Canada: Gay man in Ottawa accused of HIV exposure charged with attempted murder faces further charges (update 2)

Update: August 18 2010

The 29-year-old man gay accused of not disclosing his HIV-positive status to several men before otherwise consensual sex now faces 26 charges in Ottawa and further five charges in Kitchener according to the latest update from Canada's gay newspaper and online resource, Xtra.ca, which continues to report responsibly about the case by not disclosing the names of the accused, unlike the mainstream press.

According to court documents obtained by Xtra this week, the accused is now facing 26 charges: four counts of aggravated sexual assault, four counts attempt murder, five counts of sexual assault, eight counts of breaching probation, and one count of child pornography possession. He is also facing a total of five charges In Kitchener for similar offences, including three counts of aggravated sexual assault and two failure to comply with probation conditions.

A 24-year-old co-accused Kitchener man also accused of not disclosing his poz status is facing two charges of aggravated sexual assault. He and the Ottawa accused man allegedly had a foursome with two other men in Kitchener. He has been on house arrest  since May. His next court appearance is scheduled August 24.  The accused has a Kitchener bail hearing scheduled there via video link on Aug 27. He was arrested on May 6. By the time his next Ottawa Sept 9 court appearance happens, he will have spent more than four months behind bars.

Update: June 30 2010

The 29-year-old man gay accused of not disclosing his HIV-positive status to several men before otherwise consensual sex has had his charges upgraded to include attempted murder, according to a report in the Ottawa Citizen.

The four counts of attempted murder were laid against [name of man] in relation to four of his alleged victims. [The accused] has also been charged with four counts of administering a noxious substance — HIV — to the four men. It now brings the total number of charges against [the accused], who is still facing 14 charges of aggravated sexual assault as well as multiple counts of sexual assault and breach of probation, to 31. [The accused] also faces seven charges in Waterloo on similar accusations.
[He] was arrested in early May after an 18-year-old Ottawa man [allegedly] contracted HIV after the two had unprotected sex several times in January. A bail hearing for Boone, which began Tuesday, is expected to continue next week. The evidence presented during that hearing is subject to a publication ban.

This is the third person to face attempted murder charges in Canada since the murder trial of Johnson Aziga.

In related news, a few weeks ago, Xtra.ca ran an article explaining to HIV-positive, -negative, and untested gay men what the law in Canada actually means. In particular, it highlights that Canada's focus on non-disclosure is sending the wrong message: disclosure is "a lousy strategy for staying HIV-negative."

Only having sex with negative guys? Think again. “Is asking your partners if they have HIV before having bareback sex a good way to prevent HIV transmission? The answer is no,” says Murray Jose, executive director of PWA Toronto. There are two main reasons for this. Firstly, according to the Canadian AIDS Society, about 20,000 Canadians — or 30 percent of Canada’s HIV population — are HIV-positive and don’t know it. Secondly, while most poz guys are committed to ensuring HIV ends with them, it’s a difficult subject to broach, meaning many people — whether poz or neg — have trouble discussing it, especially in the heat of the moment.

Original post: May 11 2010

The good news from Canada didn't last long. Within hours of the not guilty verdict in Vancouver, another gay man from Ottawa was being vilified in the press following an inappropriate press release from the Ottawa police.

Excellent work is being done following the intricacies of the case by Noreen Fagan and Neil McKinnon reporting for Xtra.ca.

They highlight the concerns amongst gay and HIV-positive advocates in Canada, and quote a regular blog reader, Michael Burtch, who is also a friend of the accused.

“It’s a witch hunt is what it has turned into. It’s very frightening for a lot of people in the HIV community to see what’s happening,” says Burtch. “The feedback that I have been getting from talking to people is that they feel as though it could just as easily be them. So there is I think a very strong swelling of support for [him] from the HIV positive community who feel a lot of empathy for his situation.”

Burtch is critical of the way the accused has been portrayed by the police and the mainstream media.

“Basically he is being presented as guilty before he has even had a trial. And all the actions that the police have taken are really just continuing to dilute the public health messages that practicing safer sex is everyone’s responsibility. I think we are really going to see that this is going to have a negative effect on testing in the city and its definitely going to have and effect on stigma and fear, discrimination and prejudice that HIV positive people are already dealing with on a daily basis.”

“I think that the Ottawa Police, despite their best intentions, have done a real disservice to the HIV community. And I am disappointed in the police liaison committee, I wish that they could have done more for him.”

Kathleen Cummings, the director of the AIDS Committee of Ottawa, agrees. She says that, while people may forget a name, they're more apt to remember a face. "This is going to affect him for life," she says.

Michael had previously been in touch to ask my permission to link to my blog in the invites to his annual birthday party fund- and consciousness-raising event, which takes place on May 20th.

On Thursday, May 20th, I'm hosting my annual Birthday Celebration.The party is in its third year and is a Birthday Celebration for yours truly, which doubles as an appreciation party for all my supporters who have donated cash, time, or talent to my numerous extra curricular activates as an activist and as a fundraiser.

This year's event is tackling sexual stigma and prejudice, homophobia, sex workers rights, and protesting the criminalization of HIV transmission. It will feature the photography of Pat Croteau, who will be showcasing nudes of local community members to raise funds for P.O.W.E.R. – Prostitutes of Ottawa/Gatineau Work, Educate and Resist. (tinyurl.com/POWERottawa).

He added in his email last Friday, informing me of his friend's arrest

I'm heart broken, and we here in Ottawa are rallying around him. Looks like my Birthday poster has taken on a whole new sense of urgency around here.

I fully support Michael's efforts, and really feel for the entire HIV community in Canada. These are terrible times.

Guyana: Lawmakers debate HIV-specific criminal law

A newly proposed law for the South American country of Guyana, entitled 'Criminal Responsibility of HIV Infected Individuals' was recently debated in the country's  National Assembly. (Thanks to Lucy Reynolds from the London School of Hygiene and Tropical Medicine for alerting me).

Two news reports published on July 30th – on Caribbean 360 and Stabroek News – cover the debate and outcome.

Everall Franklin, member of the Guyana Action Party-Rise Organise and Rebuild (GAP-ROAR) proposed the law, seconded by Latchmin Punalall from Alliance For Change (AFC). Both cited their belief that the law would deter HIV-related risk-taking behaviour and/or force individuals to disclose their status.

While speaking on the motion, Franklin said that the stigma and discrimination associated with the virus is being propelled by ignorance and noted that the intention of the motion was, while not to remove or dilute existing laws, to ensure that certain obligations of individuals are kept in tact while others enjoy their rights. He said that the motion should be considered from the perspective of a person being tested positive as having contracted HIV having the responsibility of informing partners of his/her status. In addition, a person being raped by someone who is infected with the virus as well as women who become pregnant year after year, and who have tested positive for the virus, should be considered, he said.

AFC MP Latchmin Punalall, who seconded the motion, said that her party  stands for the sanctity of humanity and according to her the time is right to pass critical legislation to prevent the spread of HIV by “reckless” persons. Against this backdrop, she noted that when such individuals know before hand that a “stiff penalty is in place …they will think twice.”

Strong opposing arguments came from Health Minister Dr Leslie Ramsammy, supported by Volda Lawrence of  the main opposition People’s National Congress Reform (PNCR). 

“Stigma and discrimination have proven to be the powerful drives of the HIV epidemic. Most people living with HIV and know their status are taking measures to protect themselves and others,” [Ramsammy] said, insisting that any motion that sets criminal penalties for HIV transmission and to force public disclosure of a person’s status is counter to the objectives of public health. “The fact is that criminalisation of HIV exposure risks undermining public health and human rights and as such it is not a solution,” the Health Minister maintained.

He emphasised that in the instance where a person willfully transmits HIV with intent to cause harm, the matter calls for a comprehensive national dialogue, which can be deliberated at the level of the parliamentary special select committee.

Of particular interest was Mr Franklin's referral to precents set in the Global North

adding that nations, including the US and Australia, have passed laws making the wilful spread of HIV a criminal offence.

Ms Lawrence countered that

criminal procedures have been implemented in countries where addressing the issue is concerned but according to her such measures have not been effective.

All Members of Parliament have agreed that the motion be taken to a special select committee to be discussed further.

UK: New Guidance for Police Investigating Criminal Transmission of HIV

I'm reproducing below a press release issued yesterday by the National AIDS Trust (NAT) about the new UK (with the exception of Scotland) guidance for police officers investigating allegations of criminal HIV transmission. We'll hear more about the guidance – a world's first – and how it was developed, at the International AIDS Conference in Vienna which begins on Sunday.

Police and HIV sector work together to produce guidance

New guidance has been produced to help police when investigating allegations of criminal transmission of HIV. The guidance provides police officers with basic facts about HIV and sets out advice on how to deal with complaints about reckless (or intentional) transmission of HIV in a fair and sensitive manner.

The new guidance from the Association of Chief Police Officers (ACPO) was developed by a working group which included police officers, representatives of the Crown Prosecution Service and the National Policing Improvement Agency, and the National AIDS Trust. Police across England, Wales and Northern Ireland will be expected to follow new guidance.

Ellie O’Connor, Detective Chief Inspector of the Metropolitan Police, comments;

“Investigations into the criminal transmission of HIV are extremely rare but we know they cause a lot of anxiety for the individuals involved. It is important police officers have an understanding HIV and what to do should someone make a complaint.

In producing this guidance we listened to the concerns of the HIV sector and worked in partnership with them. We strongly encourage all police forces to disseminate this guidance and ensure officers know to access it when a case occurs.”

Deborah Jack, Chief Executive of NAT, comments;

“Criminal investigations into HIV transmission worry many people with HIV, even though they occur only very occasionally. We are pleased that we have been able to work together with the police to produce guidance for their officers. The Association of Chief Police Officers took the issue very seriously.

The resulting guidance sets out a fair way to deal with these investigations that keeps in mind the particular sensitivities of HIV. This new guidance should serve to reduce the number of police investigations and reassure people living with HIV of what they can expect in the unlikely circumstance this occurs.”

For further information about this issue NAT and THT have produced a leaflet for people living with HIV - Prosecutions for HIV Transmission: A guide for people living with HIV in England and Wales.

Under the new guidance for police investigating criminal transmission of HIV, people living with HIV can expect:

• to be treated supportively.
• for their confidentially to be respected.
• an investigation of reckless transmission only to be pursued if a complainant has been infected with HIV
• for the case to be continually discussed with the Crown Prosecution Service to ensure only legitimate complaints are pursued.
• contact with any other individuals relevant to the case to be initiated by trained staff at GUM clinics.
• and uninterrupted access to medication in the event of being taken into custody.

If someone reports to police concerned that they have been exposed to HIV in the past 72 hours they will be referred to an open sexual health clinic or the nearest hospital Accident and Emergency Department to ask for PEP.

For a background study of early police investigations of alleged cases of HIV transmission see Policing Transmission by Terrence Higgins Trust.

US: Arkansas man accused of HIV exposure not HIV-positive despite confession

A 41 year-old man in El Dorado, Arkansas, appears to have admitted under police questioning that he was HIV-positive after being arrrested in September for allegedly having unprotected without disclosing his HIV status.

However, a brief report from the police log of the El Dorado News-Times notes that the man was, in fact, HIV-negative, something he'd maintained during his arrest.

One can only wonder what went on during his time being questioned by police that could have made this man confess to something that wasn't true, and why he was arrested in the first place.

Charges will not be filed against an El Dorado man who was arrested on Sept. 17 for knowingly/willfully exposing another person to HIV. Police said an investigation determined that [name of accused] 41, does not have HIV. According to an affidavit for warrant of arrest, [he] initially told officers he was not HIV-infected, but upon further questioning, he said he had the virus. Police said testing and a review of [his] medical records led to the charge being dropped.

US: Doctor advises patient to file HIV exposure charges in New York State

In what must be a serious breach of medical ethics, a doctor in Niagara Falls on the US/Canadian border, has advised a man to go the police after he discovered that a casual female sex partner had HIV without disclosing this to him.

In the very brief story in The Buffalo News, there is no mention of criminal charges: simply information from the police that the man had filed a police report. At least they don't name the woman!

UK: Man arrested for unprotected sex with several women

A 39 year-old man from Bournemouth has been arrested and released on police bail following complaints from several women in Exmouth, East Devon that he did not disclose his HIV status to them before they had consensual unprotected sex.

The case was first reported in Saturday's Western Morning News with the unbelievably stigmatising headline: The HIV Timebomb.

A spokesman yesterday said: "Devon and Cornwall Police can confirm a number of women have come forward regarding allegations of their having had unprotected sex with a man who they now believe to be HIV positive. They allege he failed to disclose this to them."

Unprotected sex without disclosure is a not a crime in England & Wales and police should not be arresting individuals based on complaints of unprotected sex.

Since then, various other papers and websites have run stories about the case, including This is Exeter (complete with quotes from local councilors - why exactly?) and, of course, the Daily Mail, which managed to totally misrepresent THT's Lisa Power, who would never have "urged possible victims to contact police" in a million years.

This looks like a witch hunt to me (and to other UK HIV advocates with whom I am in touch), and is, sadly, another example of how the police get it wrong.

The man has been released on police bail until May 11. Let's hope that the police fishing expedition, reminiscent of the case of a London woman in 2006, not only comes to nothing, but that the police are made aware of their serious errors.

UK: Report shows police mishandling of investigations into alleged criminal HIV transmission

Below are the opening paragraphs of a news story I wrote for aidsmap about a new THT report about how the police in England are handling investigations into criminal HIV transmission.

The full report, Policing Transmission, can be downloaded from THT.

A new report by the Terrence Higgins Trust (THT) launched [on January 27th] at the House of Commons has revealed a systematic mishandling of complaints for alleged criminal HIV transmission in England & Wales. The report, Policing Transmission was welcomed by the Association of Chief Police Officers (ACPO), which acknowledged that “too many times we have got it wrong".

There have been “scores, if not hundreds” of arrests since the first conviction for reckless HIV transmission in England and Wales, that of Mohammed Dica in October 2003, noted THT's Sir Nick Partridge speaking at the launch of the report in the House of Commons, hosted by Lord Norman Fowler, Vice Chair of the All Party Parliamentary Group on AIDS.

Sir Nick said that whilst most police investigations had been dropped due to a lack of evidence, during the course of these ‘failed’ investigations - which had lasted up to a year - “lives had been turned upside-down and some came close to being destroyed”.

During the period 2005-6, there was an average of one arrest every two weeks. Concerned at this number of arrests and aware of the cost, in terms of “public resources and private misery”, THT approached ACPO and the Metropolitan Police Service (MPS) in order to examine the role of the police in criminal HIV transmission investigations.

Read more here.