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Tuesday 5 February 2008

Canada: HIV exposure charge dismissed following dramatic Ontario courtroom scene

In a rare piece of good news to come out of Canada, Mark Hinton, of London, Ontario, left the court a free man yesterday after a charge of attempted aggravated sexual assault – for allegedly exposing another man to HIV two years ago – was dismissed.

Mark was originally charged with aggravated sexual assault – reckless HIV transmission – when he was arrested in July 2006, but because the Crown could not prove definitively that the complainant's infection came from him, the charges were reduced to attempted aggravated sexual assault – HIV exposure.

In a dramatic turn of events yesterday, the complainant – a 23 year-old – admitted during cross-examination by Mark's defence lawyer, Ron Ellis, that HIV was not a concern to him before he engaged in "moderately high-risk" unprotected sexual activity with previous sexual partners: basically an admission of consent to HIV exposure.

This was enough for the Crown to concede that they were unable to prove the allegation beyond a reasonable doubt, and Superior Court Justice Johanne Morissette then informed Mark that the charges were dropped and that he was free to leave the court.

Full details are in Mark's the local paper, the London Free Press, reproduced below.

Let's hope that Mark's case is the beginning of the end of the witch-hunt against HIV-positive gay men that is currently taking place in Ontario.

Charge dismissed against HIV-positive man

By Jane Sims, Sun Media.
Tue, February 5, 2008

Two years ago, Mark Hinton was singled out as a public danger after he was arrested for trying to spread the virus that causes AIDS. Yesterday, the slight man who has been HIV positive for 22 years let out a breath of relief after a judge dismissed a criminal charge of attempted aggravated sexual assault against him.

"The nightmare is over after two years," said Hinton, 41, moments after Superior Court Justice Johanne Morissette told him he was free to leave the courtroom. "This has been the hardest two years of my life."

Hinton has maintained he never infected a 23-year-old man who testified yesterday they had unprotected sex twice after meeting on a gay Internet chat line in early 2006. However, Hinton never got a chance to tell his version of events. The case ended after the man said during cross-examination by defence lawyer Ron Ellis that HIV was not a concern to him before he engaged in "moderately high-risk" unprotected sexual activity with previous sexual partners.

The man, whose identity is protected by court order, gave what Middlesex Crown attorney Geoff Beasley described as "incredibly honest" answers to Ellis's questions. That admission of consent substantially weakened the Crown's case to prove the allegation beyond a reasonable doubt, Beasley told Morissette.

The 23-year-old man testified that he and Hinton met on, an Internet chatline. They met in person and had unprotected sex twice. He said when he asked Hinton if he was "clean and healthy," Hinton told him he was fine. He testified he was unaware of Hinton's HIV status until he was told by other people. He said he sent Hinton an e-mail and the reply was he was "fine" and the rumour of his infection was not true. Later, when they met again, Hinton had a small bandage on his arm and said he was HIV negative. The man found out he was HIV positive later that spring.

Hinton was in custody for a week before he was released on bail in July 2006. He couldn't find work and said he was treated like a social pariah.

Hinton's original charge of aggravated sexual assault was reduced to attempted aggravated sexual assault because the Crown could not prove definitively that the man's infection came from Hinton.

He said after his case was dismissed that he and the man had met over three days, but never had sex. Hinton said he was being used as a "scapegoat" for the younger man's HIV status that was discovered in the spring of 2006.

Ellis said after the dismissal he planned to have Hinton tell his side of the story. He wanted to point out that after Hinton's charge and photograph were circulated in the community, no one came forward to say they had become infected with HIV through sexual activity with him. He also said his client was always forthright in disclosing his HIV status to health and police officials.

The original details of Mark's arrest and charges were reported in the London Free Press in July 2006.

Man charged with assault in HIV case gets bail
Must abide by health-unit order
By Jane Sims, London Free Press Justice Reporter
Fri, July 7, 2006

A man charged with aggravated sexual assault in connection with the possible spread of HIV to another man was released on bail Friday.

Mark Hinton, 40, thin with bleached blond hair, walked out of the prisoner’s box, paused to thank his lawyer, Jack Hardy, then sat with his friends waiting in the London courtroom following his release. He was hugged by one of his sureties. Hinton had been in custody since his arrest last week.

London police issued an order last week asking anyone who had a sexual relationship with Hinton to call the sexual-assault section at xxx-xxxx-xxx. Hinton was released with the Crown’s consent and two sureties pledging $2,000 each. A publication ban was placed on the evidence at the hearing and the person named as a victim in the charge.

Justice of the Peace Elaine Babcock said Hinton must reside with one of the sureties in London, not possess any weapons and abide by the specific conditions of a health-unit order already imposed on him.

London police arrested Hinton after a man claimed to have been infected with the sexually transmitted virus after his partner assured him he was disease-free. He had sex with the man twice between Feb. 1 and March 31, 2006. The man later learned his partner was intentionally spreading diseases.

Assistant Crown attorney Geoff Beasley did not disclose the nature of the order under the Health and Protection Promotion Act. However, there is a legal order available that can be imposed upon persons who are not complying with disclosing their infection to other people.



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