HIV-positive man gets jail for not telling sexual partner about risk of infection

SINGAPORE: A 48-year-old man was on Tuesday (Jun 7) sentenced to a year's jail for not informing his sexual partner that he was HIV positive.

The offender cannot be named due to a gag order. He was a public relations consultant at the time of the offence, and the victim was in his 20s.

The man was diagnosed with HIV in July 2017 and interviewed by a National Centre for Infectious Diseases official, who told him that he was required to inform sexual partners of his status regardless of his viral load and his perceived risk to others.

He pleaded guilty last week to one charge under the Infectious Diseases Act. Another charge for the same offence against a different victim was considered for sentencing.

WHAT HAPPENED

On Apr 23, 2021, the man offered the victim a ride home from work in a private-hire vehicle that he booked. During the journey, both men decided to go to the offender's home instead.

They engaged in unprotected sex in the victim's room after initial resistance from the victim.

Before this, the offender did not inform the victim of the risk of contracting HIV from him and did not obtain his voluntary agreement to accept that risk, said Ministry of Health (MOH) prosecutor Andre Moses Tan.

The offence was discovered on Sep 30, 2021, when an unidentified informant reported to authorities that the victim claimed he had been sexually assaulted by the offender.

At the time, the offender was already under investigation for having sex with another man on Oct 10, 2019, without informing him of the risk of contracting HIV.

The man was charged for that earlier offence on Oct 14, 2021, and it formed the charge taken into consideration.

VIRAL LOAD "NOT DETECTED"

A test of the man's HIV viral load in January 2021 indicated that it was "not detected", while another test in July 2021 indicated that it was "borderline" with less than 20 copies per millilitre, stated court documents.

According to a memo from a National University Hospital doctor cited in court documents, there was no difference between a "borderline" and "not detected" viral load.

The doctor also said that "there was effectively no risk of transmission of HIV from a person with an undetectable viral load to a sexual partner", stated court documents.

No report on the man's viral load at the time of the offence in April 2021 was available. 

However, apart from the July 2021 result, his viral load consistently tested as "not detected" in tests taken every six months from November 2017 to January this year.

It was therefore accepted that his viral load was likely to be "not detected" or "borderline" at the time of the offence, stated court documents.

PROSECUTION AND DEFENCE ARGUMENTS

The prosecution asked for two years' jail, noting that "the risk of transmission is low as the accused's undetectable viral load means that there was effectively zero risk of transmission".

However, the offender did not inform the victim that he was HIV positive, exposed two different victims to the risk of transmission of HIV and also reoffended while under investigation, said Mr Tan.

"While the accused did not use a condom when he engaged in sexual activity with the victim, we accept that this is mitigated by the fact that there was effectively no risk of transmission," said the prosecutor.

Defence lawyer Sunil Sudheesan sought a high fine with no jail time, arguing that his client was unable to transmit HIV during the offences.

The man had consumed alcohol before the offence, including one bottle of vodka, which clouded his judgment, added the lawyer.

"Our client did not disclose any risk of transmission to the victims only because he knew that there was no risk of transmission at all," argued Mr Sudheesan.

"Afraid of the stigma against HIV, our client erroneously omitted to disclose the risk of transmission when it is zero."

The man has appealed against his sentence. He could have been jailed for up to 10 years, fined up to S$50,000 or both.