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Stanislas Kanengele-Yondjo
Case throws HIV laws into question. Sydney Morning Herald, Australia, 2 September 2005.
Man jailed after tourists get HIV.
What The Law Says About HIV. Sydney Star Observer 8/12/2005
Stanislas Kanengele-Yondjo
Case throws HIV laws into question. Sydney Morning Herald, Australia, 2 September 2005.
By Natasha Wallace
The two women he knowingly infected with HIV could die, but a man has had serious charges against him dropped because it is too difficult to prove legally he intended to harm them.
It would have been the first prosecution since legislation was introduced in 1990 making it a crime to intend to spread the AIDS-causing virus.
After pleading guilty to two counts of maliciously inflicting grievous bodily harm in a plea bargain, Stanislas Kanengele-Yondjo, 37, who is married, now faces a maximum penalty of seven years on each count, rather than 25.
Deputy Senior Crown Prosecutor Paul Conlon, SC, told Penrith Local Court yesterday that proving the intent aspect of maliciously inflicting grievous bodily disease would be a "problem" because Kanengele-Yondjo had had sex on other occasions and the women did not contract the virus.
Between January and March 2003, Kanengele-Yondjo, of Blacktown, coaxed two women, one Irish and one German, into having unprotected sex with him.
The Irish woman discovered he had the virus after she saw his file at LongBay prison, where he was in custody over another matter, while working as a nurse.
She told police he convinced her not to use condoms, saying: "I would never do anything to hurt you. I don't have anything ... because I go back to the Congo so much, I get tests."
Both women tested positive to the virus five months after they stopped seeing him.
There is no legislation which specifically makes knowingly transmitting HIV (without intent to do so) a crime.
Mr Conlon has made a submission to the Criminal Law Review division of the Attorney-General's department on the issue.
The magistrate, Paul Falzon, said the dropping of the grievous bodily disease charges was "rather disconcerting when you have a brief overview of the facts ... where it would appear that the defendant was aware that he suffers from the HIV virus.
"He has a conversation with the victim and says, 'You shouldn't be worried, I have private health insurance and I have to do an HIV test once a year' ... in order to be able to induce the women to have unprotected sex."
The NSW Government was "exploring the adequacy or otherwise" of the legislation, a spokesman for the Attorney-General, Bob Debus, said.
He said no cases had been prosecuted under the grievous bodily disease legislation.
Kanengele-Yondjo came to Australia from Africa in 1993 and was granted permanent residency in 1997. He tested HIV positive in 1999.
He will be sentenced on March 11.
Copyright © 2005. The Sydney Morning Herald.
Man jailed after tourists get HIV.
An Australian court has jailed an HIV-positive man for 12 years for having unprotected sex with two European tourists.
Stanislas Kanengele-Yondjo, from DR Congo, admitted causing grievous bodily harm by knowingly infecting the women between January and March 2003.
He admitted falsely telling the women - one from Ireland and one from Germany - that he was not HIV positive.
The judge in Sydney called the offences heinous and callous.
"To have subjected innocent persons to your own horror shows a poverty of spirit and moral bankruptcy which beggars belief," said Judge Warwick Andrews.
He gave Kanengele-Yondjo six years for each offence, with a non-parole period of four-and-a-half years for each offence.
Kanengele-Yondjo, a married father-of-five in his 40s, was diagnosed with the virus in February 1999.
Sentence welcomed
A spokeswoman for the victims, Bernadette Ingrim, said they welcomed the length of the sentence, which was "a genuine reflection of the offence".
"They appreciate that at least for the next nine to 12 years he won't have the opportunity to hurt anyone else like this again," she told reporters.
The New South Wales chief executive of People Living With HIV/Aids, Geoff Honnor, said it was a unique and exceptional case.
"It's not the ideal message we'd want to send on World Aids Day... it's important to remember that he is in no way indicative of the way in which people with HIV/Aids normally live," he was quoted by the Sydney Morning Herald as saying.
What The Law Says About HIV. Sydney Star Observer 8/12/2005
In NSW You Can Go To Jail For Failing To Disclose Your HIV Status. David Buchanan Explains The Lessons We Can Learn From Last Week’s Legal Decision.
Stanislas Kanengele-Yondjo was sentenced last week to 12 years’ jail for infecting two women with HIV. Gay men comprise 80 percent of the people with HIV/AIDS in Australia, so it raises questions about what this case means for this group of people.
The first thing it means is a person who harms another person by deceiving them about whether they have a disease commits a crime and can expect to go to jail for a long time. Stanislas Kanengele-Yondjo had unprotected sex with his victims by lying to them about his HIV status. As PLWHA (NSW) said, his behaviour was indefensible.
Does the decision mean you can go to jail for failing to disclose your HIV status? Yes, if you know you have HIV and you have unprotected sex and your partner does not consent to the risk of infection and contracts HIV. No, if you take precautions to avoid the risk of transmission whether your partner knows you have HIV or not. Probably no, if your partner consents to the risk of transmission.
The problem in NSW is the law and public health policy say two different things. The Public Health Act makes it an offence with a maximum fine of $5,500 to have sex with a person without disclosing you have a sexually transmissible medical condition and if your partner does not accept the risk.
There is no defence of “taking reasonable precautions”. The government’s HIV/AIDS policy, on the other hand, promotes behavioural prevention where sex might be risky for HIV. For gay men, that means using a condom every time, whether you know the HIV status of your partner or not.
Most public health experts think that an HIV prevention policy based upon disclosure is a recipe for disaster. It is likely that many of the 820 new HIV diagnoses recorded in Australia in 2004 have happened because people with HIV don’t know they have the virus. And yet this has occurred in a country with a culture among gay men of taking precautions – using a condom or reducing risk in other ways.
If we replace that with a policy of depending on people to tell their partner if they have HIV, what happens with the many people who don’t know they are HIV positive? In other words, disclosure policies are dangerous. They also don’t work – almost no-one has been prosecuted under the Public Health Act for what gay men do every day: have sex without asking about their partner’s HIV status but using condoms for anal sex.
What about transmission offences? The UN’s International Guidelines on HIV/AIDS and Human Rights say there is no need for any country to have laws targeting people with HIV – existing criminal laws are adequate for people who deliberately or recklessly harm others.
Criminal laws especially about HIV transmission are bad public health policy. They divert attention from the real need, for people with or at risk for HIV to change the way they have sex or inject drugs. And they increase the stigma surrounding HIV, making people reluctant to be tested and reluctant to address the HIV risk in their lives.
A typical illustration of HIV stigma was the words the judge who sentenced Stanislas Kanengele-Yondjo used to describe his HIV infection – “your horror”. Kanengele-Yondjo’s “horror” was his immoral behaviour, not his HIV status.
The bottom line? Don’t be distracted by the rare criminal cases. What we need is to get tested regularly and to make sure we actually do protect ourselves and our partners from HIV and other STIs.
David Buchanan SC is a barrister and secretary of ACON. However, the views he expresses in this article are his own.
THE SITUATION OVERSEAS
The Stanislas Kanengele-Yondjo case is a NSW first, but it reflects an apparently growing international trend of criminal prosecutions for HIV transmission.
In October, a New Zealand court dismissed charges against an HIV-positive man who met a woman on the internet and did not tell her his HIV status before they had protected sex.