NO TRIAL AFTER ALL!

I am not going to jail:-)

Today the case against me for oral sex was scheduled in court, but the prosecutor has instead withdrawn and dismissed the case due to lack of evidence. I feel both anger and relief. This case shows how completely wrong it turns out when one mixes law with HIV prevention. The prosecutor was a hair's breadth from making most gays into potential criminals.









The prosecutor brought charges against me in March 2012 after Penal Code Section 155 ("the HIV-penal code") for putting another man to risk of infection by oral sex. Studies showed that I was not the source of infection. We had different viruses and my ex-boyfriend gradually withdrew the case.


Followed safer sex advice

I was prosecuted despite that I followed the advice given from health care organizations to HIV positive and HIV negative people in connection with oral sex.

The new Norwegian HIV organization “Nye Pluss” (www.nyepluss.no) has gone through the health professional advices, Norwegian health authorities and professional through hearings has approved all these years. For nearly thirty years now oral sex was considered safer sex between men despite use of condom and whether one has HIV or not, under certain precautions not to use toothpicks before sex, etc. All brochures and all international and national experts in HIV infection has always said the same thing: All the research shows that HIV transmission through oral sex is extremely rare and no common source of infection, so the investigation in this case shows.


Enormous stress

The trial was originally scheduled for October 2012, but was postponed and re-scheduled for February 2013. It's terrible that I for almost a year had to live with this indictment hanging over me. It has been a terrible burden, an load I would not wish my worst enemy. To me it has been a totally unjustified attack on me as a person, on my morals and my values. A threat to imprison me for something almost every gay does; oral sex without a condom.


Destroys all prevention with one stroke

The case demonstrates very clearly how completely wrong it goes when the law interferes in HIV prevention. And the law will do when there is the potential for it, such is its nature. The law is there to be tested, not at least new laws. The prosecutor will of course also in the future try any case he gets on his table, if he believes it is possible to get a conviction. And there is nothing in the current Criminal Code provisions or in what the Syse Committee proposes that would prevent the prosecutor to try a new case of oral sex. This will happen when the prosecutor feel the "right" case pops up, like they thought of my case.


Stops infection tracing work

We were a hair's breadth away from that a conviction in a court of law could have broken all contact tracing among men who have sex with men with a single blow. "Everyone" has oral sex, so who newly infected with HIV would have given up their sexual partners to the doctor for tracing if one can be convicted for sucking? It's something all gays do. Who would dare to expose themselves to prosecution and punishment? And again it is just as obvious that the testing of HIV will suffer when you can be punished even for oral sex. Any gay is then a potential criminal, because "everyone" has oral sex and "everyone should have reason to believe" that one can be infected with HIV, while almost no one uses condoms for oral sex, as studies show. Who will dare to HIV test?

This unfortunately show how naive even the law can be. It is a narrow and blindly legal consideration. However, there is nothing what so ever in the Syse Committee's proposal that would prevented a diligent prosecutor who will plow new legal grounds in court. On the contrary: If the subtypes of the virus in two HIV-infected persons are sufficiently similar, which theoretically can happen, the prosecutor can argue that infection probably occurred. He will of course have the matter tested in court, since he has a possible case of contamination, despite the fact that you've followed the advice on safer sex.


Guaranteed new cases with new penal code

If the Syse Committee's proposed new penal code § 237 is approved by the Parliament, we will have new HIV cases in Norwegian courts, regardless of the source of infection. It is the intention of a new penal code. Also new cases against gays will come, and contact tracing and testing among men who have sex with men are sure to further damage, such research also has shown.

A CHRISMAS "CAROL" FROM AN HIV-CRIMINALIZED ADVOCATE

This post was published at:
http://blogs.poz.com/louisgay/
18th of December 2012.


It's been 383 days since I first addressed HIV-criminalization through telling my personal story in public. And personal it was!


Looking back, I can easily see how I been trying to transform my personal experience with the law into a general advocacy against HIV-criminalization. Only partly successful, I would say. Because despite my efforts, the “international HIV-decriminalization
 movement” seems to need me more as a “poster boy” than a political advocate. And maybe they're right? After all, there are a lot more skilled HIV advocates than there are people living with HIV who wants to share their meeting with the law.

Back then, I decided to tell my story because I believed there would be a lot of others out there with similar experiences or at least living in terror of ending up with one. By sharing I thought I would put a missing face to the pressure a lot of people living with HIV probably must feel. I was not entirely wrong. Even though I also encountered people living with HIV who was less grateful. Some feels that me going public made their sexual life more difficult. Before they red my story, they had no idea how vulnerable they are in front of the law. Now that they know, they do feel fear and this has inflicted negatively on their sexual life.

There is a time for fighting and a time for reflecting. 
I don't even know how to explain what amount of energy it takes to prepare yourself mentally for an upcoming trial. I only know a few people in this world who share that experience with me. Having my case postponed, no matter what reasons, made me realize a few things.

Getting ready to finally defend myself in court, was like blowing air into a balloon. Loosing that opportunity in front of my nose, having it postponed, was like putting a needle to it. Afterward I felt like one of those used condoms on the sidewalk. Someone obviously had a good time with it, but no one cared to pick it up.

I mistakenly thought that being prosecuted at least meant I had the prosecutors attention. So was not the case I experienced one week before the trial was about to start.
I should probably not patronize the opponent in my own trial and for what I now this might be common, but there is a point to it. At least from my perspective as prosecuted in a highly disputable case like mine.

Reading the Norwegian governmental appointed law-commission's recommendation, this October, on how to continue to to criminalize people with HIV more or less the same way as we do today, called for a long period of reflection.

Their arguments dismisses recommendations from organizations like UNAIDS and WHO on decriminalizing risk of transmission, based on poor empirical and evidence based material. At the same time they argue in favor of their own recommendation that it's in compliance to peoples general feeling of justice and that using general laws instead of specific ones would make it to hard to convict HIV “criminals”, due to the stricter rules of evidence.

This confirms an already existing suspicion of mine. The battle is as much a fight about a cultural way of thinking, as it is about empirical and evidence based research. Unfortunately this makes me less optimistic. I believe it to be more difficult to change politics based on cultural conservatism, than politics purely based on the best science and experience available at the time.

Getting crazy ideas?
Putting it all together, sometimes gives me a “crazy” idea. If my experiences and conclusions are even remotely correct? That is; being a person living with HIV risking to be subjected to a criminal law, either your saliva is considered a weapon of terror (USA) or conducting “safer sex” recommended to you by public services (Norway, Austria). You have to accept that the legal system lives a life of its own, sometimes difficult to predict and understand. Sometimes not even logical to the average man and woman. Therefor you are definitely best of avoiding it.

The obvious answer to that advice, is of course to act accordingly to the criminal laws. But for people living with HIV, that's easier said than done. I believe there are enough examples by now, to prove that the legal systems in several countries, are quite unreliable when it comes to HIV. So, why don't we educate people with HIV to prepare themselves to avoid any unnecessary encounter with it. By suggesting that, I am not defending intentional transmission of the virus. I am merely stating that the recommendations from both leading organizations and scientific communities are yet to be incorporated in some of your legal systems, and that we should not be paying the prize for that.

With my knowledge and experience today, I don't believe I will ever find myself in the same situation again. Not because I'll promise to never let anyone suck my dick without a condom (I will of course patiently wait until the Norwegian parliament adopts the newly recommended law and then bring my Saturday night date down to the emergency, to get the demanded healthcare approval that my date is sane and aware of the risk. First then let him go down on me). But because I simply would have known that giving a statement to the police, at all, gave the prosecutor the one sentence they needed to indict me. Instead I should probably have used my legal rights to not give a statement, leaving it to the police and prosecutor to prove my “criminal” actions. I think they would had a hard time finding a witness in that bedroom?

It's necessary to fight politically to change obstacles that's making it harder to live with HIV. Even if it takes a lot of time. But imagine what a great present it could be to people with HIV, if those of us with the experience and knowledge would care to share it in public. Giving both general and specific advices about what to do and not to do to avoid any unnecessary contact with criminal laws. And if you are unfortunate enough to be subjected to any of those laws in your own country, have a place to seek out first hand experiences and advices. Maybe that have would provided some kind of consolation and security, while we all are waiting for our respective countries to reach the inevitable conclusion. HIV-criminalization is not helping anyone in the end.

Merry Christmas & Happy New Year

A PRIVILEGE TO SPEAK TO HIGHSCHOOL STUDENTS

Every once in a while I get the privilege of speaking directly to the up-growing generation. 

So was the case in this video published today at the Norwegian digital learning arena. An educationel interactive platform for all highschools in Norway.

http://ndla.no/nb/node/109252

My message is basically this:

"I have nothing against that sexually active grownups choose to take the risk of getting HIV. I just want that before they do, they have thought true the consequences of their choice. If their conclusion are that they don't want to take that chance, they should take the responsibility of protecting themselves. Not leave it to the world around them. Living a good life with HIV is absolutely achievable, but I wouldn't recommend anyone to get it!

HAPPY WORLD AIDS DAY 2012

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".

ARTICLE IN FRONTIERS L.A. 6TH OF SEPT. 2012

This article was written for the american FRONTIERS L.A. and published 6th of September here:

 

http://www.frontiersla.com/Blog/PositiveFrontiers/blogentry.aspx?BlogEntryID=10435093

 

 

RAISING YOUR VOICE CAN BE RAISING THE ODDS OF SUCCESS…
Convincing the population of a country and their politicians, that there is a link between how they treat a minority group as people living with HIV, their laws and all it symbols, is kind of a challenge. But with international help and among them some very experienced people from the US, things are slowly starting to move in a better direction here in Norway.

 

 

 

By Louis Gay

We have an old expression in Norway saying something about how a small bump sometimes can topple a big load. When I started raising my voice in public media November 30th 2011, I felt like a very small bump.

As a charged HIV-positive I would be the first one ever to do this and one of very few positive’s at all to argue back at the state in national media. Nordic countries have a long tradition in trusting the state to take care of us. This also applies when it comes to how we trust the law to prevent society from HIV. All responsibility lies with the one carrying the virus. Discloser does not protect you from the law, because we think it does not protect the society from HIV.

The loneliness changed in February 2012, during the UNAIDS conference in Oslo. I was invited to tell my story at a pre-conference working with the Oslo declaration at the time. In that room I met experts, activists and organizations from all over the world, working against HIV-crimanalization. People like your own Sean Strub and Robert Struttle from the Sero project, Edwin J. Bernard from HIV justice network and Professor Matthew Wait from England. Even people from the Nordic countries and Norway, was there fighting criminalization of HIV. I was not alone anymore.

Most of these people have included me in their networks and shared their experiences with me. Enlightened me and supported my fight in Norway. This summer Sero project and HIV justice network invited me to AIDS2012 in Washington to share my story among other Americans in the same position as myself. Lacking the money to participate they put me up with amazing people in Frontiers Media to get a free pass to the conference as a media representative. People to house me for free during the entire conference and of course the interviews and panel debate.

Like I said at the criminalization panel during the conference; “Success is a hard thing to measure.” What I do know is that slowly politicians are participating in the debate against HIV-criminalization in our national media. Now they dare to say my name and talk to me. Even I am facing trial in October. Media are contacting me to listen to my views on HIV-criminalization and stigma. The debate is full of different perspectives. Some less accurate than others, but there is now finally a debate. Even among people living with HIV, there are different views when it comes to criminalization. Skilled people like those I was so lucky to meet at the conference in Oslo and during AIDS2012 in Washington, must never stop recruiting and educating new members to this fight. Not all of us have the time and recourses to invent all the arguments and read all the science by ourselves. We have the power and will to stand up, but not to be alone for a very long time. It is simply too expensive on a personal level.

In a huge international community of people working for a better future for those living with HIV, I sometimes feel small and insignificant. But I am not, am I? Thru the privilege of being part of something bigger, people like me get a mirror which reflects and adjust the work we do.

There are so many ways to influence politics. Raising your voice can be one of them. But it is easier when you are not alone. Maybe, just maybe we are about to topple a big load?