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More debate urged after historic HIV murder verdict for HIV+ Who Transmitted HIV by Sex To Multiple Women Who Died From HIV
 
 
  Vancouver Sun_
 
By Jordana Huber and Tiffany Crawford, Canwest News ServiceApril 5, 2009
 
TORONTO - In a historic verdict on the weekend, an Ontario man became the first Canadian to be found guilty of murder for spreading the virus that causes AIDS.
 
But legal observers cautioned Sunday that Canada needs more dialogue on whether murder is an appropriate charge for the crime.
 
A jury of nine men and three women deliberated for 2 1/2 days before finding Johnson Aziga guilty Saturday on two counts of first-degree murder and 10 of the 11 counts of aggravated sexual assault that he faced.
 
Aziga, 52, was found guilty of attempted aggravated sexual assault in the case of one of his former partners.
 
Legal observers say Aziga could very likely be the first person in the world to be found guilty of murder for lethally infecting a partner with HIV, but that doesn't sit well with some experts who say Canada is setting a dangerous precedent.
 
"We need to figure out why these charges have escalated from criminal negligence to assault to aggravated sexual assault and now murder without there ever having been an informed public debate," said Alison Symington, with the Canadian HIV/AIDS Legal Network.
 
Symington would like to see an evaluation of the case by the attorney general and clear guidelines established for prosecutors to know how to proceed with an HIV non-disclosure case. She also wants an open dialogue on the issue.
 
"Do we as a society think not telling someone you're living with about a sexually transmitted infection is the equivalent of murder? We really need to stop and have this debate."
 
The Crown maintained two women, who can only be identified as H.C. and S.B., were essentially injected with a "slow-acting poison" that destroyed their immune systems and, because they didn't know Aziga had HIV, they were unable to seek effective treatment, leading to their cancers and to their deaths.
 
But a University of Toronto professor argues criminalizing people who have unprotected sex that results in HIV transmission raises ethical concerns..
 
The risk of criminal prosecution may deter people from seeking treatment or disclosing their HIV status to public health authorities, says professor Mariana Valverdes, adding that criminalization may also create a stigma for people living with HIV.
 
"We know that some diseases can be transmitted inadvertently - we know this from the tainted blood scandal," she said. "It is much better public policy to institute universal measures of protection, rather than assuming that diseases spread mainly because of some people's intentionally evil behaviour."
 
After the verdict came down, Crown Attorney Karen Shea acknowledged the case set a precedent because it is the first conviction for first-degree murder involving HIV transmission.
 
"Normally, we have no interest in what is going on in the bedrooms of HIV positive individuals," said Shea. "But when you have circumstances in which the individual is engaging in conduct knowing full well that he is endangering the health and lives of others it's not only appropriate but completely warranted to invoke the criminal law."
 
The Crown said Aziga endangered the lives of 11 women by having unprotected sex with them and failing to disclose he had HIV.
 
Seven of the women tested positive for HIV and two died of AIDS-related cancers, the jury heard. The four other women tested negative.
 
Prosecutors painted Aziga as a callous and arrogant man who "outright lied" about having HIV to women with whom he had sex, and in some cases, convinced his partners condoms were no longer necessary.
 
Aziga's lawyers argued their client did not have the "mental wherewithal" to deliberately endanger his former lovers, citing a brain disorder, heavy drinking and post-traumatic stress.
 
"If you have a brain disorder, then you do things that people who do not have that kind of condition do," defence lawyer Davies Bagambiire said after the verdict was handed down.
 
"Did it deprive him of the capacity to form the intent to commit murder? Obviously, the jury found otherwise."
 
A native of Uganda and former research analyst at the Ministry of the Attorney General in Ontario, Aziga was diagnosed with HIV in 1996.
 
He was counselled not to have unprotected sex and to tell partners of his health status, jurors heard during testimony from public health officials..
 
Despite several warnings and being served with an order under the Health Protection and Promotion Act to wear condoms and inform his partners he had HIV, Aziga continued to have unprotected sex, jurors heard.
 
A murder conviction carries a life sentence with no parole eligibility for 25 years.
 
Aziga will be sentenced May 7.
 

"Seven of the women were infected with the same rare African strain of HIV as Aziga, including the two Toronto women who died of AIDS-related illnesses."
 
Jurors didn't hear it all
 
Callous comment ruled inadmissible

 
April 06, 2009
Barbara Brown
The Hamilton Spectator
(Apr 6, 2009)
 
The face-to-face meeting between Johnson Aziga and two public health nurses was tense and meant to communicate the serious disapproval of local authorities.
 
A month before the April 16, 2003, confrontation, Hamilton's public health department had received word that the HIV-positive man was named as a sexual contact by a second newly diagnosed woman. She was a mother-to-be from Hamilton who learned she was HIV positive during prenatal screening.
 
More importantly, hers was not one of the names Aziga had provided as a sexual partner when he was served the previous October with an order to comply under the Health Protection and Promotion Act.
 
The nurses reviewed the Sec. 22 order with Aziga and once again counselled him about his legal responsibility to inform sexual partners of his HIV status and to wear a latex condom during any act of penetrative sex. They again demanded a complete list of his sexual partners. They informed Aziga the health branch was considering its options in terms of prosecuting him further for violating the order.
 
Aziga, who had two university degrees and worked as a research analyst with the Ontario Ministry of the Attorney General, told the nurses he understood their order very well. He had been counselled many times since his diagnosis in late 1996 about the legal consequences of not disclosing his HIV status to sexual partners.
 
"I understand, but I don't agree with it," he said matter-of-factly.
 
Alarmed, public health officials responded by contacting Hamilton police to inquire about their possible involvement in the Aziga dilemma. Medical officer of health Elizabeth Richardson decided to go to court for a stricter order. But before the city's legal department could draft an application, a third newly diagnosed woman had named Aziga as a sexual contact, and then a fourth HIV-positive woman identified him in early July.
 
Aziga's self-incriminating statement was never heard by the jury that on Saturday convicted him of two counts of first-degree murder, 10 of aggravated sexual assault and one of attempted aggravated sexual assault.
 
After a six-month trial, the jury found him guilty of killing two women and endangering the lives of nine others by recklessly exposing them to the virus that causes AIDS. Seven of the women were infected with the same rare African strain of HIV as Aziga, including the two Toronto women who died of AIDS-related illnesses.
 
Superior Court Justice Thomas Lofchik ruled Aziga's comment to the public health nurses inadmissible at his trial. The judge said a statement made to persons in authority and under compulsion of the Health Protection and Promotion Act could not later be used to incriminate him at his trial.
 
The trial heard Richardson testify that public health authorities in Ontario ultimately attempted to trace 20 women thought to be sexual contacts of Aziga. They had only partial names for some and were unable to make contact.
 
She said Aziga told staff he was "angry about his diagnosis and didn't understand how he had been infected."
 
In jailhouse interviews with a forensic psychiatrist, Aziga expressed no remorse for the women he infected with HIV, and at one point dismissed his relationships with them as a bunch of "one-night stands."
 
Aziga was known to cruise bars and nightclubs in search of sexual conquests. But most of the women who had sex with him told court they had dated Aziga for a number of weeks or months. They were middle-aged and divorced or separated, for the most part, women with older children who had returned to the dating scene after years of monogamous marriage.
 
One of them, known only as Ms C, was the last woman to date Aziga and actually had unprotected sex with him on the morning of his arrest, Aug. 30, 2003. They had been seeing each other for about six months. Ms C. later learned that she was HIV-positive and wrote to Aziga in jail. An excerpt of her letter was read to the jury at his trial.
 
"Dearest Johnson, hello. How are you? Me, I'm sick here and there sometimes. I don't mean to get down on you, but why did you mess up my life when all I did is give you my heart, soul and most of all my love?
 
"I hate you for lying to me and giving me a death sentence."
 
Ms C told court she was fearful about her diagnosis because her system does not tolerate the antiretroviral medications that prolong the lives of so many HIV-positive people today. Aziga, himself, receives antiretroviral therapy in jail and has been in stable health since his diagnosis 13 years ago.
 
"Didn't you stop once to think of my (four) children," she asked her former lover. "Because of what you have done, my children will grow up without their mother, the only person who truly loved them."
 

Should we keep AIDS out of courts?
 
A legal expert says it's imperative society has 'the hammer' of the law to deter the reckless spread of HIV. But others say it may stigmatize sufferers.

 
April 06, 2009
Wade Hemsworth
The Hamilton Spectator
(Apr 6, 2009)
 
"HIV/AIDS advocates say that making a crime of transmission in any circumstance risks demonizing all people with HIV....."People living with HIV, realistically, face a lot of discrimination and stigma....Making their already difficult lives even harder can only push them away from disclosure, prevention, support and treatment services.....The cumulative effect, they say, is that criminalizing HIV transmission is counterproductive in the broader fight against HIV......Winifred Holland, a retired University of Western Ontario law professor with a continuing interest in the area of HIV/AIDS criminalization "I just think that in these extreme cases," Holland said, "we have to have this instrument available to us to use.".....Holland believes most people are responsible enough to be tested and disclose their status, but society needs the hammer of the law when public health measures don't work. "I think in some cases there's absolutely no option when somebody goes out and deliberately does this," she said......Edwin Bernard, a freelance writer and editor says, is that it involves consensual sex. Though Canadian law says true consent can only be given by an informed person, he argues that consent confers individual responsibility on both sides of a relationship. The case "raises all kinds of moral and legal questions about responsibility and blame," he said. "It makes a mockery of the public-health concept that each individual is responsible for their own health." But Winifred Holland, doesn't buy it."
 
Most criminal trials raise the obvious question: guilty or not guilty?
 
Johnson Aziga's murder trial has raised an additional question: should there have been a trial at all?
 
His has been the first case in Canada -- or anywhere, say experts in the field -- to ask if the transmission of HIV can constitute homicide.
 
Those who regard criminal law as as an objective, if changing entity, believe there is no question that it can -- and should.
 
Others, especially those involved in HIV/AIDS advocacy, believe that using criminal law to deter or punish people who knowingly expose others to the virus is unfair and counterproductive, and can even bring harm to those the law is meant to protect.
 
Aziga has been the one in the prisoner's dock through a long and painful trial where the evidence has taken in sex, science and state of mind.
 
He is a university-educated 52-year-old man who worked for the Ontario Ministry of the Attorney General and arrived in court trailing a string of former lovers who say he lied about his HIV status.
 
His behaviour may not make him the ideal representative for decriminalization advocates, but being the first in line has made him their poster child by default.
 
To make a crime of passing the HIV virus to others -- especially to call it murder -- will cause society more harm than good, say those who want to keep HIV out of the courtroom.
 
Their argument goes like this: Individuals are responsible for their own health, and while it is preferable for people with HIV/AIDS to inform their partners -- as most do -- it is unreasonable to make disclosure mandatory under the law.
 
Given that as many as one-quarter of the people who carry the virus don't even know it, it would be impossible for everyone to disclose even if they wanted to, points out Edwin Bernard, a freelance writer and editor who specializes in the issue. (Aziga knew he was infected).
 
He has been following the Aziga case closely from his homes in England and Germany. He said the trial is especially significant because it marks the first time an HIV transmission case has been tested in the context of homicide anywhere.
 
Part of the reason is practical: it is rare for a person who was infected after an accused person to die before the accused.
 
Another reason, Bernard explained, is a unique feature of Canadian criminal law that sees aggravated sexual assault -- Aziga's original charge -- automatically elevated to first-degree murder when a victim dies as a result of the assault in question.
 
What makes the case especially complicated and unusual, Bernard says, is that it involves consensual sex. Though Canadian law says true consent can only be given by an informed person, he argues that consent confers individual responsibility on both sides of a relationship.
 
The case "raises all kinds of moral and legal questions about responsibility and blame," he said. "It makes a mockery of the public-health concept that each individual is responsible for their own health."
 
But Winifred Holland, a retired University of Western Ontario law professor with a continuing interest in the area of HIV/AIDS criminalization, doesn't buy it.
 
"I think with these cases in general, people have a tendency to blame the victim. They'll say, 'Why didn't she insist on using a condom?'" Holland said. "The responsibility has to lie with the person who is fully aware of the facts and can tell you, 'Yes, I am infected.'"
 
Holland believes most people are responsible enough to be tested and disclose their status, but society needs the hammer of the law when public health measures don't work.
 
"I think in some cases there's absolutely no option when somebody goes out and deliberately does this," she said.
 
"What we're talking about is a minority who are hell-bent on either deliberately or recklessly infecting other people. If the measure isn't required, it won't be used. It's only going to be used in these pretty extreme cases."
 
Laws change to adapt to social change, she said, but the reason for having them does not.
 
We use criminal sanctions "to protect the public from behaviour that people see as potentially damaging and threatening to society," and the behaviour at issue, though it poses a new kind of question, clearly qualifies to be tested in criminal court, she said.
 
At one time, she points out, homosexual behaviour was considered criminal in some societies -- a view that has broadly changed, and with it, the law. The question of abortion is another that changes from place to place and from time to time.
 
"Clearly, these things are not crystallized and cast in stone," she said. "The view of what should be criminalized changes from society to society and even within each society, depending on which year we're talking about."
 
But in her mind, making a crime of the reckless transmission of HIV is a "no-brainer" -- particularly in cases where an infected person ignores public health orders against having unprotected sex.
 
"I think in some cases there's absolutely no option when somebody goes out and deliberately does this," she said. "They have just said, 'My own personal satisfaction trumps all of those things, and I'm going to go out and I'm going to earn the trust of all these people and I'm just going to violate it and pass on this potentially life-threatening virus.' To me, it's just a no-brainer to criminalize."
 
On the other side of the issue, HIV/AIDS advocates say that making a crime of transmission in any circumstance risks demonizing all people with HIV..
 
First, the publicity of a criminal trial threatens to undo the education work that advocates do to show that HIV is an increasingly manageable virus.
 
"There are 60,000 people in Canada living with HIV," said Alison Symington, senior policy analyst with the Canadian HIV/AIDS Legal Network. "There isn't a lot of coverage about their accomplishments and their lives. The majority of coverage in the media about HIV is focused on the few people who are facing criminal charges, and the risk with that is that it puts the idea in the minds of the general public that all people living with HIV are potential criminals."
 
Second, she said, criminalizing transmission further stigmatizes people with HIV/AIDS.
 
"People living with HIV, realistically, face a lot of discrimination and stigma," she said. "They can lose their housing, their employment, their friends, their family. They can be exposed to violence if they say they are living with HIV."
 
Making their already difficult lives even harder can only push them away from disclosure, prevention, support and treatment services, she said.
 
It's a point where she and Bernard agree.
 
"This case has the potential to do much harm to the way the public perceives HIV," Bernard said. "Most people with HIV in Canada will go on to live long and productive lives thanks to both incredible advances in treatments and because Canada has universal access to health care.
 
"If this means that even one person who has HIV but doesn't know it is then put off from testing or treatment, subsequently goes on to unwittingly infect others and eventually, needlessly dies, then this trial has done more harm than good."
 
The cumulative effect, they say, is that criminalizing HIV transmission is counterproductive in the broader fight against HIV.
 
Failing to criminalize it, though, could provide a shield to a reckless few, argues the law professor on the other side of the issue, and possibly allow guilty people to get away with murder.
 
"I just think that in these extreme cases," Holland said, "we have to have this instrument available to us to use."
 
whemsworth@thespec.com
 
905-526-3254
 

National forums to engage on HIV criminalization
 
CRIMINALIZTION OF HIV / "An issue I struggle with," says forum moderator

 
Matt Mills / National / Friday, February 20, 2009
 
The Canadian AIDS Treatment Information Exchange (CATIE) is hosting a series of public forums in cities across Canada in March that will examine the criminalization of HIV nondisclosure. CATIE, in partnership with the Canadian HIV Legal network and in conjunction with AIDS service organizations across the country, is paying for the events with grant money from the Public Health Agency of Canada.
 
"We talk about the politics of sex and sexual identity and gender in a way that courts and law doesn't really understand and that people in society have only a sort of simpleton view of," says Glenn Betteridge, forum moderator (except in Quebec) and legal and policy researcher working in health and human rights. "This tour is a good idea because people across Canada need information on what is happening around the criminal law and HIV."
 
In 1998 the Supreme Court of Canada ruled that you could be charged with aggravated assault for failing disclose your HIV-positive status to a sex partner before having unprotected sex. Since then an increasing number of HIV-positive people, including many gay men, are being charged and convicted of violent offences ranging from aggravated sexual assault to murder.
 
It is morally dubious to deliberately expose a sex partner to a potentially lethal virus but a growing chorus of activists and researchers are saying HIV criminalization is fraught with injustice. They argue variously that criminalization hampers HIV-prevention efforts, fans the flames of HIV stigma, is rooted in misinformation and hysterical fear, puts the responsibility to protect sexual health entirely and unfairly on the shoulders of people living with HIV, turns gay men against each other and serves only to further victimize poz people.
 
But Betteridge says there remain disparate viewpoints, even within gay communities, about the best way to handle failure to disclose allegations.
 
"We almost talk about those things in a utopian aspirational way," he says. "The idea that people living with HIV can have unprotected sex and face no consequences because the other parties should be looking out for themselves, asserting that as a human right, is tenuous."
 
Betteridge says there may also need to be some remedy for those who become HIV positive after having unprotected sex when they simply don't believe they have the free agency to refuse. What about those who honestly don't feel they can insist on safer sex?
 
To Betteridge's mind there is a struggle between what ought to be and what is. So, he says, he hasn't yet made up his mind about criminalization.
 
"I am not sure," he says. "It's an issue I struggle with. I need to have my viewpoint more informed by those people who are feeling this profoundly to decide where I think the truth lies in this."
 
Betteridge says he hesitates to publicly share a complete picture of his personal view because he wants to function as an impartial moderator and facilitator in the forums.
 
"We still have assertions on both sides that criminalization is both good and bad for a range of reasons and not a lot of evidence," he says.
 
What if you are personally caught in a nondisclosure conundrum? Betteridge advises anyone who has been charged with a violent crime because of failure to disclose allegations to get a good criminal lawyer.
 
"The Canadian HIV/AIDS legal network and the HIV/AIDS legal clinic Ontario have been working with lawyers on strategies and approaches to develop really strong defences," he says.
 
Should you call the cops if you think someone may be deliberately infecting others with HIV?
 
Betteridge says you should contact public health authorities, but stops short of advising you not to call police.
 
"What goes around comes around," he says. "There's this tide of criminalization that seems to be rolling along and you might get caught up in it yourself. Sex and sexual relations are really complicated so you could see yourself at a certain point in life not disclosing. There are often criminal acts in the essence of HIV transmission. To criminalize all the complexity in all those acts, be careful what you ask for."
 
Check out HIV, Disclosure and the Law. 6:30pm. Tue, Mar 10 at Toronto's Ramada Plaza Hotel (300 Jarvis St). Call the numbers below for times and locations of forums in your city.
 
Vancouver
Sunday, March 1
British Columbia People With AIDS Society
(604) 893-2200 /1-800-994-2437
or e-mail at: info@bcpwa.org
 
Ottawa
Monday, March 2
Bruce House
(613) 729-0911 or e-mail at: admin@brucehouse.org
 
Winnipeg
Wednesday, February 11
Nine Circles Community Health Centre
(204) 940-6000 / 1-888-305-8647
or e-mail via the website at: www.ninecircles.ca
 
Calgary
Tuesday, March 17
AIDS Calgary
(403) 508-2500 or e-mail at: info@aidscalgary.org
 
Edmonton
Wednesday, March 18
HIV Edmonton
(780) 488-5742 or e-mail at:
sueann.p@hivedmonton.com
 
Toronto
Tuesday, March 10
Toronto People With AIDS Foundation
(416) 506-8606 ext. 216 or e-mail at:
spatey@pwatoronto.org
 
Montreal
Wednesday, March 11
Coalition des organismes communautaires
quebecois de lutte contre le sida (COCQ-Sida)
(514) 844-2477 ext. 32 or e-mail at:
info@cocqsida.com
 
Quebec City
date TBD
COCQ-Sida & Mouvement d'information et
d'entraide dans la lutte contre le sida a Quebec
(MIELS Quebec)
(418) 649-1720 or e-mail at:
miels@miels.org
 
Halifax
Tuesday, March 24
The AIDS Coalition of Nova Scotia (ACNS)
(902) 425-4882 / 1-800-566-2437 or e-mail at:
acns@acns.ns.ca
Tags: criminalization of hiv
 

The re-criminalization of queer sex
 
ANALYSIS / How law and stigma conspire to use HIV to turn gay men against each other

 
Matt Mills / Vancouver / Wednesday, June 07, 2006
 
"Not only do the complainants presumably accept no responsibility for their own choices, risks, and sexual health, but they are facilitating the persecution and prosecution of this young man living with HIV because, they say, above all other considerations he ought to have told them he was positive. ......Betterridge says the public health system is better equipped to deal with the spread of HIV than is criminal law."
 
In February, a 28-year-old Vancouver man was charged with aggravated sexual assault. The VPD issued a press release about him under the heading "Wanted Sex Offender." It read in part: "It is alleged that he had unprotected sex with two Vancouver men denying that he was HIV-positive. Investigators are interested in speaking to anyone who can provide further information. .. Please contact Vancouver Police Sex Crimes Unit. The identity of all callers will be protected."
 
Xtra West spoke with the man's lawyer, Jason Gratl, who says his client is innocent, that he was the bottom in both cases, that he drove from Toronto to Vancouver to surrender himself when he found out the police were looking for him, and that both of the complainants continue to test HIV-negative many months after they fucked the accused.
 
Ken Bosem Illustration
 
"Ultimately I think I can say the complainant's version of the facts will not go unchallenged," says Gratl. "My problem is I can't reveal information that tends to disclose the identity of the complainants because their identities are subject to a publication ban. It puts my client in an awkward position. His private information is splashed all over the papers, and it's difficult for him to defend himself in any substantive way. It's a little unfair. Ultimately, I'm not in a position to begin holding a trial in the media or to advocate on his behalf because I'm going to get hung up on the publication ban."
 
"We lay charges based upon the evidence that we have," says Geoff Gaul, director of legal services for crown counsel whose office filed the charges. "When we do our assessment of the evidence, we determine what the most appropriate charge is. Based on the information and evidence we have, we laid a charge of [two counts of] aggravated sexual assault. The case is before the court. I don't want to jeopardize the strength of the prosecution, or infringe upon the rights of the accused. The proper forum for the public disclosure of the evidence is a courtroom and we're going to respect that."
 
Xtra West is also prevented from identifying the complainants in this case by the same publication ban. Regardless, this paper doesn't out closeted queer people; we don't publish the names of found-ins, johns or sex trade workers without their consent; and we don't presume to disclose the HIV status of anyone without their direct, on-the-record, declaration and permission.
 
If every person stood up and publicly owned their sexual orientation and HIV status (especially those in the public eye), stigma and discrimination would likely dissolve because of a simple dearth of shame. But it's ultimately a personal decision to release sexual and medical information; one that we say the media has neither qualification nor moral authority to make.
 
Although the accused in this case has been named, and his photograph published widely in Vancouver's mainstream press, Xtra West won't identify him without his full cooperation and consent.
 
Why write about this at all?
 
Publication bans in sexual assault cases were obviously intended to protect victims of violent and humiliating sexual attacks from further victimization and public scrutiny of their sex lives. Any humiliation the complainants may feel in this case is a product of the irrational stigma associated with HIV and the very rational fear of the discrimination that accompanies it. The accused in this case carries that burden alone, and now the VPD-imposed label of "sex offender," while the complainants, who failed to roll condoms onto their cocks before they literally and figuratively screwed the accused, are protected as "victims."
 
Not only do the complainants presumably accept no responsibility for their own choices, risks, and sexual health, but they are facilitating the persecution and prosecution of this young man living with HIV because, they say, above all other considerations he ought to have told them he was positive.
 
"Have they been living in a cave?" asks Phillip Banks, director of HIV prevention services at AIDS Vancouver. "The issue of gay men, who I'm assuming didn't have guns to their heads when they decided to have sex without condoms, and who continue to be shocked and surprised when they find out they had sex with someone who maybe had a sexually transmitted infection, is ridiculous."
 
"Everyone does ultimately have responsibility for their own sexual health, but that is not a legal position," says Glenn Betterridge, senior policy analyst for the Canadian HIV/AIDS Legal Network. "The courts have clearly stated that in matters of HIV, the person who is HIV-positive has the added responsibly. They have to disclose their HIV status or take measures to reduce the risk or use condoms. Even the condom defence is not crystal clear in law. The court has said the careful use of a condom might reduce the risk of HIV infection to the extent that it would no longer be significant. That is a grey area because the Supreme Court said it 'might reduce'- not 'does reduce.'"
 
So how can this happen?
 
What is it about the law that allows the young man in this case to be tried for aggravated sexual assault; a crime that carries a maximum sentence of 25 years in prison, the same penalty meted out under the same section of the criminal code to someone who coldcocks and rapes another person at the point of a gun?
 
How is it that he can be pilloried in the court of public opinion as a rapist and Typhoid Mary while the men who actually did the fucking, who failed to wrap, who despite their own reckless choices aren't living with HIV, are protected as victims?
 
In the 1998 Cuerrier case, in which a man had unprotected sex with his female partner without telling her he was HIV-positive, the Supreme Court of Canada ruled that pos people must disclose their status to their sex partners. By failing to do so, ruled the court, they're tricking their partners into sex to which they would otherwise not have consented. The court also ruled that a pos person who fails to disclose and has unprotected sex can be charged with aggravated assault.
 
In the 2003 Williams case, a man had unprotected sex with his female partner and may have unknowingly passed the virus to her before he tested HIV-positive but continued to have unprotected sex with her after he learned he was positive. The court ruled that a person who fails to disclose to his sex partners that he has tested HIV-positive may be charged with attempted aggravated assault, even if his partner was already positive when they had unprotected sex.
 
Another possibility raised by the court, but not decided for sure, is that a person might be convicted of attempted aggravated assault for failing to disclose his HIV status, even if he hasn't actually tested positive himself. All the prosecution would have to show is that a person acted "recklessly."
 
Anyone who might have any "significant risk" of being HIV-positive, the court said, might be charged with attempted aggravated assault if they fail to disclose that there is a possibility he may be HIV-positive.
 
Banks estimates as much as 20 percent of gay men in Vancouver are HIV-positive. So, it would not seem to be much of a stretch for the court at some point in the future to come to the conclusion that any gay sex bears a significant risk.
 
"The exact point at which somebody is engaged in high-risk activities and has the obligation to disclose is not clear," says Betterridge. "Does everyone who has ever had unprotected sex have to disclose that to their sexual partners before they have unprotected sex again, or with another partner? Or is the Supreme Court really talking about people who have engaged in barebacking parties, and shared intravenous needles? Probably the latter."
 
What about blowjobs? What about rimming? What if someone somehow manages to pass the virus along despite his use of a condom? Transmission of HIV is at least possible in all these scenarios. Could anyone who has ever given or received a blowjob be open to a charge of aggravated sexual assault? What about any man who has ever had sex with another man?
 
"There could be any kind of dynamic at play," says Banks. "Guys have told me stories of tops not seeing themselves at risk and therefore not being as concerned with the use of condoms as they would if they were bottoms, and how that leads men to decisions around condom use. It's just so complicated."
 
"If someone said there's a two percent chance it's going to rain today, would you bring your umbrella?" asks Betterridge. "Would you say there's a significant chance it's going to rain today? In effect, the Supreme Court has said that very low risk is a significant risk. A statistically low risk of a per-incident potential of transmission, the Supreme Court has said, is a significant risk of serious bodily harm."
 
The Canadian AIDS Society HIV Transmission Guidelines for Assessing Risk is the community standard among AIDS organizations for the assessment of risk of HIV transmission. That publication rates activities--like different sex acts and intravenous drug use--on a five-point scale from "no risk" to "high risk." Barebacking is rated high risk, and there is no differentiation between fucking or getting fucked. Blowjobs without condoms are rated low risk, again with no differentiation between sucking and getting sucked. Rimming is rated negligible risk, whether you're eating or getting eaten. But the Supreme Court hasn't established any criteria in law for where exactly the line between risky and not-so-risky lies.
 
"It's open for debate and argument," says Betterridge, "but the Supreme Court has clearly opened up the possibility that people who have not tested for HIV will be held to account if they engage in behaviour the Supreme Court has called reckless. At the end of the day, people couldn't be found guilty if they weren't HIV-positive, but you can't avoid liability by deciding not to test and by not knowing."
 
Queer people can't walk around avoiding sex because we're afraid of being re-branded as criminals. What are the possible solutions?
 
Betterridge says the public health system is better equipped to deal with the spread of HIV than is criminal law. Each province and territory has different public health laws, and those laws can be complicated and difficult to understand, but each provincial health officer has wide-ranging powers to direct treatments and counselling to HIV-positive people while better protecting patient confidentiality.
 
Health officers even have powers to detain or isolate those who are simply in denial about their status, or who can't manage their HIV because of coincidental mental illness or addiction. That detention is reviewed on an ongoing basis, the key is never thrown away, and punishment for living with a chronic and often deadly disease is more likely avoided.
 
"The criminal law is a very blunt instrument," says Betterridge. "It doesn't have a graduated range of intervention in the same way that public health does in terms of counselling, bringing people into public health services, and providing people with mental health services they might need.
 
"The use of the criminal law may have certain negative effects," he continues. "One is to increase the stigma and discrimination associated with HIV which may dissuade people from coming forward to get tested. If people know there is the potential to get criminally arrested, charged and perhaps found guilty and imprisoned because they know they're HIV-positive, they might stay away from HIV testing."
 
In the queer community, gay men know it's that stigma that leads even out and proud pos people to whisper about their HIV when talking about it in public. Every time their status is revealed they must consider that jobs, homes, friendships, and personal safety might be at stake.
 
Queer sex, any sex, is simply not fundamentally incompatible with HIV. Many serodiscordant couples have long and fulfilling sex lives. It is possible and relatively easy to minimize the risk of transmission for virtually any sex act imaginable. Gay people have been fighting the epidemic for 25 years. AIDS affected gay men first in the Western World and we lost many thousands of our brothers to the disease. But for some reason, in spite of all that, there still lingers an HIV closet even within the queer community.
 
A pos person has to wonder every time he has sexual contact with anyone if he'll be treated as a rapist under criminal law, if his health history and personal information will be fodder for gossip in the community, and if some disgruntled trick might someday decide to try to have him thrown in jail by accusing him of not insisting on the use of condoms. The law as it stands now actually functions to turn queer people against one another. It's simply destructive to our community and certainly adds to the already heavy burdens of individual queer men living with HIV.
 
Pos people, people who might be pos, gay men, may be damned to prison if they don't disclose their entire sexual histories and HIV test results, and damned to public ignominy if they do.
 
Betterridge lays part of the blame for this stigma on the media.
 
"Unfortunately the coverage in Canada of late has been for the most part incredibly sensationalistic," he says. "Where the Globe and Mail will pay a reporter to be almost full-time in Africa covering the many aspects of the HIV/AIDS epidemic, there is very little coverage about the Canadian epidemic.
 
"We tend to see a big picture of someone's face as an AIDS criminal splashed across the front page," he continues. "The predominant portrayal of HIV/AIDS in Canada is people engaging in sex that places others at risk. We don't see stories about the difficulties of living with HIV, the challenge of HIV, or the impact of the medications. The media has not been a partner in getting the message out that HIV is something that can impact anyone, that we all have to know it's out there and know the facts.."
 
As examples, Betterridge points to the HIV prevalence rates in aboriginal communities that far outstrip the proportion of aboriginal people in the Canadian population. "That's a story that has yet to be told to the Canadian public," he says. "HIV was so closely associated with the gay community in the early years of the epidemic, but it really seems now to be only a series of community charity events. There's no political discussion about the impact of HIV/AIDS on the gay community.
 
"Part of the way to address the stigma and discrimination is to talk openly and frankly about sex and about HIV," he continues. "Oftentimes people talk in code, using words like "are you clean?" "do you play safe?"--all sorts of codes for "are you HIV-positive?"--which only perpetuates the stigma. People assume things and avoid full and frank discussion of sex with HIV."
 
Time and again, in Africa and virtually every city in the world, when governments commit to prevention and education campaigns, and when people commit to open discussion about risks and realities, HIV transmission rates drop drastically and stigma and discrimination ebbs. But over the last few years, even as our understanding of the pathology of the epidemic and the virus itself grows, the media has moved to more sensational and simplistic coverage in an effort to attract the largest possible audience. Therapies have prolonged lives, leading people to believe HIV is not the serious problem it once was. Governments have changed priorities, and Canadians and queer people have failed to adjust their attitudes to keep pace with the changing times. The result is unnecessary and avoidable suffering.
 
If everyone simply took responsibility for their own sexual health and educated themselves; if everyone simply assumed that each of their sex partners were HIV-positive; indeed if everyone just assumed for the purposes of sex that they were themselves HIV-positive and conducted themselves accordingly, the stigma would likely be weakened, at least in the queer community, and transmission rates would undoubtedly drop.
 
"Teenagers know less about HIV today than they did 10 years ago," says Betterridge. "There's a perception that the existing medications can cure HIV. The media has not been a partner in getting the message out. So our wider public health efforts have been undermined."
 

Swiss court overturns failure to disclose conviction HIV CRIMINALIZATION / Risk of HIV transmission too low say experts
Xtra.ca staff / National / Tuesday, March 03, 2009
 
A Swiss court has overturned a prison sentence for a 34-year-old man who allegedly failed to disclose his HIV-positive status to a woman before having unprotected sex with her.
 
The woman did not become HIV positive as a result of having sex with the accused.
 
The accused man has a very low viral load because he is undergoing antiretroviral drug therapy. The court threw out the conviction against him after prosecutors became convinced that the risk that he could transmit the virus, even during unprotected sex, is less than one in 100,000.
 
Read a more complete account of the Swiss story on Aidsmap.com.
 
This is an important development in HIV criminalization worldwide because it is an example of a court of law taking a more sophisticated real-risk based approach to HIV prevention.
 
In Canada things are much different.
 
In 1998 the Supreme Court of Canada ruled that you could be charged with aggravated assault for failing disclose your HIV-positive status to a sex partner before having unprotected sex. You don't need to transmit the virus to be found guilty - you don't even necessarily need to be capable of transmitting the virus - you just need to be HIV positive.
 
In the last few years an increasing number of HIV-positive people in Canada, including many gay men, are being charged and convicted of violent offences ranging from aggravated sexual assault to murder.
 
It is morally dubious to deliberately expose a sex partner to a potentially lethal virus but a growing chorus of activists and researchers are saying HIV criminalization is fraught with injustice. They argue variously that criminalization hampers HIV-prevention efforts, fans the flames of HIV stigma, is rooted in misinformation and hysterical fear, puts the responsibility to protect sexual health entirely and unfairly on the shoulders of people living with HIV, turns gay men against each other and serves only to further victimize poz people.
 
Read more about HIV criminalization here.
 
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"We need to recognize that the current criminalization of HIV transmission is not doing any good, and might even have the perverse effect of increasing HIV transmission by people who do not know or don't want to know that they are infected," says Dr. Mark Wainberg, director of the McGill AIDS Centre at the Jewish General Hospital in Montreal.
 
"The Crown presented evidence that all the women contracted an HIV strain from a shared source, a strain rare in North America but common in areas of Africa. Aziga hails from Uganda."
 
Several Canadian courts have ruled that persons who are not informed that a sexual partner is HIV-positive cannot truly give consent to sex. As a consequence of this, the death of the two women is automatically considered to be murder instead of a lesser charge such as manslaughter. However, there are those who argue prospects of such penalties might deter a significant number of people from being tested for HIV infection in the first place. After all, if you do not know that you are HIV positive, you cannot logically be accused of transmitting it deliberately.
 
"We need to recognize that the current criminalization of HIV transmission is not doing any good, and might even have the perverse effect of increasing HIV transmission by people who do not know or don't want to know that they are infected," says Dr. Mark Wainberg, director of the McGill AIDS Centre at the Jewish General Hospital in Montreal.
 
The failure to identify as many HIV positive people as possible will lead to higher rates of HIV spread than would otherwise occur. Research has also revealed that as many as 50 per cent of all new HIV transmissions are attributable to people who have only been infected recently. One reason for this is that levels of virus in the blood and sexual fluids are usually very high for about a six-month period following infection. Delaying testing also means that many HIV-infected persons may not be diagnosed for several years after infection, thus giving the virus additional time to replicate and cause significant, often irreversible, damage to the immune system. This can sometimes result in life-threatening infections that might otherwise have been prevented. There are also concerns that failure to initiate anti-HIV therapy early may leave people more vulnerable to a variety of cancers. Thus the key to a healthier society might lie in better awareness and timely intervention programme. Stigmatizing or criminalizing will surely have a negative impact.
 

HIV-positive man killed with hatred
 
Apr 06, 2009 04:30 AM
Rosie DiManno
 
When he wasn't busy fornicating them to death, Johnson Aziga must have hated women.
 
Alternatively, the former Ontario civil servant was entirely indifferent to females, without feeling or conscience as he introduced a silent killer - cloaked in lust - into their lives.
 
Dishonest and duplicitous, thinking only of his immediate sexual gratification, the 52-year-old knowingly and intentionally exposed his unsuspecting lovers to the HIV virus right up until the morning of his arrest on Aug. 30, 2003.
 
He cut a wide swath with his penis.
 
On Saturday, after deliberating for three days, a Hamilton jury found Aziga guilty on two counts of first-degree murder, 10 counts of aggravated sexual assault and one count of attempted aggravated sexual assault.
 
It was a historic verdict: The first time in Canada - or anywhere in the world, as far as the prosecution is aware - that a criminal case involving the reckless transmission of HIV has resulted in a murder conviction.
 
Deliberate, without prophylactic protection, done in full awareness that infection of others might result, withholding his HIV-positive status and repeatedly denying his condition to sexual partners who inquired.
 
Two of those women subsequently died from AIDS-related lymphoma, their videotaped testimony - given shortly before they passed away - played for the jury.
 
Five other women have tested positive for HIV, the virus that causes AIDS. Four more women have tested negative. But it's still aggravated sexual assault because, as the Crown successfully argued, valid consent cannot be given when information about a partner's diagnosed HIV-positive status has been withheld.
 
There is an obligation, legally and morally, to disclose.
 
Aziga did not tell and, further, denied it when directly quizzed by girlfriends who were persuaded to cease using condoms.
 
All the while, Aziga was receiving antiretroviral therapy to control the advance of his illness. Early detection is crucial for treatment of HIV, modern drugs now extremely effective as intervention, such that the virus is no longer a looming death sentence.
 
Aziga never gave his many lovers that benefit. He, however, appears perfectly healthy, continuing his drug regimen through the nearly six years thus far spent in custody.
 
Now, he will likely die in prison: First-degree murder means a mandatory life sentence, with no parole eligibility for 25 years.
 
The trial took five years to come to court, Aziga firing several lawyers along the way, and six months to conclude. Aziga never did take the stand in his own defence. But he'd hardly been a mute defendant. Superior Court Justice Thomas Lofchik allowed the separated father of three to indulge in oratory during earlier phases of the judicial proceeding, which could not be reported at the time.
 
In late 2006, Aziga - who often scoured legal textbooks in court - mounted his own arguments in opposition to the criminalizing of HIV transmission.
 
"This is an issue in which it takes two to tango, the sex issue," he expounded. "Somebody may be ... fraudulent and so mean, but it takes two. It's unfortunate, some people are being reported dead ... As I said, this is a statement of frustration, not necessarily of anger, especially when you see the exercise that is going on. When we are talking about somebody dying, trying to see whether it should be accepted (as evidence) or not.."
 
Shockingly, there are some AIDS activists who support the view that HIV-positive individuals have no obligation to reveal their status to sexual partners; that everyone is responsible for taking their own precautions. One school of thought contends that criminalizing even reckless behaviour will discourage people from being tested for HIV as a pre-emptive legal defence: They didn't know they were infected, so can't be held accountable for passing on the virus.
 
Aziga was diagnosed with HIV in 1996. He received counselling from medical staff on both safe sex practices and his legal obligation to disclose positive status to sexual partners. Fully educated about the virus, Aziga nevertheless continued his reckless behaviour before and after separating from his wife. Twice he was issued with orders under the Health Protection and Promotion Act to abstain from sex involving penile penetration unless he disclosed his HIV and wore a latex condom "from onset of erection."
 
Following his arrest - his photo circulated in the media - several other women came forward to lodge complaints with police. In the end, there were 13 complainants, though two were dropped en route to trial.
 
The Crown presented evidence that all the women contracted an HIV strain from a shared source, a strain rare in North America but common in areas of Africa. Aziga hails from Uganda.
 
He liked his women white, plain, even homely and probably lonely. They were co-workers, single-mom neighbours and ladies picked up in bars.
 
Of course, to make love is not necessarily to like and clearly not to give a damn.
 
 
 
 
 
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