The team behind the multi-award winning(1) HIV/AIDS documentary Positive Hell today launches the third and final short film in its 2017 trilogy Positively Wrong. The new 11 minute film, Criminally False, explores what happened when the HIV test, almost universally relied on to judge whether or not people are HIV+, was itself tested for reliability under the rigours of the criminal courts, with legally ground-breaking results. Criminally False is now available on YouTube at .

Criminally False highlights two criminal convictions made on the grounds that the offenders had committed aggravated assault because they had tested HIV positive and had not disclosed that fact to sexual partners.

Anton(2) is interviewed in the film following his release from prison in Canada. Like a great many others, he was charged with multiple counts of aggravated sexual assault on the basis that he did not tell his sexual partners he had tested HIV positive. As a supposed sex criminal he had faced an extremely tough prison experience.

Criminally False
 writer and narrator Joan Shenton commented: “In telling Anton’s story, we’re asking if the HIV test stands up to legal scrutiny: does the test actually prove, to the standards required in a criminal trial, that someone who tests HIV+ is definitely carrying HIV, is likely to transmit it and is likely to cause harm? The manufacturers of the test want us to believe it is dependable but does the evidence for that stand up in court? Should Anton have been convicted?

The president of Rethinking AIDS, David Crowe, added: “An HIV test indicates that you have a higher than normal level of antibodies. That could be because you’ve been vaccinated with the flu vaccine – that’s one cause of a false positive. Another is because you’ve recently been sick. There are also auto-immune conditions that have been associated with false positive tests. So it might mean that you have a higher level of antibodies: it doesn’t necessarily mean that you’re sick or you’re going to get AIDS anytime soon.

The second story is of Sergeant David Gutierrez. In 2015, the U.S. Court of Appeals for the Armed Forces (the second highest court in the US) unanimously threw out an earlier conviction against the US airman for committing “aggravated assault” when exposing multiple sex partners to HIV at swinger parties. The appeal decision made US legal history, reversing 25 years of precedence.

Joan Shenton said: “The convicted airman was not accused of actually infecting anyone, only of having sex with them after a positive HIV test. His conviction was overturned because the US government could not prove that any of his acts were likely to transmit HIV to his partners or likely to cause them harm.

David Gutierrez’s appeal, which took five years, highlighted the absence of any definitive medical evidence about the likelihood of HIV transmission. Defence lawyers argued that the risk per sexual encounter ranged from 1-in-10,000 to 1-in-100,000. Prosecutors countered that it was closer to 1 in 500 but the court determined that even if the risk were 1 in 500, transmission of the disease was not “likely” to occur.

The appeal was initiated by the US’s Office of Medical and Scientific Justice. Its principal investigator, Clark Baker, decided to back Gutierrez because the transmission of HIV was not likely to have occurred. In Criminally FalseBaker also notes that Gutierrez had tested positive “after receiving a bunch of pre-deployment vaccinations and we know from the medical literature, the scientific literature, that vaccines will cause false positives on an HIV test.

The theme running through the Positively Wrong film trilogy is the unreliability of the HIV test, the possibility of false positive results and the harm they can do.

Joan Shenton said: “The world needs the test kit manufacturers and the medical profession to come clean on how reliable HIV testing really is and how many people are falsely found to be HIV+. It is a vital question for countless individuals and for the LGBTQ+ communities and for the developing countries that divert so much of their limited health resources on the basis of these test results.

The HIV test manufacturers’ package inserts state that there is no recognised standard for establishing the presence or absence of HIV-1 antibody in human blood and that the antibody tests cannot be used to diagnose AIDS. These statements are hidden away in legalese to protect themselves from liability. They know the public won’t be reading this, nor most doctors, and so people continue to suffer, whether from miscarriages of justice, social exclusion or fear of an unnecessary regime of antiretroviral drugs that can eventually compromise their immune systems.

Interviewed in Criminally False, David Crowe concluded: “I’d like to see the HIV test … analysed in court, because I think it would fall apart. That I see as the only way out of this horrible situation for HIV positive people.

Criminally False can now be viewed on YouTube at . The full Positively Wrong trilogy is on the Immunity Resource Foundation’s YouTube channel at . The trilogy will soon be re-edited into a single half hour film for theatrical screenings.