An interesting editorial appeared today in Uganda’s New Vision about the use of the criminal law for HIV exposure or transmission in the aftermath of the Johnson Aziga verdict. Mr Aziga was born in Uganda, which is currently debating its own HIV-specific criminal transmission laws.

Self-protection, not law will curb HIV infection

Publication date: Tuesday, 14th April, 2009

A Ugandan living in Canada has been found guilty of murdering his two sexual partners by infecting them with HIV, the virus that causes AIDS.

Johnson Aziga was convicted of first-degree murder of two women and aggravated sexual assault of 11 others. He was sentenced to life imprisonment. In Uganda, the intentional spread of HIV/AIDS is not covered by the Penal Code but the HIV/AIDS Prevention and Control Bill, now in Parliament, which seeks to make it an offence.

Alison Symington of the Canadian Legal Network, says the conviction is troubling because a sexually-transmitted infection is equated to murder.

The case of Aziga raises several legal, ethical and public health issues. Should diseases be legally classified? The Canadian prosecutors say the two women were murdered because Aziga infected them with a ‘slow-acting poison’ since they did not know he had HIV. Would this ‘slow poison’ have been less lethal had the women known Aziga’s health status? What was the women’s HIV status before they had sex with Aziga? The Supreme Court of Canada in 2005 ruled that one partner cannot give consent for sexual relations if the other fails to disclose an HIV infection.

Depending on partners’ ‘disclosure’ of their HIV status is very risky and should not be encouraged. Aziga’s case proves that AIDS is incurable and, therefore, everybody must take care of themselves. Aziga did not rape the women he infected.

They consented to unprotected sex with a person whose HIV status they did not know when they could have negotiated safe sex or declined his advances altogether. It was not only Aziga who was reckless, but the women as well.

By having unprotected sex with multiple partners, Aziga courted the spectre of contracting drug-resistant HIV and recycling it through reinfection. The only sure way of curbing HIV infection is not through legislation but aggressive sensitisation about self-protection and behaviour change since there is no known cure of HIV to date.

This weekend, some of Canada’s major newspapers ran editorials and commentaries about the broader issue of HIV disclosure prior to sex that may risk transmission.

The most enlightened, entitled ‘HIV/AIDS is just one risk of sexual activity’ by Iain Hunter of The Times Colonist (BC capital, Victoria’s, local paper), argues that criminal prosecutions divert attention from the fact that everyone needs to practice safer sex and not trust their partners with such life-changing decisions. He concludes:

But the law does seem to put an extraordinary burden entirely on one of two people engaged in a pursuit that both of them know is risky and always has been.

The criminal law isn’t sophisticated enough to take account of human passion. It isn’t often consulted while clothing drops to the floor.

It doesn’t recognize that we’re all, now, living with HIV/AIDS.

These days, none of us should believe everything we’re told.

Another remarkably enlightened editorial came from The National Post, published last Wednesday after I had written my last posting on the subject. Entitled A fraudster, not a murderer, Barbara Kay argued that although Mr Aziga was morally “despicable” he should not have been charged with, nor found guilty of, murder.

Will all Canadian women sleep easier knowing Aziga no longer prowls the streets in search of prey? No, because “society” was never in danger from Aziga or the afore-mentioned other miscreants. None were rapists: Their victims were women who paid a disproportionately high price for their naivete.

[….]

Aziga’s moral crime was fraud with depraved indifference to human life, not murder, for which there must be intent. Two of Aziga’s 11 relevant sexual partners died of AIDS-related cancers. But four emerged virus-free. People with murder on their minds do not choose to play Russian roulette with their targets.

The sexual aspect is a red herring in this case. The crime is, or should be, knowingly passing a life-threatening infection to an innocent person by any means. The vehicle -penis, needle, amniotic sac– should be immaterial.

Let the punishment fit the crime, and let all who commit the crime be equally punished.

Others were far less positive, including ‘Guilty as charged’ in The Calgary Herald

The conviction should send a strong message to HIV-infected people that playing Russian roulette with a partner’s sexual health could end very badly and that the person carrying the virus will be held responsible if and when it does. This is a public-health issue and that means the greater good of the public comes before individual considerations.

and an editorial in The Milton Canadian Champion, which concluded: “The end result of what Aziga did was no different than if he’d shot these women.”

However, potentially most damaging was Margaret Wente’s article in Saturday’s Globe & Mail (which describes itself as “Canada’s National Newspaper”) that focused exclusively on gay men, even though the vast majority of prosecutions are a result of heterosexual sex.

The article cleverly pulls apart anti-criminalisation arguments by being selective about what we actually say; choosing to quote the most radical or (at least legally) lesser informed anti-prosecution advocates; and finding gay men (including doctors and men living with HIV) who support prosections to quote in the piece.

Peter Troyer, a 37-year-old Toronto man who is himself HIV-positive, has no doubt about where he stands. “It is absolutely reasonable to have a law,” he says. “He exposed people to a potentially dangerous virus without their consent. I wouldn’t want to live in a society that didn’t punish this behaviour at the highest level.”

[…]

Brian Cornelson, a primary care physician at St. Michael’s Hospital in Toronto, has been treating HIV-AIDS patients for 17 years. “What I tell my patients is that people who are positive have 100-per-cent responsibility to not infect others, and people who are negative have 100-per-cent responsibility not to infect themselves. If everybody took that stance, we wouldn’t have any HIV transmission.”

He too believes the position of the activist establishment is flat-out irresponsible. “They’ve put the stigmatization issue in front of the transmission issue,” he says. “For me, as a gay man and a physician, this is particularly dismaying.”

[…]

But the idea of giving anyone a pass because they’re victims makes many people deeply angry. Michael Leshner is one of them. Mr. Leshner, a long-time activist, and his partner were the first gay couple in Canada to be legally married. “The ads give people with HIV-AIDS a moral pass to infect,” he says. “Whenever you define a person or a group as victims, the danger is that you excuse away their conduct. It’s as if they have no responsibility to themselves or others.”

The Globe & Mail had previously published an extremely damning editorial which misrepresented the Canadian HIV/AIDS Legal Network’s stance on prosecutions (and on the Aziga case, in particular). They submitted an op-ed on the subject which was declined “because of limited space”. I have lots of space, and so I’m publishing it here, to at least try to balance some of the harm done by writers like Wente.

More light, less heat: it’s time for rational discussion and guidelines about criminal prosecutions for not disclosing HIV

Recently, a Hamilton man with HIV was convicted of first-degree murder. Two women, with whom he had unprotected sex without disclosing his HIV status, were infected; the prosecution argued their subsequent deaths from cancer were linked to their HIV infection.

There is a well-known adage that “bad facts make bad law” — and, seemingly, for simplistic reasoning. In its editorial on the Hamilton case (“Murder, not policy”, April 7), The Globe and Mail fell prey, as did many commentators, to this syndrome, letting the discomfiting facts of this particular proceeding obscure a careful exploration of when it might, and might not, be legitimate to prosecute someone for not disclosing HIV-positive status. In the interests of a rational debate of this difficult issue, we offer the following observations.

It has been suggested that questioning the expansive use of the criminal law, in response to individual prosecutions for HIV exposure amounts to excusing the behaviour of a particular accused. By this same logic, anyone who questions how Canada’s anti-terrorism legislation functions is condoning a given act of terrorism. Both suggestions are fatuous and do a disservice by foreclosing reasoned discussion of how the law should be serving society.

It is similarly intellectually sloppy, but rhetorically convenient, to equate not disclosing HIV status with rape, simply because the same charge is laid as a result of how aggravated sexual assault is currently defined in the Criminal Code. But unprotected sexual intercourse between two autonomous, willing adults, which often carries risks, is dramatically different than violent or coerced sex, which inherently denies the autonomy of one of the parties. To simplistically equate the two does nothing to advance an effective response to either violence against women or HIV exposure.

Over the past decade, there has been an increase in both the frequency and severity of charges against individuals with HIV for not disclosing, for various reasons, their status to a sexual partner. Prosecutors have pursued serious assault charges even in circumstances where the risk of HIV transmission, already statistically small in any single sexual encounter, has been lowered further by responsibly practising safer sex. In light of this “criminalization creep,” it is all the more urgent to address legitimate questions about where, as a matter of public policy, we should draw the lines.

In the “heat of the moment,” do legal requirements influence people’s disclosure or risk behaviour? They may, for some people in some circumstances. But there is no clear evidence to support this claim, and some evidence to rebut it. Surely those who would extend the power of the state to jail people for otherwise consensual sex should point to at least some evidence if they argue that criminal prosecutions can function as HIV prevention policy in this way?

Do criminal charges for non-disclosure of HIV-status help or hinder women attempting to protect themselves, in particular women in abusive relationships or who are economically or
socially dependent on male partners? What about women living with HIV in such circumstances? Would criminally prosecuting them for not disclosing their HIV-positive status serve the interests of justice?

What specific sexual acts pose a legally “significant risk” of HIV transmission, the threshold established by the Supreme Court as requiring disclosure? Using condoms, engaging in lower-risk sexual activities such as oral sex and individual factors such as the viral load of the HIV-positive partner, reduce dramatically the possibility of HIV transmission, leading a few courts to find that criminal charges are not appropriate in these circumstances. But this remains an unsettled aspect of the law, inviting police and prosecutors to keep pushing the boundaries of the law outward to criminalize more and more people, even those who act responsibly.

Finally, if the criminal law is to serve its proper function, we ought to be questioning its broader public health impacts. Why do some individuals living with HIV not disclose their status to sexual partners in certain circumstances? Stigma is one very real major factor, despite cavalier dismissals by some commentators. To the extent that widespread media coverage of criminal prosecutions reinforces an image of people with HIV as potential criminals, it exacerbates the stigma surrounding HIV and certainly does harm. Are people more reluctant to be tested (believing ignorance is their friend) and do they withhold information about their risk behaviours from counsellors (as this information could be used against them in a criminal proceeding)? Do we encourage a false sense of security among people who believe themselves to be HIV-negative, who want to believe that a legal requirement of disclosure means they needn’t worry about their partner’s HIV status?

Contrary to what has been suggested in some commentary (including in The Globe and Mail’s editorial), we have not taken a position on whether the man recently convicted in Hamilton should have been charged with murder, nor on his guilt or innocence. What we have consistently advocated for is a reasoned evaluation and policy debate with respect to the broader questions raised by using criminal charges in cases of HIV non-disclosure.

One step would be to develop prosecutorial guidelines to guide individual police officers and prosecutors, including indicating when prosecution is not warranted. No one is suggesting that we forgive and forget behaviour that has caused harm. But the criminal law is “society’s ultimate weapon.” Not only is studying, evaluating and critiquing the application of the criminal law appropriate, it is absolutely necessary to ensure it is used sensibly and fairly.

Alison Symington is senior policy analyst and Richard Elliott is executive director with the Canadian HIV/AIDS Legal Network.

Update: Although the Globe and Mail didn’t publish the above op-ed, they did publish this letter by Eric Mykhalovskiy who is a member of the Ontario Working Group on Criminal Law and HIV Exposure, on April 9th.

HIV legal policy needs debate

ERIC MYKHALOVSKIY

April 9, 2009

The Globe and Mail should support the call for a national dialogue on the criminalization of HIV-nondisclosure (Murder, Not Policy – editorial, April 7). Criminalizing nondisclosure may create the appearance the state is doing something concrete about sexual transmission of HIV. But there are difficult issues at stake, far more complex than those arising out of the Johnson Aziga case.

A few places to start: how to set parameters for a criminal law, given new research showing the possibility of transmitting HIV is dramatically reduced when treatments are used; how to update criminal justice to reflect that HIV is no longer the immediate death sentence it was when the legal obligation to disclose HIV was set; how to make sense of sentences for HIV nondisclosure that have been up to 10 times longer than those for other sexual assault convictions; and, yes, how to consider what the broad and long-term impact of criminalization will be on public-health strategies for HIV prevention.

Canadian Institutes of Health Research New Investigator, York University

Since the guilty verdict in first ever murder trial for sexual HIV transmission, Canada’s media has been filled with editorials, for the most part welcoming Johnson Aziga’s conviction.

For example, Mr Aziga’s local paper, The Hamilton Spectator, whose reporter Barbara Brown covered every day of the trial, led with an editorial today headlined: Aziga verdict serves justice.

More sinister, is The Winnipeg Free Press editorial which used Mr Aziga’s conviction as thinly-veiled racist commentary, arguging that African migrants with infectious diseases have no place in Canada, in today’s editorial entitled, Opening doors to disease.

Other papers, such as The Chronicle Herald from Nova Scotia, The Toronto Star and the national Globe and Mail, have picked up on earlier comments from Alison Symington of the Canadian HIV/AIDS Network, who questions a society that has turned a public health issue into one of murder. Right-wing columnist Rose Dimano even managed to be ‘shocked’ in her Toronto Star editorial.

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.

However, there has also been some balanced reporting, notably an article by Wade Hemsworth of The Hamilton Spectator, entitled Should we keep AIDS out of the courts? which featured interviews with myself and Ms Symington alongside that of a retired law professor who was pro-criminalisation. The piece was also summarised today by the Kaiser Network.

Update: April 15th. Also including a link to a website called findingdulcinea.com which includes a very nice summary of the issues, and includes a voting tool asking whether Johnson Aziga is a murderer. After 18 votes, 72% voted yes, 17% voted no, and 11% were unsure.

And I almost missed the best anti-criminalisation piece of them all from Canada’s gay paper, Xtra, featuring excellent quotes from Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Network; Angel Parks, coordinator of the AIDS Committee of Toronto’s Positive Youth Outreach programme; and Barry Adam, a sociologist at the University of Windsor and Ontario HIV Treatment Network.

Finally, I wrote a piece for aidsmap.com published today about the facts of the case, the first few paragraphs I reproduce here.

A Canadian man who is thought to have recklessly transmitted HIV to seven women, two of whom subsequently died, has made legal history by becoming the first person ever to be convicted of first-degree murder for sexual HIV transmission. The case has reignited the criminalisation debate in Canada, which has prosecuted more HIV-positive individuals per capita for sexual HIV exposure or transmission than any other country in the world.

The trial, which lasted six months, concluded last Saturday, when a nine-man, three-woman jury found Johnson Aziga, 52, guilty of two counts of first-degree murder, ten counts of aggravated sexual assault and one of attempted aggravated sexual assault after deliberating for three days.

Read more

Three articles published last week covered the gamut of opinions on Canada’s HIV exposure laws, and the impact they are having.

To begin with the most conservative, an opinion piece by Ken Gallinger in the Toronto Star, entitled HIV is not the common cold, concedes, after being asked provocatively “how it could ever be okay for a person who is HIV-positive to have sexual relations with another person?” that HIV-positive people can have sex “as long as both partners fully understand what they are doing, and take every possible precaution to prevent the spread of the virus.”

Another editorial by Sam VanSchie in the student newspaper, The Martlet, explored the impact of media reporting on the Charles Mzite case in Victoria, BC, and notes that “[p]eople with HIV can have safe, healthy sex lives. They are not criminals, though people like Mzite do much to perpetuate the stigma against them.”

The article also explores the ethics of HIV testing for migrants, and why disclosure is not always possible.

Today, an HIV-positive immigrant like Mzite would have been denied entry into the country. He would not have been allowed to be tested for the virus anonymously like he did in 2001, which allowed him to tell his partner his result was negative without the clinic reporting him to a medical health officer and alerting his partners. Taking away these individual freedoms isn’t addressing the root of why people might hide their HIV-status and continue high-risk behaviour. It’s not easy to tell somebody you have HIV, and it’s not easy to ask.

Finally, Vancouver’s gay paper, Xtra West, interviewed HIV advocate Glenn Betteridge who was in town to discuss the impact of HIV exposure laws on HIV-positive people.

The article highlights that most cases that reach trial are focused on heterosexual transmission, but still warns its gay HIV-positive readers that to avoid legal repercussions when having sex in Canada, they must disclose even if using a condom or having unprotected sex with another HIV-positive person.

Consistently practicing safer sex doesn’t eliminate the need to disclose, either, Betteridge told the Vancouver forum. When it comes to an individual’s obligation under the law in this country, Betteridge bluntly states, “a condom doesn’t cut it.” Though courts in some countries, including Canada, have made judgments based on rates of infection for certain sexual acts, viral load, and the use of condoms, there is to date no definitive legal ruling that practicing safer sex belies the need for open dialogue about HIV status…Betteridge says disclosure can be a factor even between HIV-positive individuals. Although the courts have yet to see such a case, the risks associated with drug-resistant strains of HIV, which can be passed to someone with a currently manageable strain, means disclosure may be required there too.

I do worry enormously about the impact of Canada’s HIV exposure laws. Forcing disclosure every time, even under circumstances when HIV transmission is extremely unlikely, can be a double-edge sword, as a recent Sigma report (from England) discovered.

This year’s CHAPS conference highlighted an important finding from another recent Sigma report, Relative Safety II reported on aidsmap.com that:

Some men reported that they took care to disclose their HIV status to sexual partners. One individual even went so far as to save web logs of internet chat to prove that he had disclosed his HIV status in the event of a criminal complaint being made. However, other men had adopted the opposite strategy, and told the investigators that they were taking additional precautions to conceal their HIV status to protect themselves from the risk of prosecution. This suggested to Dr Dodds that the prosecutions were not increasing the likelihood that HIV-positive individuals would disclose to potential sexual partners.

Since the law in England does not actually mandate disclosure, the impact in Canada may differ, but given conversations I’ve had recently with several thoughtful HIV-positive Canadians, I think not.

A Canadian HIV clinician whose pro-criminalisation views made the front page of the The Guelph Mercury last week has issued a letter of apology and clarification, stating that she is “definitely not ‘pushing for criminal charges’.”

The article, published on February 6th, and written by staff writer, Rob O’Flanagan, claimed that:

A leading HIV/AIDS physician in Guelph says those infected with the disease who recklessly spread it to others should be charged with a criminal offence.

It went on to quote Dr. Anne-Marie Zajdlik – a highly regarded HIV primary care physician who also volunteers at the Tsepong Place of Hope AIDS Clinic in Lesotho, and is a Board member of OHAfrica – as saying:

“If I assume that someone who is HIV positive knows they are, and I assume that they’ve also received the care that’s available in this country, then they have received counselling that tells them how to practise safe sex.

“Someone who knows they are HIV positive, but has not listened to the counselling and continues to live a very disorganized life for whatever reason, and knowingly transmits the virus to someone else, that is a criminal act.”

The article then quotes an anti-criminalisation advocate, who, unfortunately, brings denalism into the argument.

I have skepticism around AIDS in the same way a lot of people have skepticism around cancer,” he said. “Some people get cancer and they die. Some people get cancer and they don’t die. The same thing happens with AIDS. I am not one of these people that think that HIV is like a loaded gun that is going to kill you.”

[…]

But Zajdlik said she believes AIDS is a deadly illness, “and if you know you have it and engage in an act that you know is likely to transmit it, and you don’t tell your partner — giving them the opportunity to protect themselves — that’s a crime,” she said.

“And if you don’t charge someone who has the mindset that, ‘I have HIV and I don’t care, or I have HIV and I will have sex with whoever I want to and I don’t need to tell them,’ then you are putting the community at risk.”

Now, in an email circulated to HIV advocates around Canada, Dr Zajdlik passes on her “regrets and apologies to anyone who is offended by The Guelph Mercury Article on the Criminalization of HIV”.

She goes on to write: “The journalist who wrote the article used quite a bit of licence and gave the article a tone which I take offence to. I am not an expert in this area. I am not knowledgeable on all of the issues associated with this topic and I am the last person on earth who would wish in anyway that those infected with HIV would be marginalized or unjustly penalized. I am definitely not ‘Pushing for criminal charges’.

“I was unwise to speak to this journalist on this topic. I will not engage in further public discussion concerning this issue and I apologize to those who may be confused or offended by the contents of the article and my contribution to it.”

The article comes at a time when prosecutions of HIV-positive people for exposing their sexual partners to virus are taking place on a weekly basis in Canada. The highest profile case is that of Johnson Aziga, whose double first-degree murder trial has been on a two month hiatus whilst his defence team prepare their evidence, and whose trial has received a great deal of publicity.

However, advocates are fighting back, including the recently-formed Ontario Working Group on Criminal Law and HIV Exposure. Canada’s national gay newspaper, Xtra, has also launched a campaign to condem the criminalisation of HIV – the campaign’s Facebook page currently has almost 250 members.