The law cracks down on HIV

The growing criminalization of HIV could mean increasingly harsh treatment for those convicted of spreading the virus.

Tim McCaskell, the cofounder of AIDS Action Now, says the current first-degree murder trial of Johnson Aziga — a Hamilton man charged in the deaths of two women after infecting them following consensual sex — could be an alarming precedent.

“When you develop a social zeitgeist that the solution to crime is jails and penalties and punishment then that’s how you treat an epidemic as well,” says McCaskell. “It seems to me that the fact that he’s been charged with murder is more about sensationalism and upping the ante than it is about even getting a conviction.

“But if you do get a conviction on that we’re really in trouble.”

The case against Aziga is the first in Canada involving a murder charge, says Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Network. He says there have been a few previous attempted murder charges, but the circumstances were vastly different.

“There was clearly assaultive behaviour, biting, spitting,” Elliott says. “It’s not been a case of consensual sex. It’s been cases where they say, ‘I hope you die,’ as they throw blood or something. This [consensual sex] is completely different unless you have a lunatic who’s deliberately trying to kill people by infecting them by having sex.”

Elliott says a conviction in the Aziga case could lead to murder charges years after someone was infected through consensual sex.

“It’s possible, if the person to date has not been charged with murder, but has been convicted of aggravated sexual assault which has been the predominant charge, and then 10 years later the infected person dies.”

Elliott says he’s more worried about the possibility of charges being laid against people who infect a sexual partner without even knowing their status.

He refers to a 2003 case from Newfoundland in which a couple had unprotected sex before the man tested positive. He did not disclose his status and they continued to have unprotected sex. The man was only convicted of attempted aggravated sexual assault because it couldn’t be proved that the woman was infected after his test. The case ended up in the Supreme Court of Canada.

“The Supreme Court said, ‘You might be reckless if you have reason to believe you might be infected and don’t disclose the fact,’” says Elliott. “It certainly opens the door to a case where prosecutors could argue someone was reckless if there are circumstances in which a person should have known — if they were called by a past contact or by Public Health.”

Elliott says a man in Switzerland was convicted of grievous bodily harm after he was told by a previous partner that she was HIV-positive. The man did not get tested and then infected another woman.

“You have to get into drawing lines,” says Elliott. “When should you have known? It starts to get absurd if you go down the line.”

But even if someone did disclose their positive status, they might not be believed if their infected partner denies disclosure took place.

“There is a concern that these he said/he said cases will result in convictions due to the pervasive stigma and discrimination facing people living with HIV/AIDS,” writes Ryan Peck, the executive director of the HIV/AIDS Legal Clinic (Ontario) (HALCO), in an email.

Elliott cites a case in Montreal involving an HIV-positive woman who allegedly did not disclose her status as an example of the legal discrimination faced by HIV-positive people.

“That case seems to have involved a physically abusive relationship in which he was charged with assaulting her,” he says. “The advocates claim that was used to lessen the sentence given to him.”

Peck states that the situation is so treacherous that HALCO is providing possible strategies for disclosure.

He suggests HIV-positive people consider disclosing their status in front of friendly witnesses or a counsellor or support worker who’s taking notes.

He also suggests double-checking. “Have a friend ask the sex partner if they know about your status,” he writes. “If disclosure takes place online, make sure it is done clearly, ie not using code words. The sex partner should acknowledge the disclosure, and a copy should be saved and printed.”

Peck suggests that having a sex partner sign an acknowledgment would be legally ideal but unlikely.

“Get your sex partner to sign a document before sex that says that he knows you are HIV-positive and that he knows what it means,” Peck writes. “The document should include the date and the partner’s name and signature. This is a good way for you to protect yourself. But it is also the most unrealistic strategy.”