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Thursday 8 January 2009

Canada: Another heterosexual migrant charged with HIV exposure

An HIV-positive Toronto man has been arrested and charged with aggravated sexual assault after it is alleged that he did not disclose his HIV status before having unprotected sex with his female partner.

It comes as no surprise to see that the first new arrest/prosecution of 2009 comes from Canada, which currently has the highest ratio of prosecutions per capita of HIV-positive people in the world. (Only the United States has prosecuted more people globally, but there are only 58,000 people with HIV in Canada compared with more than a million in the US.)

Neither is it a surprise that the case involves another heterosexual man – whom I also assume, from his name and photo (which I have not published), is also likely to be a migrant from a country of high HIV prevalence – like many of the 18 other reported prosecutions for HIV exposure or transmission in Canada in 2008.

One must ask oneself whether heterosexual migrants are disproportionately being prosecuted because they are more likely than other HIV-positive people to have sex without disclosing their HIV status first (which is highly unlikely), or whether there is something very wrong with the system.

Many of the complainants have been (presumably) white heterosexual women who did not believe they were at risk of HIV. I believe that much of the fault lies with Health Canada. There is still a perception that only gay men, aboriginals or injecting drug users are at risk of HIV, when the numbers of heterosexually-acquired HIV have been increasing.

(Source: Public Health Agency of Canada HIV/AIDS Epi Updates, November 2007)

Better public health education about the risks of unprotected sex would result in more people of all genders, sexualities, ethnicities and origins being aware that the only way to protect yourself from HIV is to protect yourself, and not rely on your sexual partner, no matter what the flawed Canadian law says.

(For more on what has been termed 'African Immigrant Damnation Syndrome', see my article on the GNP+ Global Criminal Scan site.)

Full story (without photo) below from The Toronto Star.

HIV-positive Toronto man charged with sex assault
Jan 07, 2009
by Precious Yutangco
Toronto Star

A Toronto man has been arrested and charged with aggravated sexual assault after police allege that he deliberately withheld the fact that he was HIV positive in order to have unprotected sex with a partner.

Police also released a photograph of the suspect because they fear there are other victims.

"There is evidence to believe that he may have infected several other women," Det. Kate Beveridge said Wednesday night.

She said detectives are in the process of contacting at least two other women whom the suspect allegedly withheld his medical status from in order to have unprotected sex.

Beveridge would not reveal details about how the suspect knew the victim or where he may have met his other sexual partners, in order to protect their identities.

In regards to the charge, the suspect and victim knew each other.

"It was not a one-night stand," she said.

Lindani Msimanga, 29, of Toronto, is expected to make a court appearance Thursday morning.

Last month, the Ontario Court of Appeal sent Roger McGregor to jail, setting aside a previous 12-month conditional sentence and substituting 12 months in jail, after he did not tell his girlfriend that he had been HIV positive for more than a year.

The victim accidentally found out about his HIV status after she stumbled upon a medical information sheet on his bedroom dresser. She took it to a pharmacist to find out what the medication was for.

She was told it was for HIV.

Police charged McGregor with aggravated sexual assault.

Meanwhile, Johnson Aziga, 52, who has spent five years in pre-trial custody, is currently on trial after two women he allegedly had unprotected sex with died.

He is facing two first-degree murder charges for allegedly spreading the virus that caused AIDS. He is also facing 11 counts of sexual assault.

Aziga's case is being touted as a landmark as similar cases have previously led to lesser aggravated assault charges rather than murder.


MancSense said...

"One must ask oneself whether heterosexual migrants are disproportionately being prosecuted because they are more likely than other HIV-positive people to have sex without disclosing their HIV status first (which is highly unlikely), or whether there is something very wrong with the system."I've asked myself this from the start and always been very concerned at what I believe is the answer.

The system's complaints-ledHowever we need to recognise that the 'system' depends crucially on people to make complaints. My sense is that this is where the disproportion originates. I believe the system then enhances the initial imbalance in the numbers prosecuted, and in the outcomes.

Many of the complaints seem to come from white women alleging transmission from black / African male migrants or residents.

Is there sometimes an element of personal racism encouraging some women to complain to the police that doesn't exist when the source is a white Canadian heterosexual man?

Perhaps there is for some of these women - after all most white Canadian women who become HIV+ don't complain to the police. I simply don't know, but pose the question. We do know that white British society has an enduring racist view of 'dangerous' black / African male sexuality that I suspect we share with Canada. That could help explain it.

Complaints-led: gay men's reluctance

In your Global Criminalisation Scan article, this, at the end, leapt out at me:

"out of the 17 reported cases in the past year, only three involved sex between men. This strongly suggests that not only are African migrants disproportionately being prosecuted, but also that heterosexual transmission (all of the African migrants were men prosecuted for sex with women) warrants disproportionately more attention from the criminal justice system than HIV transmission between men."The disproportion in prosecutions is (also) partly explained by gay men being less likely to go to the police about transmission (and exposure) for a range of reasons.

- The history of legal anti-gay discrimination,
- community memories and experience of homophobic treatment by police when gay people have reported other crimes,
- fears of the police turning their attention on the complainant,
- possible use of illegal drugs,
- the transmission may have come from an anonymous / untraceable partner,
- the widespread understanding among gay men that not using condoms means taking a risk of STIs/HIV which are far more prevalent; for most heterosexuals HIV is not a consideration,
- generally greater partner numbers makes 'knowing' who infected you more difficult,
- concerns about insensitive treatment of gay sexual relations and norms by the police, media and courts,
- a better awareness of and perhaps a sense of resignation about a known risk,
- low expectations of the criminal justice system (notorious injustices outnumber excellence of treatment for gay victims of crime),
- low self esteem and internalised homophobia (I deserve it),
are some of the factors likely to inhibit gay men from complaining to the police.

Legal lack of attention to gay men
Personally I'm rather grateful that the criminal justice system isn't giving its fair share of attention to transmissions between men. Discrimination doesn't often work in our favour, and more prosecutions of gay men living with HIV would only worsen the stigma HIV+ gay men experience at the hands and mouths of so many other gay men, and make HIV prevention even more problematic.

Mitigate with new community normOne harm reduction aim to mitigate the damage prosecutions cause might be to try to encourage a community norm to develop that complaining to the police about transmission is unacceptable behaviour - like grassing up your mates, the people who socialise in the same places as you. As a community we can choose not to collude with a law we believe causes more harm than good to our common well-being. The law will then wither because it is not being fed new victims.

Reducing complaintsWe'll need better support services for the people who feel aggrieved about their infection and offer an attractive alternative to divert them from following a prosecution path - such as effective skilled mediation and counselling services. This is likely to require new pathways and protocols to be developed. It would help immensely if it were formally recognised as the standard response.

We'll also need better support from healthcare and community support services around the time of diagnosis when people have strong reactions and look like taking a legal route. Experience suggests that helping people meet others as soon after diagnosis as possible is very beneficial in accepting and normalising HIV.

Advice about prosecutionsPeople need dispassionate and accurate advice
- about the investigatory and legal process,
- pros and cons of complaining and the alternatives,
- the likelihood of cross examination in court,
- how investigation into their own sexual history which will involve testing previous partners is essential (under current English proper prosecution practice),
- the embarrassment and risks of media coverage, even anonymised,
- the great uncertainty of the outcome, and
- the emotional strength they will need to cope during a legal process that is likely to take around a year or even longer, and that, once started, is almost immediately out of their control.

I suspect few who complain would do so if they could choose again, given their own recent diagnosis. Complaining to the police in retrospect comes to seem a knee-jerk reaction to the shock of diagnosis. My experience suggests that causing a prosecution rarely helps people come to terms with their diagnosis in a healthy way.

What do people really want?Fundamentally people want the wrong that has been done to them acknowledged and treated seriously, and a strong assurance that the person won't do it again. A genuine fulsome apology might be enough for some. Some will want the person punished. But jail is almost the only sentence courts consider, and that is not necessarily an outcome the complainant wants. Mediation might give far more satisfaction.

Keep on thwartingThe collateral damage prosecutions cause, particularly to public health and in stigma, is enormous.

We need to continually use our ingenuity to develop new ways to thwart the harm, if we can't successfully change the law.


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