Man found guilty of murder for not disclosing HIV status
CRIMINALIZATION OF HIV / Critics argue conviction will hamper prevention
Xtra.ca staff / National / Sunday, April 05, 2009
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(Ken Bosem illustration)
A Hamilton man accused of failing to disclose his HIV-positive status before having unprotected sex has been found guilty of first-degree murder.

Johnson Aziga has been been convicted on two counts of first-degree murder, 10 counts of aggravated sexual assault, and one count of attempted aggravated sexual assault, reports the Globe and Mail.

Seven of the women became infected, two died of AIDS-related cancers and four were exposed but tested negative.

Aziga is the first person in Canada to be charged with murder for HIV nondisclosure. Activists against the criminalization of HIV warned that a conviction would only perpetuate stigma and hamper prevention efforts.

In a Jan 2009 analysis for Xtra, Sky Gilbert wrote that everyone has a responsibility for their own sexual health.

“Safer sex is about the liberating notion that all people — male and female, top and bottom — are either responsible to protect themselves by insisting on safer sex or to assume the risk that they may become HIV-positive if they don’t," he wrote.

Activists also argued that the threat of criminal and social sanctions against people living with HIV acts as a disincentive for everyone to get tested and treated for HIV. They say it also encourages a state of denial in those who may be carrying the virus, further complicating HIV-prevention efforts.

Aziga is to be sentenced on May 7.

Read more about the Aziga case and the criminalization of HIV:


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Reader Comments


 
Good
I recognize that the issue of disclosure is a complex and challenging issue. That said, I am concerned that Xtra or anyone could consider the actions of this man permissible. The basis for the severity of the conviction extends beyond non-disclosure. He also did not use a condom, and this resulted in the deaths of two women. What is the justification for him not undertaking the simple act of wearing a condom to protect his partners? There is none, and therefore, I fully support this verdict as an HIV+ man myself.
John Doe, Toronto Ontario
04/05/09 7:31 PM EST
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Intent
I'm not a big fan of the current legal definition of murder, which seems to include a great number of things that aren't murder (such as being present at a crime where someone dies at the hands of some third party). In this case, which I have not been following, did the crown prove that the man had the intent to kill his partners? And now that HIV/AIDS is seemingly treatable as a chronic illness, how can infecting someone with HIV be said to be murder rather than something else? It opens up a can of worms. If I have a nasty flu and I sneeze in a bus on the way home, infecting a passenger, and they refuse medical treatment due to religious reasons, and then they die, did I just murder them? I think it's really stretching the bounds of logic.
Randy, Windsor Ontario
04/05/09 8:37 PM EST
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Bad
'John Doe' how brave of you to state your HIV+ status behind a fake name. As an HIV+ person myself, I find this ruling appalling. Any action that would discourage people from testing is counter-productive in reducing the spread of HIV. Any action that adds more stigma to HIV is counter-productive in allowing any of the 60,000 HIV+ people in this country to live full productive lives without the need to hide behind a fake name. Should people disclose 100% of the time? YES absolutely, but lets not forget a person can only disclose if they test. If this ruling results in 1 person not testing who happens to be HIV+ and they pass the virus onto another person, I'd not want to be the person to say "So Sad, Too Bad, but we wanted to send a message that people HIV+ will be held accountable not understanding that some people may not test for HIV because of our actions" Yes that's my real name.
Fred Meikle, London ON
04/05/09 8:38 PM EST
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Canada is the first nation and the last.
I am sure that you will note that in the criminalization of HIV that there has been some considerable backpedaling by governments not in the third world who started prosecuting non-disclosing partners. Why? Well, because by an large zero detectable is uninfecttable. Who is next to be prosecuted for non-disclosure in the Aziga case, should we be looking for the woman or women that infected him as accomplices in this heinous crime. Listen these women put themselves at risk and paid a horrible price, but that does not absolve them of taking a stranger home to bed who obviously was in a few beds. Switzerland is already repenting of the crime crying game seeing naturally it is in the end just about sex which always carries all kinds of risk. Anyone who considers this a murder is an internalized stigmatizer and maybe even an internalized homophobe. In the provincial place, we call home it is not surprising, just terribly small town thinking.
Mark, Toronto Ontario
04/06/09 1:27 AM EST
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Response (part 1)
I do not think that every case of non-disclosure warrants legal prosecution. In cases where an HIV+ individual has used protection, I do not think there is a basis for prosecution. In cases where an individual is on HAART and has an undetectable viral load, this may also be the case. I would emphasize, however, that consensus does not exist in the medical literature as to whether said individual is non-infectious. Randy, I understand your perspective. I should qualify my prior comment by saying that I think a first degree murder charge is excessive. I would recommend a second degree murder or manslaughter charge. In these cases, especially in the latter, criminal negligence not intent is the characteristic of the crime. The man need not have intended to kill the women, he simply could have shown a reckless disregard for the lives of others. Your point about HIV/AIDS being a chronic illness is equally relevant. The key here though is that two women died because they were unaware they had HIV. This consequence is relevant to the man's prosecution. The illness is only chronic if one receives treatment, and ostensibly these women would have had they known they had contracted HIV. He did not inform them he had HIV at a later date. Fred, I would ask you to not engage in ad hominem attacks. Please respect my decision to retain anonymity on an online forum. It is disrespectful to suggest that one can only identify one's remarks as coming from the lived experience of being HIV+ if one states their name publicly. I also believe individuals should always disclose, and as I elaborated above, I believe when an individual does not disclose only when they do not take reasonable protection measures should legal prosecution ensue. I understand and empathize with your perspective about reducing HIV stigma and encouraging testing. This is an important issue that the gay community and society at large should be confronting head on.
John Doe, Toronto Ontario
04/06/09 2:06 AM EST
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Response (part 2)
It is tragic that individuals may choose not to test for HIV when they hear about cases such as these. It is imperative that we educate the public as to why, in rare cases, legal prosecution occurs against an HIV+ individual for transmitting HIV. This will distinguish and clarify that society is not hostile toward all HIV+ individuals. This is a unique case wherein an individual wilfully disregarded human life, an act that lead to the deaths of two women. This is not about HIV+ being held accountable. This is about anyone who does anything that wilfully disregards human life, per the Criminal Code, being accountable for their actions. We enjoy our rights and freedoms, including our ability to be gay and proud in a liberal democratic society, because of the law. It protects us just as it should punish a man who deprived two young women of their futures. I do not believe the law and reducing HIV stigma are mutually exclusive.
John Doe, Toronto Ontario
04/06/09 2:07 AM EST
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Profound implications for HIV+ gay men
There is no way this is first degree murder. Criminal negligence (causing death) or some type of lesser wrongful death charges (second degree or involuntary or even voluntary manslaughter) but first degree murder is premeditated to kill with intent. It is very hard to transmit HIV so easily and it certainly doesn't make a very good murder weapon as one may or may not aquire it through exposure and since the late 90's one may live with meds for many decades. This verdict has profound implications for all of us. HIV positive can legally be seen as dangerous as a loaded gun with non-disclosure being equivalent to committing murder if you have sex with another person. And a life in jail for 25 years before there is a chance of parole. Very sobering stuff for those unlucky enough to be HIV positive. Aziga was straight and slept with women knowing his status but not telling them. Two eventually died. This is very very wrong and he should be punished. But first degree murder is a big over-reach and according to one of the lawyers I spoke with was probably meant to get a plea bargain which the Aziga lawyers didn't go for. The jury went with emotion (sympathy for the victims) and bad science (nothing actually can prove that HIV is a murder weapon). Some suggest racism (several lawyers have said this online and Sky G in "xtra") and homophobia as part of the motivation of the Crown and the jury. But it really was stupidity and typical over-charging by the police and the Crown. Ironically, Aizga worked at the AG's office as a "research analyst" and the AG paid a good deal of his defence lawyers' considerable fees --alas for doing a very poor job as the charges should have been reduced and the case argued much more effectively. Fortunately the cops and the Crown do not have the resources to go after gays for HIV transmission without dislcosure (hundreds could be charged every weekend in the baths...). Hopefully Aziga will get better lawyers for his appeal.
james Dubro, toronto ontario
04/06/09 8:31 AM EST
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"Those types of women"...excuse me?
Yeah, Mark you're right. "Those women" should have been more careful, taking strangers home to bed...We have all seen "those types" who "put themselves at risk"... Next time they will be more careful.... Oh wait! their dead....These women were raped by Aziga. It's not their fault. It's never the victims fault!!!!! Stop blaming the victims of rape for rape!!! If you have HIV and you don't disclose you are (at the very least) committing aggravated sexual assault.
That gay guy from Edmonton, Edmonton Alberta
04/06/09 9:53 AM EST
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How can Canadians be so far behind?
You've got national health, but it would appear it is matched by national ignorance of Post Exposure Prophylaxis, already the stated state policy in California, Massachusetts and New York. Within 72 hours of exposure one can reduce the probability of HIV infection by over 80% (and that means improve one's "odds" from unprotected sex from 1:100 to 1:800!) by beginning a sequence of HIV medications that can last up to a month. The REAL guilty parties to this incredible Vancouver case are the public health officials who have hidden this treatment since it was "discovered" over 15 years ago, and "proven" with medical professionals 14 years ago, and finally with the "non-professional" general public last year. The travesty is that we are, indeed, all responsible for our own health. But the worse travesty is that you continue to publish the naive presumption that the ONLY way to assure safety is through condoms. Do not be so misguided! The Massachusetts address is this http://www.mass.gov/?pageID=eohhs2terminal&L=6&L0=Home&L1=Provider&L2=Guidelines+and+Resources&L3=Guidelines+for+Clinical+Treatment&L4=Diseases+%26+Conditions&L5=HIV%26%2347;AIDS&sid=Eeohhs2&b=terminalcontent&f=dph_aids_c_pep&csid=Eeohhs2 The US National Library of Medicine - official guidelines are here - http://gateway.nlm.nih.gov/gw/Cmd?GMBookmarkable%26loc=lhc Do your homework. Advocacy takes more than opinions. Sue your public officials for hiding the truth about HIV transmission, and thereby incriminating a naive public. For reference, my "cred" goes back to work with Elaine Noble the first elected queer to any office in history. Activism is not exclusive to the young, but it sure better not be exclusive to the ill-informed, or it'll disappear faster than ever before.
Joe Beckmann, Somerville Massachusetts
04/06/09 10:14 AM EST
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Sorry about that address
Because of our own Massachusetts obscurantism, the state's address for PEP policy is longer than came through on the cut & paste: http://www.mass.gov/?pageID=eohhs2terminal&L=6&L0=Home&L1=Provider&L2=Guidelines+and+Resources&L3=Guidelines+for+Clinical+Treatment&L4=Diseases+%26+Conditions&L5=HIV%26%2347;AIDS&sid=Eeohhs2&b=terminalcontent&f=dph_aids_c_pep&csid=Eeohhs2 You really ought to do a google on "Post Exposure Prophylaxis" to get the larger story - there's plenty there - and, while you're at it, look up "Pre-Exposure Prophylaxis" - since there is no reason to assume the pills work ONLY AFTER exposure. There are clinical trials on what we (in the US at least) call PrEP, so do that google as well. At least when you get mad, have all the information. THEN get mad at those who hide that information in their clinical garb. THEN get mad at their political henchmen. THEN sue them for malpractice, which, I'd guess, is even possible in a provincial health program. Stay mad for sure, but make it count rather than yammer to the converted.
Joe Beckmann, Somerville Massachusetts
04/06/09 10:20 AM EST
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That damned address
Link 'em together, or, more likely, do that google on PEP in Massachusetts. Eventually, you'll get this http://www.massresources.org/pages.cfm?contentID=117&pageID=31&Subpages=yes#pep But ultimately, you'll want this one, linked as a longer feed: http://www.mass.gov/?pageID=eohhs2terminal&L=6&L0=Home&L1=Provider&L2= Guidelines+and+Resources&L3=Guidelines+for+Clinical+Treatment&L4= Diseases+%26+Conditions&L5=HIV%26%2347;AIDS&sid=Eeohhs2&b=terminalcontent&f= dph_aids_c_pep&csid=Eeohhs2
Joe Beckmann, Somerville Massachusetts
04/06/09 10:24 AM EST
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There IS an Internet - USE IT
Google "Post Exposure Prophylaxis," "non-Professional Post Exposure Prophylaxis," "PEP," "nPEP," as well as "Pre-exposure Prophylaxis." They will give you - or any lawyer - all they need to shift the responsibility for transmission to the newly infected, and to their medical caregivers. There are 15 years of clear and un-ambiguous information that PEP works. In other words, and in very hard edged terms, there were no - not one - HIV babies born in New York or Massachusetts in the last two years, BECAUSE caregivers used this inexpensive and common technique to immunize them in and on their way out of the wombs of infected women. There have been NO - not one - infections due to "needle sticks" among medical professionals in Massachusetts, New York , and California in the last ten years - got that TEN YEARS - due to PEP. Yet most professionals, and MOST AIDS SERVICE ORGANIZATIONS stick their heads in the sand and passively fight the old fights about needles and condoms. It is a new fight, fellas, and you're way behind the times.
Joe Beckmann, Somerville Massachusetts
04/06/09 10:57 AM EST
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Not sure how availability of PEP clearly relates..
PEP (the valuable, but expensive and month-long treatment option) is known and available in Canada. I'm not sure how this turned into a discussion of PEP or how PEP changes things from a legal perspective, unless you are suggesting that any person who believes themselves negative would be considered obligated to undergo a month of PEP after unprotected sex with any person whose status was unknown. And that is just not practicable.
Shawn, Toronto ON
04/06/09 11:23 AM EST
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How PEP Relates
It may not directly relate to the discussion of 1st Degree Murder, however as the law stands in Canada currently the obligation is to disclose when their is 'significant risk'. That ('significant risk') is being defined in courtrooms across the country, however the court in that same ruling did state that the proper use of condoms may in effect reduce risk so that disclosure was not required. Consider that for a moment and factor in the rate of condom failure. How should an HIV+ person respond when they have not disclosed, used a condom properly yet it failed. Ideally they would have the knowledge of PEP and inform their partner, but have we created an atmosphere where HIV- people think that HIV+ people will/need to disclose. The law in Canada isn't definitive that disclosure is always required. As for any thoughts on people using PEP on a continual basis as a HIV prevention method I think that's a stretch. We're talking about 28 days of meds. Meds; with in most cases significant side effects. Anyone doubting the zeal of HIV Crime prosecutions should check out this blog that try's to capture such actions around the world http://criminalhivtransmission.blogspot.com/ Does HIV exposure become Attempted Murder, HIV Transmission Conspiracy to Commit Murder?
Fred Meikle, London ON
04/06/09 12:41 PM EST
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PEP and criminalization
I agree with you Fred that PEP is an important strategy for risk mitigation in the context on condom failure. I am just not clear on how it impacts criminalization -- are you saying that it sould make a legal difference if a person did not disclose before sex that ended up being risky, but afterward did disclose and recommended PEP? If that is your point, I would be inclined to agree. I just did not see how Joe's line of commentary related to the Aziga case, where PEP could never have come into play.
Shawn, Toronto ON
04/06/09 2:15 PM EST
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PEP vs PrEP
"As for any thoughts on people using PEP on a continual basis as a HIV prevention method I think that's a stretch." On that topic, here is a consideration of the possibilities surrounding PRE-exposure prophylaxis or PrEP, with a particular focus on serodiscordant couples. I don't focus on the legal questions in it, but I agree that is something worth considering. www.xtra.ca/public/National/Got_PrEP-4272.aspx
Shawn Syms, Toronto ON
04/06/09 2:21 PM EST
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Just and fair
First degree murder convictions in general are very rare in Canada. In this case the first degee murder charge is because of deaths resulting from aggravted sexual assault. According to Canadian law, the test for this is the women were not HIV before having sex with him and would not have consented to unrpotected intercourse had they known he was HIV+. All buddy had to do was: disclose or use a condom. In fact, he pressued some of the women not to use condoms, despite knowing he's HIV. He was already under a public health order regarding his risk taking. In other words, he's one of a handful of peopel in Ontario flagged for their recklessness. Before all the "ZOMG being HIV isn't criminal" people starting shrieking, do you really want to put your lot in with someone like this? Someone who fully knew what HIV was, that exposing others to it could kill them, and who still knowingly--at times aggressively--pursued that risk, resulting in the death of 2 and infection of at least 4 others? As a Canadian I'm proud he was convicted. HIV stigma doesn't justify being a fucking asshole who avoid responsibility because getting his d*ck wet is more important than others' wellness.
JawnBC, Vancouver BC
04/06/09 5:45 PM EST
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Just and fair
First degree murder convictions in general are very rare in Canada. In this case the first degee murder charge is because of deaths resulting from aggravted sexual assault. According to Canadian law, the test for this is the women were not HIV before having sex with him and would not have consented to unrpotected intercourse had they known he was HIV+. All buddy had to do was: disclose or use a condom. In fact, he pressued some of the women not to use condoms, despite knowing he's HIV. He was already under a public health order regarding his risk taking. In other words, he's one of a handful of peopel in Ontario flagged for their recklessness. Before all the "ZOMG being HIV isn't criminal" people starting shrieking, do you really want to put your lot in with someone like this? Someone who fully knew what HIV was, that exposing others to it could kill them, and who still knowingly--at times aggressively--pursued that risk, resulting in the death of 2 and infection of at least 4 others? As a Canadian I'm proud he was convicted. HIV stigma doesn't justify being a fucking asshole who avoid responsibility because getting his d*ck wet is more important than others' wellness.
JawnBC, Vancouver BC
04/06/09 5:45 PM EST
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It's odd to me how you misjudge PEP's politics
First, PEP need not be expensive nor always with side effects - several cocktails are both cheap and mild. There's even some controversy about whether 28 days is too much treatment. Therefore the downside is lots less down. Second, anyone with any doubt about a partner ought know they have access to preventive meds within 72 hours. The virus costs between $200,000 and $600,000 per case, so the cost of preventive treatment is a bargain to health providers as well as to those at risk. Third, PEP seriously changes the nature of "risk." Given that, depending on site, setting and scene, from 25% to 40% of all HIV infections are unknown to those infected, the risk is now pretty grievous for any sex in passing. It is now the responsibility of either party who feels in the least at risk to presume their odds are pretty crappy. If they don't, it's their fault. This means we are all continuously responsible for our own health, and relying on the testimony of virtual strangers is at least foolish, at most self-deceptive. Should one tread were risk occurs, it's not the other party's fault any longer. And it IS the fault of the public health officials that people don't commonly know.
Joe Beckmann, Somerville Massachusetts
04/06/09 6:01 PM EST
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Risk
Joe, you state "Should one tread were risk occurs, it's not the other party's fault any longer." If I shoot a gun into into a street full of people (lets say because I'm hunting and the animal wandered off), and two die, by your logic I shouldn't be held responsible because the people should have been wearing bulletproof vests since they know the street is near a hunting ground. Imagine what society would be like in your world. Gay bashing would be 'okay' because the victim wandered into an area 'he or she knew had bigots in it'.
John Doe, Toronto Ontario
04/06/09 6:17 PM EST
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It is always about getting it wet.
The women were not raped. They had sex without knowing their partner very well, apparently. They took a risk and did not protect themselves. Aziga is an abnormal individual but not a murderer and those women were not murdered. If they had taken up smoking or race car driving and died or pill popping and booze ... they could have died as well. Then there is the questions of race, since the most vigorously prosecuted men in Canada have been black.
Mark, Toronto Ontario
04/06/09 6:21 PM EST
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no more PEP
Joe: it is possible to find PEP in Canada, we are well aware of its efficacy and frankly it looks to me as if you're writing for the sake of seeing your own words. Please, please take your comments elsewhere so that they will have an opportunity to be even slightly relevant. This article is about the recent conviction in relation to Mr. Aziga, not a public forum about HIV prevention.
Adam, Vancouver British Columbia
04/06/09 7:55 PM EST
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