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Tuesday, 24 August 2010

Canada: British Columbia man guilty again following retrial (update)

Update August 24th 2010


Adrian Nduwayo, has been found guilty again of five charges of aggravated sexual assault involving five women, three of whom subsequently tested HIV-positive, following a retrial at the BC Supreme Court.

He was oringally guilty of the same charges, plus one of attempted aggravated sexual assault and one of sexual assault in 2005 and sentenced in 2006 to 15 years in prison.  This time, he was acquitted of those two other charges.

Details of the reasons for the original appeal are in my original post, below.

According to the report in Vancouver's mid-market tabloid, The Province, the retrial hinged on the issue of lack of consent due to non-disclosure.

Justice James Williams said that, although the sexual relations were "ostensibly consensual," that consent was taken away when Nduwayo failed to tell the women that he was HIV positive. "The issue of consent is not as simple as yes or no," Williams said. "It's more complicated than that." In the five cases where Nduwayo was convicted, Williams said he believed that each woman would not have had sex with Nduwayo if they had known about his HIV. He was also satisfied that their lives were endangered by Nduwayo's actions.
In the reports of the original trial, below, Mr Nduwayo testified he always used condoms and didn't need to disclose. The complainants said that he didn't always use condoms. It is unclear whether Justice Williams considered the issue of condom use as reducing the risk of HIV transmission to below Cuerrier's threshold 'significant risk'. If not, there's may well be further confusion regarding condom use and obligations to disclose in Canada that can only be satisfied with the production of police and prosecutorial guidance.

Sentencing submissions will take place on September 10.


Original post June 23rd 2008

An HIV-positive British Columbia man who was found guilty in 2005 on five counts of aggravated sexual assault (for HIV exposure), one of attempted aggravated sexual assault and one of sexual assault, and sentenced in 2006 to 15 years in prison, has won an appeal against his original trial and will be retried.

According to the report in the Bugle-Observer, Adrian Nduwayo's lawyer successfully argued that the jury was not properly instructed to consider each count separately and not to use evidence from one count when deciding guilt on others, compromising his right to a fair trial.

I have also reprinted a couple of articles published at the time of Mr Nduwayo's original guilty verdict and sentencing, for background, below. Interestingly, although three of the complainants subsequently tested HIV-positive, Mr Nduwayo was not tried for criminal HIV transmission - and it's not clear from the reports why that was the case.


Appeal court orders new trial for HIV-positive B.C. man convicted of sex assaults
Wednesday June 18th, 2008
THE CANADIAN PRESS

VANCOUVER - The B.C. Court of Appeal has ordered a new trial for an HIV-positive man who was convicted of sexually assaulting several women for having unprotected sex with them.
Adrian Nduwayo was given a 15-year sentence in 2005 for five counts of aggravated sexual assault, one of attempted aggravated sexual assault and one of sexual assault.
The incidents involved seven different women who said Nduwayo had sex with them without telling them he was HIV-positive and without a condom, while he insisted he did use protection.
But Nduwayo appealed his convictions, arguing that the jury was not properly instructed to consider each count separately and not use evidence from one count when deciding guilt on others.
The court of appeal agreed, saying the trial judge's charge to the jury didn't include adequate cautions on that issue.
The court says the fairness of the trail was compromised and has ordered a new trial.


Jury finds B.C. man guilty of spreading HIV
Wed. Dec. 14 2005

CTV.ca News Staff
An HIV-positive B.C. man was found guilty Tuesday night of committing sex crimes for having unprotected sex with women to whom he did not reveal his condition.
A jury in Westminster, B.C. convicted Adrien Nduwayo, 36, of five counts of aggravated sexual assault, one count of attempted aggravated sexual assault and one count of sexual assault.
"The message this sends I think is when you are HIV-positive you have a positive duty to disclose that fact to any perspective partners that you have," Crown counsel Andrew MacDonald said, minutes after the verdict was released.
He said that all of the women who testified against their former lover showed "tremendous amounts of courage and fortitude."
The charges relate to Nduwayo's failure to disclose his virus and engage in unprotected sex with seven women between 2000 and 2003.
Three of those women now have HIV, the virus that causes AIDS.
During the trial, court heard that Nduwayo carried on affairs, and slept with more than one woman at the same time.
Nduwayo contends he always wore condoms to protect his sexual partners and that he didn't have a legal obligation to disclose his condition to his partners.
But some of his former lovers said they had to insist that he wear them -- and that even then he often did not.
Defence lawyer Paul McMurray said outside the court that Nduwayo's defence was that all of his sexual partners in question were willing partners and that the fact he used a condom was sufficient in law to maintain their consent.
Nduwayo has said he didn't tell some of his lovers that he was HIV-positive because they didn't ask.
Some of them found out about Nduwayo's condition when they saw news reports that the police were looking for him for allegedly spreading the virus, court heard.
"I think we're dealing with an area where there was, and is, some uncertainty," McMurray said outside court.
"Everybody I think accepts that you're supposed to disclose and you're supposed to wear condoms but this falls short of that and that's the difficulty here."
No date has been set for a sentencing hearing.

B.C. man sentenced to 15 years for spreading HIV

Fri. Mar. 3 2006
CTV.ca News Staff
An HIV-positive man was sentenced to 15 years in prison for having unprotected sex with seven women to whom he did not reveal his condition.
Before he was sentenced in B.C. Supreme Court in New Westminster, Nduwayo was permitted to address the court.
When he stood up, he went on a lengthy tirade -- speaking directly to his accusers and reducing some to tears.
"I feel very bad for these girlfriends who were infected. I did not mean to infect them," Nduwayo said.
Later, he added: "One day I will prove my innocence."
Justice John Truscott sentenced Nduwayo to 15 years after deducting two years for time already served.
In December, Nduwayo was found guilty of five counts of aggravated sexual assault, one count of attempted aggravated sexual assault and one count of sexual assault.
"The combined effect of the number of counts that we were dealing with in this case, resulted in the sentence being longer than any others that have been previously been imposed," Crown counsel Andrew MacDonald told CTV Vancouver.
Nduwayo was accused of deceiving sexual partners about his HIV status and deliberately engaging in unprotected sex between 2000 and 2003. Three of those women now have HIV, the virus that causes AIDS.
"Clearly the complainants who have been infected with the HIV virus have had a serious and devastating toll taken on their lives," MacDonald said.
During the trial, court heard that Nduwayo carried on affairs, and slept with more than one woman at the same time.
Nduwayo contends he always wore condoms to protect his sexual partners and that he didn't have a legal obligation to disclose his condition to his partners.
But some of his former lovers said they had to insist that he wear them -- and that even then he often did not.
Meanwhile, some AIDS groups argue that cases like Nduwayo's should not be criminalized.
"We feel that criminalization has the potential to deter people from testing," said Wayne Campbell, with the British Columbia Persons with AIDS Society. "We encourage people to get tested, every sexually active adult, should be tested every six months."
With a report from CTV Vancouver's Michele Brunoro

6 comments:

Fred said...

Criminal HIV Transmission doesn't exist in Canada. Assault in its various incarnations does exist and it's this avenue that prosecutors have utilized in cases involving HIV. The court(s) ruled that the primary issue was consent, that a person could not provide informed consent to a sexual act if a partner withheld an HIV+ status. Effectively a sexual act then becomes rape. Due to this position by the court(s) in Canada HIV does not even need to be transmitted; simply placing another at significant risk (without disclosure) meets the requirement for an Aggravated Sexual Assault conviction.

Simon said...

Was it proven that this man infected these women, if so how? Was it proven that they were infected sexually, rather than by blood or other contamination, if so, how? Rates of sexual transmission of HIV are very low, even from males to females.

I sympathise with the argument about consent but I still don't understand how this many sexually transmitted HIV several times and how that was proven.

Regards
Simon

Edwin J Bernard said...

Simon, see Fred's comment above. Canadian courts do not have to prove that the defendant infected the complainant(s), unless – in the case of Johnson Aziga - they are accused of murder. For charges of aggravated (sexual) assault, it is non-disclosure prior to sex considered to have a 'significant risk' of transmission that is prosecuted. That is why Canada needs guidelines.

Simon said...

Ok, but it makes a difference if he did or didn't infect them. Did any of the women inject drugs, visit an unsafe medical or cosmetic facility or take any other risks that may have given rise to them becoming infected? Did they share injection equipment or anything like that? If these women were infected by someone other than him, he has a problem giving informed consent too, hasn't he?

Edwin J Bernard said...

I follow your argument, but as I have said, the law in Canada does not care whether or not the result of the risk you too resulted in HIV transmission or not. Police do not investigate who else might have infected complainants because it is irrelevent to the case. Even in the murder case of Johnson Aziga, the police did not fully investigate the potential source of infection from other sexual partners. This is very different from England & Wales, where all complainants sexual (and other HIV-related risk( history must be investigated and ruled out as potential sources of HIV before a case can go forward. However, the law in E&W focuses on the 'harm' of the act, not the risk of harm.

Simon said...

I see. So those women could also have been HIV positive and not told him but because it can't be shown that they were HIV positive, and therefore committed the same crime against him as he did against them, he is guilty but they are not? So it's better not to know you are HIV positive, or if you do know, to make sure no one else knows you know? That will certainly put people off getting tested! It seems the aim of such legislation has nothing with reducing the spread of HIV.

Regards
Simon

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