoming rarer and rarer these days that is pure untainted blood and good health , so they should wanna protect that much more then anything else and be the one to protect that, but they dont know what they still have till its gone the sheep! i see y its gender bias a bit because i am apt to believe that a man is less likely to remind there woman about using a condom more so than a woman... (not in this case) but people cant even begin to imagine the hurt and pain she (all with hiv) has to endured with this large secret its not easy comming out with this to someone it may not be a death sentence anymore but it can mean being alone forever and no one wants that. im sure there many celebs out there that are doing the same thing but with out any remorse.. most people dont even wanna fathom putting themselves in her shoes or that of anyone else with these horrible disease and thats y people will always blame the infected first "ignorance" leave this hard working woman alone to deal with her own business , obviously she is a hard worker and has done something with her life unlike some of us hiv "negative" beings.. get a life stay out of NADJA's

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