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Man charged with attempted murder for HIV nondisclosure

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Man charged with attempted murder for HIV nondisclosure

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Details of the case not yet revealed
A 28-year-old man has been charged with aggravated assault and attempted murder for failing to disclose his HIV status to a male sexual partner.

The man was arrested by officers of Toronto's 32 division on Wednesday.

"We have reason to believe he attended Church and Wellesley and may have actually engaged in sexual activities without disclosing his HIV status," said Const Brad Stapleton of the Toronto Sex Crimes Unit at a May 7 press conference.

The purpose of the press conference was to issue a public safety alert. The police are looking to speak to anyone who may have had sex with the accused.

According to Stapleton police have reason to believe the accused has been HIV-positive since 2000 and that he's been frequenting the gaybourhood for the past five years.

Stapleton declined to get into the details of the charges.

"I can't get into the victim's circumstances, just that there is a victim," he said.

The accused is scheduled to appear in court for a bail hearing on Tue, May 12.

“It’s definitely concerning that attempted murder charges have been laid and we’re waiting anxiously along with everyone else for the details,” says Alison Symington, senior policy analyst for the Canadian HIV/AIDS Legal Network.

“The question is why attempted murder in this case if it is otherwise consensual sex with HIV nondisclosure? Why would it be an attempted murder rather than aggravated assault at this point? Until we have more details it’s hard to guess what has happened.”

The charges come a month after a Hamilton man was convicted of murder for failing to disclose his HIV status to his female partners. On Apr 4 Johnson Aziga, 52, was found guilty of two counts of first-degree murder, 10 counts of aggravated sexual assault and one count of attempted aggravated sexual assault.

In the wake of the Aziga conviction advocates for people living with HIV/AIDS were cautioning restraint in the use of criminal charges when it comes to HIV nondisclosure, arguing that it may actually hamper prevention efforts.

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"I fear it gives the general public more vulnerability to HIV infection by giving them a false sense of security that criminal law will act as a deterrent to people engaging in high-risk sexual activities without disclosing their status," said Angel Parks, coordinator of the AIDS Committee of Toronto's Positive Youth Outreach program, at the time of the Aziga verdict. "Whereas we know there have been some studies that show... the majority of cases of transmission actually occur before a person has been diagnosed. It's when they're most infectious and before they have anything to disclose to their partner."

In the wake of the attempted murder charges Symington says the network will continue to try to clarify this emerging area of law.

“Criminal law is our most powerful tool in our society,” she says. “When an area of law develops like this without reflection and in ways that are inconsistent… that causes concern about how our criminal justice system is working.

“From our perspective we’re still working for the same things: To get quality research on the impacts of this area of law, to get an informed rational policy debate that would help toward guidelines to make the law develop in a more rational way and working in actual cases for judicial decisions that would clarify uncertainties in the law.”

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Comments

Beyond legally blonde...
This debate has to move beyond the current legal framework, where we are polarized to pick a side: "guilty" or "not-guilty"? This issue crosses so many areas of life, ranging from public health, prevention & education, voluntary testing and counseling, privacy, discrimination, community standards around morals and norms, right down to both partners' individual rights and responsibilities (regardless of whether you're HIV- or HIV+). Like it or not, we live in a society which stigmatizes diseases such as HIV. This stigma fuels discrimination against the HIV+ resulting in social behaviours such as underground or anonymous sex, non-disclosure of HIV status, fear of HIV testing, reduced treatment of HIV, and ignorance of HIV and other STIs. Sure there are bad people out there, who have done bad things to others, and they should be brought to justice. However the large majority of HIV+ people out there are sensitive, good, and law-abiding people, who have gone through incredible difficulties living with HIV, and wouldn't wish HIV infection on anyone. These people need to know they they too have rights which will be protected, that they have clear guidelines with which to direct their lives and inform their decisions, and they need reassurance that they will not be considered latent criminals simply because of their health status.
For those of us who think this law might be just.
Perhaps I have a poor understanding of this issue, but I grew up being taught, that if you willfully know you are doing something that may harm someone else, that’s wrong. This seems to be confirmed in numerous religious faiths/belief systems, our legal system and the ethics of most people I have ever known. A previous reader put it best: it is never the victims responsibility to defend themselves. Citing examples that other communicable diseases are not criminialized does not change this fact (though it does point out flaws and yes, possibly discrimination in our justice system)

I am certainly concerned about discrimination against HIV positive members of our society and I think it is an issue our community must pay far more attention to. However I fail to see how protecting people who DELIBERATELY fail to disclose their positive status helps protect other positive people in the community from discrimination. Furthermore, the tone of some the comments also leads me to be concerned that those of us is the community that question the wholesale opposition to this law will be accused of abandoning the community and engaging in discrimination or perhaps even be labeled “self hating fags,” a favourite derogatory term used against those those who dare to go against an accepted norm in this community.

Jeremy Dutton, Calgary.
Not convinced
Gay guy, Edmonton wrote: "Show some respect for the people [police] who respect our rights." Wahaha. Tell that to the mother of Robert Dziekansnki, the man who was tasered to death for losing his temper -- and then invite me over to your Barbie Dream House.

"It is NEVER the victim's responsibility to defend themselves..." Are you joking? Was the "victim" coerced, drugged or blackmailed into having unprotected sex? Where is the "proof" that Mahmoodi was the 'infecting agent'? If this "victim" engaged in unprotected sex once, how do we know he hasn't probably done it several times, and how do we know when the virus was acutally transmitted to him? It's 2009. We live in the age of AIDS. We're all informed, educated adults, and we know that anyone we meet might have hiv; men lie, so we always use condoms if we have insertive sex. Nonetheless, Mahmoodi knowingly spread a deadly disease and should be punished; ok charge him with assault, not attempted murder -- that's for Neanderthal governments like Jamaica's, Iran's or Zimbabwe's. Our rights have been hard-won, and you sound more like a condescending breeder than a "gay guy".

And just to clarify a vague point in my first post: Risk of hiv transmission may be a bit less from a passive partner to an active one, but all other bugs from Herpes to Syphilis are easy to catch whether you're a top or a bottom; wear that condom.
This is the Canada I know!
Stunned, Toronto ON. Those same "blood thirsty" police are the ones whom, if you got bashed or sexually assaulted, would be investigating and trying to find the criminals responsible. Show some respect for the people who hold society together and protect our rights. In the Canada I know, criminals are punished for their crimes. If this man is guilty, then he CHOSE to break the law and violate the rights of the men (THE VICTIMS) he was having sex with . If he had followed the law and disclosed his status he would have nothing to worry about.
"He may be in denial of the fact that he carries a lethal bug, angry at himself, at the man who infected him and at all humanity. He may be bi and have no emotional support. He may feel alone, without hope, and he may have given up on all life entirely." REALLY?? Cry Me a River... Other then the dementia you mentioned, Those are not reasons to commit a premeditated act of sexual-assault/attempted murder. If your definition of Canada is place where if "you feel sad" then the law doesn't apply to you, then that would be a truly dark age. It is NEVER the victim's responsibility to defend themselves from sexual assault which, if guilty, is exactly what this man did.
precedent setting & media banned
This may 19, 2009 after 3 years of agony I'm in court with my common law ex regarding my family law case. I'm poz he is not and he has used this weapon against me to discriminate now that it serves his needs now to make me look bad. It was ok for 3 years together and a non issue always. Then after a child is in the pic (used his hiv neg sperm) and its sparked a huge precedent setting, media banned case. We raised our child together without any issue for another 3.5 years for a total of almost 7 years together. Now with such criminalization my entire family, career, child and livelihood are in jeapardy. Will he use this in an already discriminatory case...damn right he will. There was a time when it was suggested equally that it is both parties responsibilities to act. It was told to me to assume your partner IS poz and make decisions from there on in. What about my rights and who infected me? What if you protect yourself from higher risk sex and dont' say anything is this a crime just in not saying anything? What if there are other drugs involved? This is a volitile minefield to navigate. There is enough fighting the stigma of simply BEING hiv pos, being gay, being non biological, being married or common law and then come our parenting rights....our antiquated legislation needs to step into the reality as the world is now with new families, new considerations and new rights. What a world we live in. What about the life threatening hate crimes going on towards gay people like bashing. This is intentionally life threatening are the laws and police protecting us? The real crime here is that the law picks who, when and where to decide who the victim is and who to protect....its disgusting Canada, truly disheartening.Gay pride ? What is this?
Not the Canada I know
That's not much of an argument, WW. We all know that the risk of viral transmission from passive partner to active, while not zero, is fairly remote. Besides, nobody just shoves anything anywhere on his own. The only real protection is know thy partner; and that means sit down with him and his doctor and see proof of two up-to-date neg tests; otherwise, don't have sex. But the issue that's exploding here is that like Capital Punishment, these new prosecutions will not deter dangerous behaviour. A poz man may have dementia; he may be in denial of the fact that he carries a lethal bug, angry at himself, at the man who infected him and at all humanity. He may be bi and have no emotional support. He may feel alone, without hope, and he may have given up on all life entirely. He needs to be around other poz guys. He needs counselling, love, hugs, and to be shown how he can still have a good life and a good sex life without endangering others. We've been here before; and it's the Margaret Wentes and bloodthirsty police who are taking us back to those dark and most unCanadian times.
What is this, Orwell's 1984?
I cannot believe what Steve is saying here: "What if in the middle of sex, your partner decides on there own to take you in a way that fully exposes them to HIV [...] take some responsibility for how you treat others." Reading this, I feel like I am in some kind of crazy world where up is down and red is blue. Don't you get it! The person who decides to penetrate a random person without any discussion of status is the one being irresponsible!!! Not the person who is poz who has no obligation to disclose, and who protects their partners by playing safe. If a neg person just shoves it in there, maybe THEY should be charged with sexual assault. They did something that was not agreed to, and now they expose the person with HIV to risk. Risk of unfair prosecution, risk of their picture being all over the media, when THEY DIDN'T DO ANYTHING WRONG!!!
Get real
I totally disagree with Worried well.

If someone knows they have HIV then they cannot morally and ethically have sex with someone that is negative without disclosing it.

To do so is just selfish and should be criminalized.

Im sure its a horrible thing to have HIV but you have to accept the cards your dealt. Your putting others at risk. What if in the middle of sex, your partner decides on there own to take you in a way that fully exposes them to HIV. If you have knowledge that would have allowed them to choose how to take procautions and didnt share it then you are a danger to them and others.

HIV is a horrible disease and anyone that has contracted it from any means is a victim.

Its sad but take some responsibility for how you treat others.
Kristallnacht
This news shows how the knives are now out for people with HIV. The victim (ie, the arrested person) "may have actually engaged in sexual activities without disclosing his HIV status" says the police! We need to step back and problematize that astounding statement. A poz person engaging in sex without disclosure is not attempted murder and it is not even a crime. Nor it is even up for ethical debate, frankly. People with HIV do have the right to have sex without disclosing their HIV status. And in droves, they do so safely without exposing anyone to genuine risk. The ethical consideration comes in when any two people have unprotected anal/vaginal intercourse with any other person who's HIV status is unknown to them. This development affirms that in the current legal context, the safest thing for people with HIV to do is to never ever tell their HIV status to anyone.
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