Canada: The Johnson Aziga Case: HIV transmission should not be a crime

There's so much to say about the ongoing Johnson Aziga double murder trial that I am now waiting for the verdict before publishing highlights (lowlights?) of media reporting on this landmark case.

In the meantime, I'm posting a commentary by the highly respected Dr Mark Wainberg published yesterday in the McGill Reporter, the online publication of McGill University, Montreal, as food for thought.

The Johnson Aziga Case: HIV transmission should not be a crime
by Mark A Wainberg

The media have done an excellent job in recent weeks covering the murder trial of Johnson Aziga, who has been accused of sexually transmitting HIV to 11 different women, two of whom have died of their infections. Moreover, it is alleged that Mr. Aziga deliberately withheld from these women the fact that he was HIV-positive and that he refused to use a condom during intercourse. Most Canadians probably hope that Mr. Aziga, if convicted, is sentenced and imprisoned for his crimes, and believe that the criminal justice system should pursue these cases with vigour. But people should understand that such legal action, and the willingness of our courts to hear these cases, will only weaken the global battle against HIV transmission.

First, those cases that have gone to court have probably done more harm than good, even when it has been possible to prove wilful transmission. In almost all such instances, defence lawyers have seized upon the discredited notion that HIV may not cause AIDS. Because these cases have often attracted widespread coverage, the result is often confusion about the harmful nature of HIV and to give the so-called HIV denialists a platform from which to promulgate their views.

More important, we must consider that potentially being charged with wilful HIV transmission may deter a significant number of people from being tested for HIV infection in the first place. After all, if you do not know that you are HIV positive, you cannot logically be accused of transmitting it. This leads to two major negative consequences:

The failure to identify as many HIV positive people as possible will lead to higher rates of HIV spread than would otherwise occur. Multiple studies have now shown that individuals who are informed that they are HIV positive will commonly desist from high-risk sexual behaviour to protect sexual partners. This is not the case for the uninformed. This point cannot be over-emphasized, research has also revealed that as many as 50 percent of all new HIV transmissions are attributable to people who have only been infected recently. One reason for this is that levels of virus in the blood and sexual fluids are usually very high for about a six-month period following infection.

Delaying testing also means that many HIV-infected persons may not be diagnosed for several years after infection, thus giving the virus additional time to replicate and cause significant, often irreversible, damage to the immune system. This can sometimes result in life-threatening infections that might otherwise have been prevented. There are also concerns that failure to initiate anti-HIV therapy early may leave people more vulnerable to a variety of cancers.

Earlier initiation of anti-HIV therapy also lowers the amounts of virus in both blood and sexual fluids, thereby rendering people far less infectious to their sexual contacts. Indeed, some groups now proclaim that people whose viral replication is fully suppressed by antiviral treatment need no longer use condoms or take other precautions when having sexual relations with regular partners. Although health authorities have not endorsed this controversial recommendation, its very existence underlines that appropriate use of anti-HIV drugs will not only improve the health of infected people, but may also hold benefits for HIV spread and public health.

All of the above constitute grounds for advocating frequent testing of individuals who might be at risk of contracting HIV. Yet the risk of being accused of the crime of wilful HIV transmission, along with the stigma of being identified as HIV positive, might be powerful deterrents for many.

How can society resolve this problem, while not, in effect, encouraging sexual promiscuity and risky behaviour? We need to recognize that the current criminalization of HIV transmission is not doing any good and, might even have the perverse effect of increasing HIV transmission by people who do not know or don’t want to know that they are infected. We also need to accept that having sexual relations involves personal responsibility: Before having sex with someone, you should know them on more than just a superficial level.

Finally, let’s not confuse the issue of HIV testing and personal responsibility for consensual sexual relations with that of HIV transmission by rapists or other perpetrators of crime. Clearly, people who force others into non-consensual sex should continue to be charged and tried under the law. Probably, as well, a person who throws contaminated blood or needles at someone should be charged with assault, since their intent was most likely to cause harm, notwithstanding that any resultant skin contact with such blood would be extremely unlikely to result in HIV transmission. But the putative crime in such cases would be assault rather than intent to transmit HIV.

If the evidence against Johnson Aziga is upheld in court, this will substantiate that he is the unsavory, irresponsible individual that the prosecutors in the case have made him out to be. But let’s also recognize that our policies regarding criminalization of HIV transmission are having the opposite effect of those that were intended. Let’s fix things in order to have a much better chance at reducing the scope of the HIV epidemic.

Dr. Mark Wainberg is the Director of the McGill AIDS Centre at the Jewish General Hospital.