REGARDING THE NORWEGIAN LAW COMMISSION REPORT ON CRIMINAL LAW AND THE TRANSMISSION OF DISEASE

Minister of Health and leader of the Law committee

Honestly it has taken me some time to “swallow” the Report. I don't find the Commissions proposal to a new penal code very controversial. To me it's a slight improvement to the old one (§ 155) and to the § 237/238 which never been used. The main reason is how they still want to continue to criminalize the risk of transmission, next to transmission itself. Just like we always have.

As “crumbs to the poor” they have proposed to raise the level for when the law should be used against people living with HIV. But in my experience, it's little comfort in this.

I've been told that with this new penal code, I would never have been prosecuted? I'm not convinced. One of the things we'll have to fight the prosecutor about in my upcoming trial, is how they came to the conclusion that my actions where (and still are considered as) intentional negligence? When professionals within the same justice system can interpret one single action in so different ways as they have in my case, why should we feel safer with the committee's new “reckless behavior”? Justice is not mathematically science, it's subjective interpretations.

Proposing a new penal code (even though they have “softened” it), means that the majority of the committee and their followers must have a complete trust in the justice system, including police investigators, prosecutors and judges to be without any prejudice against people living with HIV and their “true” attention when having sex.

The majority of the committee still reviews the risk of transmission as a punishable act of behavior. Believing it will have an influence to how people living with HIV conduct their sex life in a safer way. They are suggesting that the penal code should apply when you expose two or more people to the risk of infection or if you are found to have had a reckless behavior. The exceptions that should exempt from criminal responsibility includes: having your partner consent in the presence of health care personnel or when proper infection control measures have been taken (like use of condom with sexual intercourse) and practicing “safer sex”.

The committee has chosen to dismiss advices from UN, UNAIDS and other international organization about not criminalizing the risk of transmission, because the lack of substantial research. Instead they argue that a continuous criminalization is in compliance with peoples general feelings of justice. Neither do they find medical treatment sufficient enough to exempt from criminal liability?

I am not a lawyer. Nor am I a doctor or in any other way academically educated to call myself an expert, when it comes to HIV. I just happens to live with it. But others more skilled than me have made some interesting comments to the Report, like:

Law Professor Matthew Weait:

http://weait.typepad.com/blog/2012/10/some-reflections-on-norways-law-commission-report-on-criminal-law-and-the-transmission-of-disease-.html

Gus Cairns at NAM aidsmap:

http://www.aidsmap.com/Viral-load-will-be-no-defence-against-prosecution-in-Norway/page/2542359/
 
Edwin J. Bernard at HIV Justice Network: 

http://criminalhivtransmission.blogspot.de/2012/10/norway-long-awaited-law-commission.html
 
Interview with Kim Fangen, one of the Committee members: 

http://www.hivjustice.net/site/news/?a=4d90201cbf72d8e0b5787fbb7534d10e



To put it in to perspective. I visited my HIV specialized doctor a couple of weeks ago to talk about my latest blood samples. After seeing him I had to visit a nurse to agree on when to do my next sample.
This takes place in the Infection Department of the University Hospital of Oslo, where all the people in need of medical treatment and many newly infected gets their HIV-guidance.

On her table among a lot of different brochures I find the same brochure about men who have sex with men and how to practice “safer sex” to avoid STD's and HIV, that I picked up when I first got my diagnose.

I found the page where it explains how oral intercourse can be practiced as long as it don't involve any cum. I put it in front of her and said something like:

-Why are you still giving out this one? You know by now that this information is illegal according to Norwegian law and the public prosecutors. I know that the advices given by medical staff and the law sometimes differs, but is it not time for you people to start talking to each other?

Even if I should get acquitted at my trial in February 2013, two peoples life have been changed forever. And with it friendships, family and work. It might not be important to the greater good of the society, but it sure as hell should be important to everybody living with HIV or in the danger zone of getting it.

MY TRIAL HAS BEEN POSTPONED

My trial 15^th and 16^th of October has been postponed.


På norsk her:

http://louisgay72.blogspot.no/2012/10/rettsaken-min-er-utsatt.html

 

Yesterday it was clear that the trial against me next week, will be postponed. New date is yet unknown.

 

 

See the indicment here:

 

http://louisgay72.blogspot.no/2012/03/indictment-decision-by-state-attorney.html

The complainant and the prosecution's main witness has previously withdrawn the prosecution request and wished for the case to be closed. This is not possible with the the penal code that is used in this case and the indictment against me have been maintained.

The complainant has decided to leave the country for a longer period of time waiting for the trial negotiations to finish in court.

Both the defense counsel, the prosecutor and the court agreed that the case can not be processed without the comlainant present, in person, for his immediate explanation is necessary for a proper clarification of the case.

There is now a medical report from a court-appointed independent expert. It is again confirmed that the comlainant's infection did not originate from me. After specific questions from my defender it is otherwise determined by the expert that I, in practice, could not have exposed an already HIV-infected person for risk of infection, - so even within the strict legal framework of applicable Norwegian laws, my defender is now looking for my "crime ".

RETTSAKEN MIN ER UTSATT

Rettsaken min den 15. og 16. oktober har blitt utsatt.


Les på engelsk her:

http://louisgay72.blogspot.no/2012/10/my-trial-has-been-postponed_3360.html



I går ble det klart at rettsaken mot meg neste uke, blir utsatt. Ny dato er ennå ukjent.


Les tiltalen her:

http://louisgay72.blogspot.no/p/omsider-tiltalt-av-statsadvokaten-i.html

Fornærmede og påtalemyndighetens hovedvitne har tidligere trukket påtalebegjæringen og ønsket at saken skal avsluttes. Dette er ikke mulig etter den loven som blir brukt i saken og tiltalen mot meg har blitt opprettholdt.

Fornærmede har valgt å forlate landet for en lenger periode i påvente av at saken skal ferdigforhandles i retten.

Både forsvarer, aktor og retten er enige om at saken ikke kan behandles uten at fornærmede er til stede personlig, for hans umiddelbare forklaring er nødvendig for en forsvarlig opplysning av saken.

Det foreligger nå en medisinsk utredning fra en rettsoppnevnt uavhengig sakkyndig. Det er igjen bekreftet at fornærmedes smitte ikke stammer fra meg. Etter konkret spørsmål fra min forsvarer er det ellers fastslått av den sakkyndige at jeg i praksis ikke kan ha utsatt en allerede hiv-smittet person for smittefare, - så selv innenfor den strengt juridiske rammen av gjeldende norsk straffelov leter min forsvarer nå etter min "forbrytelse".