Canada: Ontario paper reflects on the impact of recent prosecutions

A surprisingly balanced piece of reporting from the London (Ontario) Free Press, regarding recent prosecutions for HIV exposure or transmission, appeared on Saturday.

Five local cases are highlighted:

• Edward Kelly, who, in 2003, was convicted of aggravated sexual assault (HIV exposure) because he failed to disclose his HIV status to his female sexual partners. After serving almost three years in prison, he was charged again for the same offence with a different woman. His case is due in court tomorrow.
• Tendai Mazambani, who was charged with four counts of aggravated sexual assault in October 2006. A preliminary hearing is due soon in an Ontario Court.
• Mark Hinton, whose aggravated sexual assault charge was dismissed last week.
• Ryan Handy, who was found guilty of aggravated sexual assault, and is due to be sentenced on March 27th.
• Owen Antoine, who was found guilty of aggravated sexual assault and criminal negligence causing bodily harm last month.
  

Fair play or morality play?
There's a debate brewing over whether the criminal courts are the proper jurisdiction for cases in which people have been infected with HIV by a sexual partner who knowingly didn't disclose the condition, writes Free Press justice reporter Jane Sims

Barry Mann has been HIV-positive for 19 years and practises safe sex.

He learned to take precautions after watching many friends die of AIDS in the 1980s.

Now, at 53, he's scared -- not of infecting his sexual partners with the virus that causes AIDS, but of being accused of infecting them -- and going to jail.

"To date, I haven't had somebody who's out to get me," he says.

A recent criminal case in London -- one of four HIV-related cases before the courts here and one in St. Thomas -- has left Mann with an uneasy feeling the criminal courts are judging HIV-related cases on the basis of morality, not public protection.

Ryan Handy, 25, a young gay man with mental illness, was convicted last month of aggravated sexual assault. He testified that at one time he believed he had sweated out his HIV and was the Messiah.

After two unprotected sexual encounters with a 53-year-old man he met in an Internet chat room, Handy testified, he had a moment of clarity, realized he had the virus and immediately contacted the man and told him he was HIV-positive. His lack of disclosure of his HIV status required by law could send Handy to prison when he's sentenced next month.

There is a debate brewing -- and an opinion in the gay community -- that the victim in the case, who has remained virus-free, should have taken care of his own sexual health while engaging in high-risk sexual behaviour and not be accusing a young, vulnerable man of a criminal act.

Mann says the courts should stay out of people's bedrooms when it comes to disclosing HIV.

"It should not be tying up the courts," he says. "It's a health issue, not a criminal issue."

Breakthroughs in treatment have allowed Mann and many other HIV-positive people to live with the virus for decades. He's still legally obligated to tell his sexual partners he has the virus, something he admits doesn't always happen because he uses protection.

"I am constantly floored by how many people are willing to have sex with me without taking precautions. I'm the one who has to stop them," he says. "Society is still very nonchalant about this."

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It's been 15 years since the death of Charles Ssenyonga, a man with a virulent strain of AIDS who was being tried for knowingly spreading the virus to several women -- some of whom died -- in London. He died just weeks before Superior Court Justice Dougald McDermid was to deliver a decision.

Half a generation later, there are suggestions it's time for HIV to be taken out of the Criminal Code.

There have only been 29 HIV-related cases in Canada and six are before the courts. It appears the majority on trial now are in the London area. All the current London cases involve men -- two straight and two gay -- said not to have disclosed their HIV status to sexual partners.

In the cases of people maliciously spreading the virus, there's a unified opinion inside and outside the criminal justice system those cases need to be tried criminally.

But in the Handy case, and in the Mark Hinton case that was dismissed this week, the facts involved allegations of consensual sex between people engaged in high risk activities. (Hinton, 41, who has been HIV-positive for 22 years, faced a charge of attempted aggravated sexual assault. A judge dismissed the charge).

Those cases, some activists say, could have best been handled by public health -- not the criminal justice system that they say seems to judge morality and not promote public protection.

"If you take the HIV out of there, it's still a crime," says Peter Hayes, executive director of the AIDS Committee of London, about HIV cases involving sexual assault and intentional spread of the disease.

But, he says, "when we make it about HIV-only, the law can be misinterpreted, or situations are not being addressed in the best interests of public health."

Hayes says cases like Handy's and others go to the most intimate piece of a relationship and solidify the stigma attached to disease that has gone from a death sentence to an often controllable condition.

Prosecution of such cases leaves the community with a false sense of security, he says. The reality, he says, is that the vast majority of HIV-positive people disclose their status not just to their partners, but to family, employers, doctors and anyone they believe could be at risk.

The majority of new transmissions are in the straight community and come from people who haven't been tested.

Brian Lester, director of prevention for the agency, says the best strategy to stop the transmission of the virus is to encourage testing and help people make informed decisions about their results. But criminalization "challenges that, he says.

"People don't want to deal with what could be a reality in their life," he says, and won't get the test. "A fully informed individual making a choice not to use a condom is putting themselves at risk."

Hayes says he's concerned there's not enough education in, and outside of, the criminal justice system about the virus and the disease.

He points to a 2003 study across Canada that showed people were less informed about HIV and AIDS than ever, with beliefs that only gay men and drug users and people living in Africa were at risk.

"Issues surrounding sex and drugs are being talked in a way that's not about health but more about morality," he says.

Lester says the health system has the tools to handle the cases.

Already, public health can issue orders that outline rules an HIV-positive person must follow, such as using condoms in all sexual encounters and not sharing needles. It also has the power to detain people, Lester says.

He adds the justice system adds to the stigma when prosecuting these cases as aggravated sexual assaults.

"I don't understand the term sexual assault in consensual sex," he says.

- - -

Even the failure to disclose during pillow talk needs to be prosecuted, some in legal circles say.

A London lawyer who successfully defended Hinton agrees HIV cases should be judged in criminal courts.

"It should absolutely be an offence," says Ron Ellis. "Because you can't consent to having sexual relations with someone if the act is so manifestly different than what you expected it was going to be.

"HIV changes the very nature and character of the sex you are consenting to such a degree."

HIV still remains potentially life-threatening, he says, and although not necessarily a death sentence, it requires a lifetime of treatment and medications. It restricts freedoms and choice of sexual partners.

"It's got to be worth something," Ellis says.

If Hinton had been found guilty, Ellis notes, he would have faced a prison sentence of three to six years.

"I think its a crime to put somebody at risk," Ellis says. "The law is you've got to disclose and it's a good law. It's there for the health and safety of the community."

Dr. Bryna Warshawsky, associate medical officer of health for the Middlesex-London Health Unit, says the spread of the virus is "certainly a health issue," and adds it's "very rare and unusual for people with HIV not to be responsible."

- - -

The Ryan Handy case has become a rallying point for some in the gay community -- a group of supporters was with him at his sentencing hearing last month.

Handy can be seen in a three-part interview on the Xtra magazine website denouncing what he calls unfair treatment by the criminal courts.

An editorial by managing editor Matt Mills in the gay magazine criticizing the victim in December prompted the victim in the Handy case to not submit a victim impact statement.

Mills says he thinks "it's really important that folks who are in the position he is in have the opportunity to tell their stories." He says his publication believes some men, particularly gay men, get "the short end of the stick on this legislation and these sentencing guidelines.

"We believe the criminal justice system is singularly unqualified and ill-equipped to handle this issue."

The Supreme Court of Canada, Mills says, in its decision that HIV-positive people have a duty to disclose their illness before having unprotected sex, "has put us in a position we are at each other's throat and suspicious of each other when it is a public health matter."

Mann, who also recently completed treatment for Hepatitis C, agrees.

"Nobody forced their pants down. Nobody forced them to have sex. Everybody's responsibility is to protect themselves."

He fears that whether he discloses his health status or not in the bedroom becomes hearsay in a courtroom.

"I can disclose to somebody and they can turn around and say I didn't disclose," he says, adding he fears the issue could evolve into civil cases in which former lovers are pitted against each other.

"We're already dealing with living with this disease and the stigma attached. We don't need this on top of it."

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HIV AND THE LAW

The Supreme Court of Canada ruled in 1998 that:

- HIV-positive people must disclose their status to sexual partners before having sex without a condom or sharing sex toys.

- They must tell people with whom they share drug equipment before sharing the equipment.

- Non-disclosure could lead to an order by a local public health unit that would outline rules that must be followed and could include using a condom in all sexual encounters or no sharing of needles.

- Criminal Code charges can be laid by a sexual- or needle-sharing partner. The charges range from common nuisance to aggravated sexual assault. Charges can be laid even if the partner is not infected.

CASES BEFORE THE COURTS

- Edward Kelly, 31, was charged with aggravated sexual assault in May 2006, after a woman told police she had sex with a man who didn't tell her he was HIV-positive. He is next in Superior Court on Feb. 12.

- Tendai Mazambani, 33, was charged with four counts of aggravated sexual assault in October 2006. He is expected to set a date for an Ontario Court preliminary hearing.

- The case against Mark Hinton, 41, was dismissed this week after his complainant admitted HIV status was not a concern to him before engaging in "moderately high risk" sexual activities. Hinton, who didn't get the chance to testify, maintained he never had sex with the man.

- Ryan Handy, 25, a gay man who testified he is mentally ill and believed he sweated out his HIV, is to be sentenced for aggravated sexual assault March 27.

- Owen Antoine, 41, of Aylmer was convicted by a jury in St. Thomas this month of four charges, including aggravated sexual assault and criminal negligence causing bodily harm. Antoine was diagnosed HIV-positive in December 2004. The victim, a 29-year-old woman, testified she was at a bar with Antoine in April 2006 and has no memory after she drank a shooter he said he took to her. She woke up hours later in bed with him and he told her they had unprotected sex. She has since tested positive for HIV. Antoine did not tell her he had the virus.