In a case that shows up Canada's criminal HIV exposure laws for being ridiculous, arbitrary and discriminatory, an Ontario woman was last week thankfully acquitted of aggravated sexual assault for allegedly having unprotected sex with a man without disclosing her HIV status.
The case – which was more about bravado and gossip than any kind of crime – was heard by a judge, rather than a jury (if anyone can explain why, please leave a comment).
One of the most insidious aspects of the case is that although the woman's name has been splashed all over the local paper, The Hamilton Spectator, in a series of lurid court reports, both of the witnesses (the complainant and a waitress, a friend of the woman who informed the complainant that the woman was HIV-positive) have had their identities protected.
The case boils down to this. A man was bragging to a waitress that he'd had "wild sex" with a friend of hers. She told him that the friend was HIV-positive and that she'd hoped he worn a condom. When the waitress found out that he hadn't worn a condom, or knew that she was HIV-positive, she called Crime Stoppers, resulting in a Canada-wide warrant for the woman's arrest.
During questioning in 2006, and in court, the woman denied ever having sex with the complainant which explained why she didn't reveal her HIV status to him. The judge found the woman not guilty because there was no evidence that the woman had engaged in sex with the man, and because the woman was more credible than either the complainant or the waitress. No HIV transmission occurred.
The three reports from The Hamilton Spectator are below. I have blacked out the name of the accused woman, but as long as the links to the original newspaper reports work, you'll find her name there, unfortunately.
Paul Legall
The Hamilton Spectator
(Aug 8, 2008)A judge acquitted a 39-year-old woman of aggravated sexual assault after rejecting the story of a man who claimed she'd exposed him to the virus that causes AIDS.
The complainant, whose identify is protected by a court order, had testified that he'd had a number of sexual encounters with xxx xxxx after meeting her at Cagney's pub on the Easter weekend of 2006.
He also claimed she'd never told him she was HIV positive or suggested they use condoms.
In acquitting xxxx at the end of her three-day trial yesterday, Superior Court Justice Stephen Glithero concluded the Crown hadn't proved its case beyond a reasonable doubt.
He had difficulty accepting the complainant's evidence because he seemed bent on exaggerating his sexual exploits and gave different versions about the number of times they'd engaged in sexual acts.
"His demeanor showed a braggart or bravado attitude," he said.
He was referring to the evidence of a waitress, who said the complainant had bragged at the bar where she worked about having "wild sex" with xxxx during a trip to Niagara Falls. He provided her with graphic details of the sex, including a discussion he claimed they'd had about anal sex.
The waitress, whose identity is also protected, testified she alerted the complainant that xxxx was HIV positive after he told her they hadn't used condoms.
The 40-year-old woman, who had known xxxx since Grade 9, said she phoned her former friend and confronted her about having unprotected sex with the complainant.
"How could you do that to him?" she said she told xxxx. She also reported her to Crime Stoppers.
Hamilton police issued a Canada-wide warrant for xxxx after the complainant reported the case to the public health authorities and provided a statement to police.
He came out negative when he was checked for HIV.
Xxxx didn't testify during the trial, but gave a taped statement to Hamilton Detective Michael Senchyshak after her arrest by the Espanola OPP on Oct. 7, 2006. She was living in xxxx near xxxx, at the time.
In the interview played at the trial, she admitted going out with the complainant and that they'd shared a hotel bed in Niagara Falls.
But she denied ever having sex with him and told Senchyshak she didn't reveal her HIV status because they weren't having sex.
She said she contracted the virus from her late husband when she was a teenager. Her husband, who died of cancer, got the virus from tainted blood.
Glithero found her story to be more credible than those of the waitress or the complainant. He noted she had answered all of Senchyshak's probing questions and never wavered from her assertion that they'd never engaged in sexual acts.
"In my opinion, she answered the officer's questions in a direct and forthright manner," Glithero said. "It's impossible to reject her evidence when it has not been shaken in cross-examination by the police officer."
He noted in passing, however, there were several "aspects of this case that don't add up."
For example, he had trouble believing the pair had shared a bed in Niagara Falls without engaging in sex. But he added it wasn't his job to fit all the pieces of the puzzle, only to determine whether the Crown had proved its case.
Xxxx hugged her lawyer, Stephen Berstein, before leaving the courtroom with her husband.
Paul Legall
The Hamilton Spectator
(Aug 7, 2008)Xxx xxxx -- who has been HIV-positive most of her adult life -- flatly denied having sexual relations with a Hamilton man who testified she exposed him to the potentially-fatal condition through unprotected sex.
"I'm not a bad person. I wouldn't do anything to hurt anybody ... I wouldn't want to bring this on anybody," xxxx said during an interview with Hamilton Detective Mike Senchyshak on Oct. 7, 2006.
The 39-year-old woman, who was living in xxxx, near xxxx, at the time, said she was well aware of the risks of unprotected sex, having contracted the virus from her late husband while she was in her teens.
Her husband, who got the disease from tainted blood, eventually died of cancer.
The taped interview was played yesterday before Superior Court Justice Stephen Glithero, who will decide today whether xxxx is guilty of aggravated sexual assault. She has pleaded not guilty.
The complainant, whose identity is protected by a court order, testified this week he started having sex with xxxx after they met at Cagney's Pub on the Easter weekend of 2006. He related five occasions when he claimed they engaged in sexual intercourse and oral sex in his Hamilton apartment and at a hotel in Niagara Falls over a period of about two weeks.
A waitress who worked at Doc's Tavern on the Mountain testified yesterday the complainant bragged at the bar about having "wild sex" with xxxx the whole time they were in Niagara Falls.
She said she was shocked to learn he wasn't wearing a condom and alerted him that xxxx was HIV positive. She also reported xxxx, a friend since grade school, to Crime Stoppers.
A Canada-wide warrant was issued for xxxx's arrest after the complainant contacted Hamilton police and the public health authorities. She was arrested by Espanola OPP.
During the 2006 interview after her arrest, xxxx agreed that she had slept over at the complainant's Hamilton apartment and that they'd shared a king-size bed at the Niagara Falls hotel. But she denied having any kind of sexual contact with him.
She stressed she didn't "sleep around" and could be friends with somebody without having sex. She said she never told the Hamilton man she was HIV positive because they weren't having sex.
During the interview, Senchyshak told her he had no reason to doubt the complainant's story.
"He's not lying. He's not making it up," he told xxxx. "He's very scared ... He's scared of being HIV positive."
"He has no reason to be scared," xxxx shot back.
Paul Legall
The Hamilton Spectator
(Aug 6, 2008)A former Hamilton man testified he had unprotected sex at least a dozen times with a woman he met at a Hamilton bar before learning through a mutual friend that she was HIV positive.
The man, whose identity is protected by a court order, testified in Ontario Superior Court yesterday that he started having sex with 39-year-old xxx xxxx the night they met at Cagney's Pub on the Easter weekend of 2006.
Over the next few weeks, he said they had sexual intercourse and oral sex several times at his apartment on Hamilton Mountain and at a hotel in Niagara Falls. During these sessions, he said, she never revealed her HIV status or insisted that they wear condoms.
He said he only learned she was HIV positive through a mutual female friend who worked at a waitress at Doc's near his home.
"I hope you wore a condom ... because xxx is HIV positive," he quoted the waitress as saying, after he told her he was dating xxxx.
Some time later, he said he telephoned xxxx at her home in Massey near Sudbury and repeated what the waitress had said. He said xxxx called the waitress a liar, denied she was HIV positive and told him they'd never had sex.
Xxxx has pleaded not guilty to aggravated sexual assault.
During cross examination, defence lawyer Stephen Berstein suggested that his client and the complainant were just dating and had never engaged in any sexual acts.
He also suggested the complainant had to go along with the story after the waitress at the Doc's assumed they were having sex.
"You didn't want to be embarrassed ... you'd already started the ball rolling ... you would have been the laughing stock (at the pub)," Berstein told the complainant.
The complainant stuck to his story.
Shortly after his conversation with the waitress, he notified the public health unit and made a statement to police.
He said he underwent HIV tests with negative results.
An immunology doctor testified xxxx tested positive for HIV in December, 1993, and that she had contracted the virus from her first husband, who later died of the condition.
The waitress expected to take the witness stand today.
The case is being heard by Justice Stephen Glithero without a jury.
1 comments:
Judge vs Jury Trail.
In Canada an accused facing an indictable offense needs to elect whether they want to be tried by a Judge or Judge with Jury. Depending on the case and complexities of the law it's sometimes better to proceed with Judge alone.
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