In New Zealand, we're debating the criminality of deliberate HIV transmission due to unsafe sex. In Canada, courts routinely punish HIV+ people who have sex... even if it's protected sex with a condom?! Xtra Canada has been covering this story since the outset. What it calls 'the criminalisation of HIV' began as charges of aggravated assault and public nuisance, but has now increased in magnitude to first degree 'murder' and 'attempted murder' charges: “Canada was one of the first countries to start laying charges with respect to HIV exposure or transmission,” says Alison Symington, senior policy analyst with the Canadian HIV/AIDS Legal Network. “It was the first Supreme Court in the world that had ever considered the issue.” In 1998, this alarming judicial trend began with R v Cuerrier. Much like the Peter Mwai case here, it was the case of a heterosexual man charged with assault for exposing a partner to HIV. In its judgmentm Canada's Supreme Court said that if there’s a significant risk of serious bodily harm, then the HIV-positive person must disclose his or her status to sexual partners. Since Cuerrier, the situation has worsened. Charges have increased in magnitude to aggravated sexual assault, which is a more serious charge that can land a person on a sex offender registry alongside rapists and pedopholes. Successful prosecution of aggravated sexual assault charges also paved the way for murder and attempted murder charges being laid across Canada. According to Glenn Betteridge, a legal and policy analyst who has done work with the Ontario HIV Treatment Network, the recent Aziga case was particularly worrying: “Section 231 of [the Canadian] Criminal Code says that [when] somebody commits a crime like aggravated assault or aggravated sexual assault, and the person they are alleged to have assaulted dies, the charges will automatically be elevated to first degree murder,” Betteridge says. “In those circumstances, there is no prosecutorial discretion so, in effect, it wasn’t police or the Crown Prosecutor that charged Mr Aziga with murder. It was by operation of the Criminal Code, through section 231.” Johnson Aziga's particular case is rare, in that two complainants died, but the inevitability of murder charges isn’t so ascertainable according to Isabel Grant, a law professor at the University of British Columbia. She recently authored a Dalhousie University law journal article on the criminalization of HIV. “That’s not actually correct,” says Grant. “There [are] two steps to any murder conviction. The first step is you have to show that it’s murder. The second step says that, if it’s during an aggravated sexual assault and you’ve committed murder, then it’s first degree murder. You don’t jump straight to section 231 without showing that there’s [been] a murder. And in order to prove murder, you have to show that the accused meant to cause death, which I don’t think is the allegation in Aziga.” As with the relevant sections of the New Zealand Crimes Act 1961, proving murder is a matter of conscious intent. The defendant must have known that her or his actions are likely to cause death. In the majority of HIV-related cases, the defendant did not set out to deliberately kill their negative partner. “[According to the Canadian Supreme Court, it is the case that] in order to prove murder, the accused has to have some actual awareness in his mind at the time that what he’s doing is likely to cause death,” Grant says. Grant argues that: “I don’t think it was a foregone conclusion that they had to charge Aziga with murder. There have been other cases where complainants have died and murder has not been charged.” She goes on to argue that, according to the Canadian Supreme Court, as "murder is our most serious crime...we can’t convict someone of murder unless they have that actual mental awareness, because the stigma and the punishment involved for murder are so serious.” Grant concluded that given the existence of antiretroviral drugs, even if someone did test HIV+, they would not die immediately from HIV exposure, so in her view, it was a juridicial leap from the possible existence of negligence on the part of an HIV+ defendant to laying charges of outright murder. Unlike New Zealand case law, it may even be the case that using a condom will not keep you out of court, nor would ignorance about one's HIV status. Xtra cites a recent Winnipeg case, R v Mabior. In that case, the sentencing judge concluded that condom use did not mitigate "blame". As a result, they sentenced Mabior to fourteen years in prison. It is currently under appeal. This may seem ridiculous, but the presiding judge held that while he used a condom, his viral load 'needed' to have been 'undetectable' to avoid conviction. However, the judge argued that he was guilty as he did have a measurable viral load, despite the fact that he took reasonable precautions to avoid HIV transmission, according to Isabel Grant says. She acknowledged that this “...was kind of a weird decision,” Grant says. However, Mabior is a potentially important issue, because it deals with condom use, safe sex and HIV virulence. At the moment however, until it is either upheld or struck down, R v Mabior highlights the difficulty of current HIV transmission criminalisation case law in Canada. In the original Cuerrier case, unprotected vaginal sex was the issue at stake. The courts need to clarify and provide guidelines on what should be a 'significant risk of bodily harm' in this context, which would exclude conscientious use of condoms. What about HIV status disclosure in this context? Oddly enough, it may be the case that this could lead to unsafe sex through the practice of 'sero-sorting' even amongst mutually HIV+ partners,and in any case, what about those who are HIV+ and haven't been tested? Or, for that matter, responsible sexual behaviour amongst HIV- gay men, who should be insisting on condom use. The debate continues... Recommended: Dale Smith: "Canada's record of criminalisation creep" Xtra Canada: 18.08.09 Craig Young - 23rd August 2009