opinion & features

World AIDS Day is often a time of reflection on the many lives lost to the disease that has been challenging researchers and scientists for three decades. Much progress has been made in treatments and more is being made but there is no cure on the horizon. What can be said is that it is no longer a death sentence. It’s a treatable, manageable disease. 

Many people are continuing to live with HIV and maintain productive, meaningful lives, provided they adhere to their pharmacological regimen and seek help for life-threatening addictions, such as alcoholism or to illegal drugs. Fifteen years ago, an average ife expectancy for people with HIV was seven years or less. Today it is not uncommon for people to live 20 or 30 years post diagnosis. And it may not be HIV or AIDS that finally carries them off. 

“In a country like Canada, where antiretroviral drugs are available to everyone at no charge, the likelihood anyone is going to die over the next 25 years from HIV is extremely remote,” says Professor Mark Wainberg, director of the McGill AIDS Centre in Montreal. But even as research vastly improves health and life expectancy, there are other challenges. One is the law, where confusion – and often outright prejudice – abounds.

This past summer, an Ottawa judge threw out four attempted murder charges against Steven Boone, 30, accused of knowingly transmitting HIV, saying it is no longer an “automatic death sentence”, a position the Crown prosecutor put forward. Ontario Court Justice David Wake dismissed the attempted murder charges, noting that death from HIV is a “possible consequence” but no longer an “inevitable consequence or even a probable consequence” of contracting the virus. 

But in November, another judge reinstated the attempted murder charges. The earlier ruling was based on the fact that HIV is no longer inevitably fatal. That decision was flawed, apparently, because it wrongly weighed medical evidence that should have been dealt with at trial, according to Justice Albert Roy of the Ontario Supreme Court, who found there was sufficient evidence to merit a trial on attempted murder, which requires proof of intent to kill, and carries a maximum sentence of 14 years.

This is one of the few times in Canada an accused would be tried for attempted murder — rather than aggravated assault or aggravated sexual assault — for failing to inform sexual partners of HIV-positive status. With the allegation of intent to kill, Boone’s case recalls that of Johnson Aziga, who in 2009 became the first person convicted of first-degree murder in Canada for failing to disclose his HIV-positive status to two women, who later died of AIDS-related cancers.

Boone faces two dozen charges relating to unprotected sexual contact with eight people, including administering a noxious substance and violating the terms of his probation, plus one count of possessing child pornography. But the primary legal problem, soon due to be reviewed by the Supreme Court of Canada in two unrelated cases, is whether sex with a person who has HIV involves a significant risk of serious bodily harm.

The Supreme Court last reviewed the law in the case of Henry Gerard Cuerrier. That precedent holds that failing to inform sexual partners of one’s HIV-positive status, regardless of whether infection occurs, involves a type of fraud and amounts to aggravated assault. Other cases have further complicated the issue, showing the law is clearly behind the times with respect to medical advances and HIV exposure.

For example, in 2005, a judge instructed a British Columbia jury an accused had no duty to disclose his HIV-positive status if he used a condom at all times. In two other cases, to be jointly appealed at the Supreme Court, the HIV viral load of the accused was so low the risk of transmission was dramatically reduced and did not constitute a “significant risk of serious bodily harm” under the law. Boone’s case is clearly overkill because the charges go beyond aggravated assault to attempted murder, which requires the intent to kill.

AIDS advocates welcomed the quashing of the four attempted murder charges as a victory for common sense and compassion. The problem is, Justice Roy has now ruled that the job of the preliminary hearing judge is not to determine what the evidence means. Rather, it is to determine whether there is enough evidence that a properly instructed jury could reasonably return a guilty verdict. By deciding no reasonable jury could convict on attempted murder in this case the first judge went too far, Justice Roy ruled. A date for a new trial has not been set.

Most reasonable people would agree that people with an HIV diagnosis should practise safe sex, using condoms. Deliberately having unprotected sex with a non-HIV partner and not telling them – or lying to them – is still a severe risk and society should discourage it.  Some might even argue that HIV-positive people, already subject to stigma and social rejection, should always disclose their status, whether having protected sex or not, but that might well mean – given fear, ignorance and prejudice on this subject – that they are condemned to a lifetime of celibacy.

Twenty years ago, no Crown prosecutor charged any person with HIV or AIDS with murder because no one had forseen a problem. The Crown finally saw HIV did have a social impact but by then medical advances had ruled out the immediate death problem.  So far, more than 80 people, mostly men, have been charged in Canada with criminal offences for exposing sexual partners to HIV.

The Supreme Court of Canada provided the legal basis in a 1998 ruling that someone who does not disclose he or she has HIV does not have their partner’s consent, making the sexual encounter an assault. If you take reasonable precautions such as wearing a condom then you will likely avoid such charges. 

Now consider the case of Johnson Aziga, the first person in Canada to be convicted of murder for spreading HIV. In 2009, a jury found Aziga guilty of two counts of first-degree murder for having unprotected sex without telling partners he was HIV-positive. Some of his victims later died of AIDS-related cancers. Aziga had tested positive for HIV in 1996 and was charged in 2003. There is no question that Aziga was totally and criminally irresponsible and society does have to send out a message to others for such wanton stupidity.

Criminalizing such behavior does bother many professionals. Ottawa gay rights activist Jeremy Dias says police services should not be trespassing into the health-care field. As he recently told the National Post: “What we have learned from other countries that have criminalized HIV is people don’t get tested. The majority of infections in Canada come from people who are untested. We need to get more people tested.” 

Professor Wainberg says it’s morally reprehensible for someone who is HIV-positive to knowingly have unprotected sex, but criminalizing it may cause more harm than good. Ignorance may not be a defence in law but if you don’t know you are positive and don’t ever get tested it seems like a recipe for spreading the disease. The real solution is education and more mass testing, not less. Says Wainberg: “We lose more than we gain by making HIV a crime. In rare instances, we gain a kind of revenge, some satisfaction as a society that we have used the criminal proceedings to incarcerate someone who engages in reprehensible behaviour.”

The Criminal Code does allow for charges of aggravated sexual assault to be laid against someone who is HIV-positive and deliberately has unprotected sex without informing their partner. The key word here is deliberate. If you don’t get tested and don’t know your status, yet have unprotected sex and pass on the virus you didn’t know you were carrying, can a prosecution succeed since there can be no intent due to your ignorance of status? 

There are also major privacy issues around health records and confidentiality. Despite those, Edmonton police recently took the unusual step of getting a court order to release the name and photo of a 17-year-old girl they suspected of having sex with a number of partners without revealing her HIV status. Police said they got court permission to warn the public about the teenager, alleging she posed a significant risk to the community. Police say their sexual assault detectives began an investigation after two complainants came forward alleging she had unprotected sex with them.

We are on thin ice here, with a real conflict looming between privacy rights and societal rights to protection from dangerous people – if indeed the named woman is dangerous or even HIV-positive. Even if she turned out to be HIV-negative the damage is already done and there is unfortunately the smell of a witch hunt about this case.

What is clear is that society is confused about its attitude toward people with a serious but treatable disease. Too many moral judgments are made by people who operate from fear and ignorance. Some people have HIV, after all, because they were born to infected mothers. Given that our prisons already have a higher than average rate of HIV infection, often due to HIV being spread by drug use, does it really serve any purpose to imprison people with the disease? Won’t that just add to the problem? In short, the law is a confusing, bewildering mess. 

Last year the Ontario Working Group on Criminal Law & HIV Exposure launched the Campaign for Ontario Guidelines for Criminal Prosecutions of HIV Non-disclosure.  The group called on Ontario to develop guidelines for handling cases involving allegations of non-disclosure of HIV status. After wide consultations this group concluded that:

HIV non-disclosure cases are complex – HIV is a chronic manageable infection, not a death sentence, and HIV is not easy to transmit

People living with HIV/AIDS face significant challenges, including social marginalization, stigma and discrimination 

Crown prosecutors should act with caution and restraint in HIV non-disclosure cases – to which we can only add: Amen.

– Peter Carlyle-Gordge is a Winnipeg-based freelance writer.