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The law cracks down on HIV

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The law cracks down on HIV

UPPING THE ANTE. Richard Elliott of the Canadian HIV/AIDS Legal Clinic says murder charges are now possible in cases of HIV infection. IMAGE 1 OF 1
Murder charges are now on the table in Canada

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.”
 

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Comments

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Wow, why would anybody ever get tested?
I can't imagine why anybody would get tested in this climate? I would advise against testing, you could place yourself at extreme risk for false imprisonment. It doesn't take much for some queen to 'get you' for some slight he perceives you did to him. Wow, murder! Who in their right mind would consider getting tested?
Defending the indefensible: Johnson Aziga.
I've read this article over twice to make sure I have interpreted it correctly.

I've always wondered about what entities in Canadian society have undermined personal accountability to the point where never taking responsibility for *anything* (especially sexual ethics) is becoming the norm. And now I know the gay community is a major contributor to this ethos.

Its also obvious why the gay community is hated as much as they are, by increasingly conservative Canadians.

Its FUD articles like this that are the reason. The article is wailing about the rights of people like Johnson Aziga, who knew he had HIV, and knew the laws, and had counselling, and despite all of this, was having unprotected sex with women until the day he was arrested!!

That you are worried about the precedent his case will set for the gay rights agenda is disturbing.

I think it is tacit support for the idea that what he did is a kind of lower bar for the behavioural standards of the gay community, and a lack of disclosure of HIV status is condoned by the writer of the article.

The names Johnson Aziga and Carl Leone are infamous these days. The Carl Leone case resulted in a long term prison sentence for a sociopath, and the same should apply for Aziga.

Johnson Aziga inflames stereotypes about blacks (see stormfront.org), and that he has two African lawyers show a tribal mentality. The forensic evidence is irrefutable about the strain of HIV that prepetrator and victims had, and no amount of playing the race card will undo that medical fact.

HIV positive gay people, like everyone else are under a moral obligation to conduct themselves with care around others.

Thankfully, the laws are being changed to force people to take responsibility for their reckless actions. All thats lacking is capital punishment as a final recourse.

Citing ambiguities and what-if cases is not an excuse to allow for a sexual free-for-all. Smell the coffee and wake the hell up!
Are you nuts??
Seriously what are you guys on? A person with HIV has the obligation to tell their partner about their positive status. Period. Of course condoms should always be used, but condoms are not 100% effective. We're not talking about a rash here, we're talking about death. If I ever found out that someone either omitted or lied about their positive HIV status to me, they'd have a serious problem.
Lorin what are you smoking????
The only justice in seeing these crazy people that push these charges is that them themselves who do get infected have to live with the same discloser laws. Those that become infected will have to live with silly requirements or face the same requirements to make people like Lorin feel safer to fuck around with no responsibilities. Lorin in Edmonton is one of the reason that HIV is still a problem. Disclosure is not a solution. Rather than punish those that have HIV, governments should spend resources to educate nemrods like Lorin to use protection, rather to rely on someone telling you they are positive.
Ignorant Albertan
Wow, I cannot believe how ignorant Lorin's comment was. So if a woman has unprotected sex and she gets pregnant is it therefore the man's fault? Has Lorin ever tried telling someone they were positive? Ever? Just to see what it would be like? Instead of throwing people in jail, the government should be working to remove the stigma of HIV, THAT'S why people don't disclose. To say you play no responsibility in protecting yourself when you're having sex is moronic and idiotic.
Get a grip
Where to start with what's wrong with Lorin's viewpoint? First of all, a person with HIV is a person just like anyone else, not a speeding car or any of the other ridiculous misplaced metaphors that get used by people. People with and without HIV have sex with one another all the time. The way to reduce risks is for both people to protect themselves and one another through practising safer sex. There is no "victim" here so none of Lorin's arguments are appropriate.
Victims Rights
I would just like to state that in my opinion everybody has the right to know their partner's HIV status before sex and it is the obligation of the infected person to tell everyone they have sex with. If the infected person deliberately withholds that information they are committing sexual assault. If that assault leads to a person's death then it is murder. Regardless of when the death actually takes place. Also, I want to add that the victim should not be under any obligation to ask or even wear a condom because that would imply that it is somehow the victims responsibility to avoid being assaulted. Which is WRONG!

To illustrate my point: If I am crossing the street at a cross walk and a car speeds down the road at 40km above the speed limit and hits me. Is it my fault? I could have looked a few more times, I could have done a lot of things... but I didn't have to, I wasn't breaking the law. The fault is on the driver and his callous, depraved and utterly SELFISH disregard for the safety of other people. It's the same in cases like this. If a person with HIV DELIBERATELY withholds their status from their partner then that person is committing a callous, depravedly indifferent, selfish act with absolutely no regard for the life of the person he/she is assaulting. "Right to privacy", "Fear of social stigma for having HIV" Those are not good enough reasons to deliberately withhold your status and satisfy yourself anyway at the expense of another person's saftey/LIFE.
Disclosure
Disclosing and recording such in itself becomes a major issue, but add into that disclosing when a person may have been drinking. How would such a disclosure stand up in front of the courts I wonder?
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