12 months' jail for HIV-positive man who had sex with 2 men without telling them of risks

SINGAPORE — While the authorities were investigating a man for having sex with another man without disclosing he had the human immunodeficiency virus (HIV), he committed the same offence. This time, with a colleague.

On Tuesday (June 7), the 48-year-old Singaporean was jailed for 12 months.

He pleaded guilty last week to one count of engaging in sexual activity without informing his partner of the risk of contracting HIV, with another charge taken into consideration for sentencing.

Under the Infectious Diseases Act, individuals who know that they have HIV or acquired immunodeficiency syndrome (Aids) have to tell their sexual partner of the risk. Their partners also have to voluntarily agree to accept the risk.

The accused cannot be named due to a court gag order, which is usually imposed in cases of accused persons who have HIV.

His lawyer Sunil Sudheesan, who sought a high fine, said that he will be filing an appeal against the sentence. Ministry of Health (MOH) prosecutor Andre Moses Tan had asked for 24 months’ jail.

The accused was diagnosed with HIV in July 2017 and has been receiving treatment in the form of antiretroviral therapy.

His viral load was found to be undetectable when he got tested roughly every six months from November 2017 to January this year. Court documents showed that his viral load was consistently under 20 viral copies for every millilitre of plasma.

A doctor from the National University Hospital said in a memo that there was effectively no risk of transmission of HIV from someone with an undetectable viral load to a sexual partner, even if he did not use condoms during penetrative sex.

Mr Sudheesan said his client had “erroneously thought” that there was no need to disclose any risk of transmission of HIV to the victim since he could not sexually transmit it, and that he was also afraid of the stigma against the disease.

Nevertheless, the court heard that when he was diagnosed, he had been informed of the requirements under the Infectious Diseases Act.

SEX WITH MEN AT HIS HOME

Th accused, who worked as a public relations consultant, first engaged in sexual activity at his home with the first victim on Oct 10, 2019.

He neither informed the other man of the risk of contracting HIV from him nor obtained his voluntary agreement to accept that risk, the MOH prosecutor told the court.

The next day, the police informed MOH that the victim had alleged that he was sexually assaulted by the accused. Court documents did not state how the victim found out about the accused’s HIV status.

The health ministry immediately began investigating the matter.

However, about one-and-a-half years later while investigations were still ongoing, the accused offered his male colleague a ride home in the late hours of April 23 last year.

They took a private-hire ride but decided to go to the accused’s home instead. When they got there, the accused took the other man to his home and asked if he wanted to have sex.

The victim agreed “after some resistance”, Mr Tan told the court.

Mr Sudheesan, the accused’s lawyer, said that his client had been drinking alcohol before that.

A few months later on Sept 30, a report was lodged with MOH when the victim revealed that the accused had performed oral sex on him without telling him he had HIV.

He was charged with the offences in October last year.

UNABLE TO SPREAD HIV 'AT ALL MATERIAL TIMES' 

In seeking at least two years' jail, Mr Tan said that such offences should generally attract a significant jail term because it aligns with Parliament's intent for deterrent sentences to be imposed.

It also "reflects the appreciable harm that can be caused" and the "high culpability of such offenders, who irresponsibly risk transmitting HIV infection to others", he added.

He noted that Parliament had raised the maximum penalty by five-fold in 2008 after the number of HIV cases that year — 422 — almost doubled from 2001.

The High Court had set out a sentencing framework for these offences, with a case of low risk of transmission and low culpability attracting a fine or up to two years' jail.

Mr Tan argued that the accused was on the higher end of this spectrum. Some aggravating factors included re-offending while being investigated, and exposing two victims to the risk of transmission, he said.

However, Mr Sudheesan argued that there were strong mitigating factors to warrant a fine. The defence counsel said that the accused qualified for the status of "undetectable equals untransmittable" and that this was a result of his adherence to treatment.

The intention of the law was to punish irresponsible HIV-positive persons who transmitted the virus to others or put others at risk of contracting it, and the accused had been unable to transmit HIV to others at all material times, Mr Sudheesan pointed out.

The statutory concern of the Infectious Diseases Act would, therefore, still be upheld by the imposition of a high fine, he added.

The accused had also pleaded guilty at a very early stage and never meant to re-offend, but his mind was clouded by the alcohol he had consumed at the time of the offence, Mr Sudheesan said.

The accused could have been jailed for up to 10 years or fined up to S$50,000, or given both punishments, for each offence.

There is no cure for HIV and without treatment, individuals can develop Aids, which is potentially fatal.

A person can contract HIV through unprotected sex, sharing injection equipment, contaminated blood transfusions and organ or tissue transplants, or it can be passed from a mother to her unborn child.