Tilo is smiling. He has found his equilibrium again. The situation was quite different five years ago for the 35-year-old gay man. Tilo contracted HIV at the age of 16 after his first sexual experience with a man due to a torn condom. Then he became entangled in criminal proceedings in Munich following an accusation of having intentionally attempted grievous bodily harm.
Tilo is well-informed. He has long been involved with the Gay Counselling Centre and the AIDS Organisation. He is familiar with therapies and the Swiss Declaration by the Swiss Federal Commission on the reduction in infectiousness in patients receiving successful HIV treatment. He only experienced serious health setbacks once when he interrupted his therapy because he was feeling well. “I probably needed that experience. Otherwise, I would never have believed anyone who told me how life-threatening it is.” He has never tried to hide his HIV status. He was known in the city – at least in the scene – as being HIV-positive.
In 2005, he met a somewhat older man at a bar in Munich’s Müllerstrasse . On the way home, there was a little sexual interlude in the park and the two men went to Tilo’s place .The late hour and alcohol allowed nothing more than cuddling, smooching and oral sex. The man then made this strange comment at breakfast the next morning: “It’s a good thing that we’re both healthy.” Tilo was somewhat baffled. At a scene bar whose customers have constantly been subjected to the topics of HIV and AIDS, Hepatitis A, B and C, syphilis and genital warts over the past thirty years – and whose older customers have not been spared any of the horrors of AIDS – he met a man who assumes that he is healthy. Tilo confirmed this, yet pointed out that he is also positive. However, he said that this is not a problem: Due to his therapy, he was under the detection level and also could not infect anyone; and they had not even done anything that was in any way relevant to HIV.
“And then the drama took its course. A short time later, I received a telephone call from him and he said he needed to know the name of my medication. That was probably necessary due to an emergency treatment.” The guidelines for the administration of the Post-Exposure Prophylaxis (PEP) do not stipulate that this should be prescribed when there has not been a risk. Instead of contacting Tilo’s physician or defusing the situation by reassuring the overly fearful patient, PEP was summarily prescribed. This upgraded the harmless sexual contact into one with a considerable danger of infection – due less to the biological realities than the psychological and legal reasons.
“The man probably got some further counselling at the gay counselling centre. After he saw a few of its staff members in a conversation with me at a pub and erroneously assumed that we were talking about him, he filed a complaint against the counselling centre citing violation of confidentiality. This was dismissed. Now I see this as an expression of how much difficulty this man has in dealing with his surrounding world. Based on the statements against the staff members of the counselling centre, the public prosecutor found an angle for initiating the investigation against me.”
After about one year, I was a briefly interrogated by the police on the telephone. It took a little while for me to realise what it was even about. After all, I had a completely clean conscience. Nevertheless, the indictment arrived a short time later. I was still quite confident about the matter, but the Munich Authorities made me feel uncomfortable. I had lived there for 15 years and experienced how I was checked time and again by the police just because I had short hair or looked different than was desired. The Bavarian judiciary made me feel uneasy.”
Rightfully so, as it turned out. It is the duty of the public prosecutor to determine the facts of the case, compile the incriminating and exonerating evidence, dismiss anything not relevant to the prosecution, consider whether some of the issues can be solved with a fine, end others through an order of summary punishment and have the rest clarified by the court. As some of the famous proceedings of the past three years have shown, an “Americanisation of the public prosecutors” has occurred.
This means statements to the press and a biased selection of expert witnesses with the objective of supporting a charge instead of determining the truth. It appears that the idea that the accused must be considered innocent until proven guilty is no longer valid. At the time when the charges were filed, a accepted view – that an HIV infectiondoes not occur when a person’s viral load is undetectable. Nevertheless, the public prosecutor and the district court succeeded in finding one of the few expert witnesses who staunchly represents the position that significant risks remain even when undergoing treatment.
“The proceedings quickly concentrated on the oral sex. The female public prosecutor considered it to be very dangerous. I did not understand that. I pointed out that the German AIDS Organisation, supported by the German Association for Health Education, has stated for more than twenty years: ‘Blow jobs are okay – take it out before coming.’ So I didn’t do anything wrong. The other participant insisted that anal intercourse with ejaculation on the back had also occurred. My general practitioner told me that I am in a stable therapy, but the expert witness maintained the dangerous nature of my actions. And the district court convicted me of attempted grievous bodily harm and sentenced me to a prison term of six months.”
In reference to the fact that the general practitioner had confirmed that Tilo was below the detection level with 47 virus copies per ml of blood, the court stated: “However, despite this background, the court is convinced – especially in keeping with the impressive expert opinion by Professor Eberle – that the viral load was not below the detection level... As the expert witness Professor Eberle explained, a certain risk of infection still exists despite the low viral load because a low viral load in the blood does not mean a low viral load in the ejaculate...”
How the court decided to assume that a man – who knew was not infectious and on top of that had not done anything that carries substantial risk – had recklessly risked the infection of the other person will remain a mystery.
After the sentencing, Tilo was rather disturbed. He had financial concerns because of the fcost of the proceedings, uncertainty about what a court of appeal would do to the lawsuit and insecurity in his relationships with other men. Casual encounters became more difficult for him. Instead of an incidental story that could be easily mentioned within a sexual context, HIV had once again become a weighty matter. It was possible to land in prison as a result. A foundation rejected the request to help finance the lawsuit since it did not want to support Tilo’s conduct.
The Homosexual Self-Help saw this differently, and there was also help within the context of the AIDS organisations. There were two dates at the appeal court. “The expert witness of the public prosecutor” was refuted by Professor Vernazza, a member of the Swiss Commission, and Dr. Jäger, who organised the Munich World AIDS Day.
“The discussions between the expert witnesses took place in such a way that I did not understand a single word. But the judge was well prepared and asked the right questions.” The court and the public prosecutor could no longer sentence him, but wanted to avoid an acquittal. The focus of the proceedings was shifted from the attempted bodily harm to the psychological consequences for the other participant. This was the leverage to force the dismissal of the proceedings in lieu of community service. But Tilo accepted it because the proceedings were an intense emotional burden for him and he was afraid that he could no longer cover additional costs. He had already lost his trust in the judicial system during the first hearing. The court urged him to acquiesce so that the other person would not continue to be subjected to psychological strain - also indicating that it had a biased attitude.
What has changed as a result of the proceedings?
Tilo has become even clearer regarding sex. “In the case of the older man, I assumed that he was aware of it back then. I was quite well known in the Munich scene. That was probably an error. I now regret that I didn’t follow the proceedings to the end..” But he did not have the stomach for it at that time, and felt he had been unjustly subjected to a lawsuit.
“The second person involved was a fearful person, and wrongly ascribed the danger of infection to someone who acknowledged that he is positive. Stricken by his fears, he assessed harmless sexual practices as being dangerous. He was supported in these assessments by the physician due to the prescription of PEP, as well as by the public prosecutor, the court and expert witnesses.
“If the goal of such proceedings was that the aggrieved parties could live more happily after their conclusion, then this approach thoroughly misfired. Neither the accused nor the man who saw himself as a victim were treated in the appropriate manner.
The public prosecutors and courts should asses the lists of their expert witnesses and only select those who are committed to keeping up with current knowledge and do not see themselves as auxiliary officers of the prosecution. When examining intention, they should lose the false idea that knowledge about the infection and sex without condoms prove that someone was deliberately infecting another.
The medical field should recognise that only by openly communicating treatment advances, can society change and therefore make it easier for people with HIV to live in dignity.
And the judicial system should focus on HIV prevention, rather than punishment. Prosecutions harm prevention because they sew fear and promote the concept of: “The state protects me so I do not have to take care of myself.”