US: Lambda Legal Appeals Conviction of HIV-Positive Man (Press Release)

Lambda Legal Appeals Conviction of HIV-Positive Man

"This conviction cannot stand because someone who engages in safe sex is not guilty of criminal transmission of HIV."

(Des Moines, IA, June 14, 2012) - Today Lambda Legal filed an appeal on a petition for post-conviction relief in the Iowa Supreme Court on behalf of an HIV-positive Iowa man, Nick Rhoades. Rhoades was sentenced to 25 years in prison and lifetime registration as a sex offender after having a one-time sexual encounter with another man during which they used a condom.

"The law only applies to those who intend to expose others to HIV," said Christopher Clark, Senior Staff Attorney for Lambda Legal. "This conviction cannot stand because someone who engages in safe sex is not guilty of criminal transmission of HIV.  Nick's use of a condom clearly indicates that he was protecting his sexual partner from exposure."

In June 2008, Rhoades had a one-time sexual encounter with Adam Plendl during which they used a condom. Several days later, Plendl was told by a friend that Rhoades might be HIV-positive, and he contacted the police. The police arrested Rhoades in September 2008, and on the advice of his counsel, he pled guilty. Despite the fact that a condom was used and Mr. Plendl did not contract HIV, Rhoades was convicted of intentionally exposing Plendl to HIV. He received the maximum sentence: 25 years in prison and lifetime registration as a sex offender. Several months later, the court suspended his prison sentence, and he was placed on supervised probation for five years. On March 15, 2010, Rhoades filed an Application for Post-Conviction Relief, arguing that he had received ineffective assistance from his counsel who advised him to plead guilty.  In December 2011, the court denied the application. Lambda Legal is representing Mr. Rhoades in his appeal to the Iowa Supreme Court.

"To think that for the rest of my life I'll be branded as a felon and sex-offender, all because of a one-time safe sex encounter where no HIV was transmitted, is unimaginable," said Nick Rhoades.

Thirty-nine states have HIV-specific criminal statutes or have brought HIV-related criminal charges resulting in more than 80 prosecutions in the United States in the past two years alone. Among other things, HIV criminalization perpetuates the many myths and misconceptions that fuel other types of discrimination against people living with HIV. It sends an inaccurate message regarding prevention responsibility, creates a disincentive to getting tested, and may actually discourage disclosure of HIV status.

"Criminal laws, like the one in Iowa, unjustly target people living with HIV and subject them to unwarranted prosecution and punishment," said Scott Schoettes, HIV Project Director for Lambda Legal. "By representing people like Nick Rhoades, we are doing what we can to ensure these outdated and unnecessary laws are not abusively misused against people whose conduct is not actually prohibited under them."

The case is Nick Rhoades v. State of Iowa, read the brief here: http://www.lambdalegal.org/in-court/legal-docs/rhoades_ia_20120613_proof-brief-of-applicant-appellant-and-request-for-oral-argument

Singapore: Two men with HIV jailed for non-disclosure to same man at different times

A 27 year-old former civil engineer and a 48 year-old married man who had casual sex at different times with a 37 year-old man (who subsequently tested HIV-positive) have each been sentenced to 18 months in prison because they did not disclose they were HIV-positive. 

This is the first time that I'm aware that one complainant has resulted in two different convictions, and highlights the unbelievable unfairness of a criminal justice approach to HIV prevention.  There have now been three convictions for HIV non-disclosure in Singapore - all of those prosecuted have been men who had sex with men during a single encounter.  The first, in 2008, was simply for performing oral sex, for which there is no HIV risk for the receptive partner. 

The 27 year-old was the first person to be sentenced under the 2008 Infectious Diseases Act for having oral sex (without condoms) and anal sex (with condoms) and not disclosing he was HIV-positive with the 37 year-old in January 2009, according to a report on channelnewsasia.com.  He also had an undetectable viral load.  Taken together, this means there was no risk to his partner.

In his mitigation, he said he found it difficult to disclose his HIV-positive status. He said the intention was not to harm the victim, but was one of "self-protection" as he was afraid of being "abandoned by his social circle". He told the court his condition was under control by medication when he met the victim and that they had protected sex.
However, the prosecutor for the Ministry of Health, K Kalaithasan, called for a jail term of more than a year, saying the victim would not have engaged in sexual activity if he had known about the man's HIV status. In sentencing, District Judge Siva Shanmugam said the nature of the offence was "grave". He said by failing to inform the victim for his "own selfish reasons", the offender had "endangered the safety of others".

The second man, who had sex with the 37 year-old in May 2009, was also given an 18 month sentence.  He says that he couldn't have been the source of the complainant's infection because he was the receptive partner and the 37 year-old had used a condom.  Ironically, the complainant could not confirm that he used a condom (and surely, as a 'top', it was his responsibility to wear one!) 

In a remarkably sympathetic report in The Straits Times, the man reveals how the prosecution has had a devastating effect on his wife and how he had considered suicide.

When a 48-year-old HIV-infected man pleaded guilty last November to having had sex with another man in May 2009 without revealing his status, he knew he might have to go to jail. Since then, his sentencing has been adjourned a few times to give him time to settle his affairs — including telling his wife about this court case. He could not bring himself to do it. He told The Straits Times last month that she knew he had tested positive for the virus that causes Aids, but he could not tell her about his conviction because she was already stressed in her administrative job.

“I can’t burden her more. I don’t know how to face her,” the former quality assurance technician said.

She now knows. The 40-year-old woman told The Straits Times yesterday that he broke the news to her just before Chinese New Year, but said she was in no frame of mind to say more. The couple have no children. Her slim, short and bespectacled husband, who did not have a lawyer, broke down in tears yesterday on hearing that he would be behind bars for 1-1/2 years. ...

Sometimes I feel like killing myself. But I can’t do it... I hold back because of my family,” he added.

Again, the sentencing judge pulled no punches when sending the man to prison.

In passing sentence yesterday, District Judge Janet Wang said it is not the intention of the legislature to enforce the law against every HIV-infected person. However, she added, the penalties for keeping one’s HIV status a secret and failing to obtain a sex partner’s consent to being exposed to the risk of infection are in place for deterrence and to reflect the gravity of such offences. The judge said that, for his own sexual gratification, the accused had knowingly concealed his HIV status from his male sex partner, which she said was ‘highly unconscionable’ and showed a disregard for the other person’s well-being. “Such a deliberate omission only heightens his culpability,” she said.

I do wonder about "the intention of the legislature", though, and whether Singapore will, in fact, "enforce the law against every HIV-infected person" who comes to their attention when a newly infected individual is looking for someone to blame for their infection. 

The prosecution of both of these men seems especially unjust since the first man could not have been the source of the complainant's infection and the second man was relying on the complainant to wear a condom.  But since the law is only about non-disclosure and not about risk, or transmission itself, convictions are oh-so-easy, making all HIV-positive individuals extremely vulnerable to prosecution. 

Canada: 2 cases - Alberta man gets three years for non-disclosure; woman refugee arrested and charged in Ontario

A 44 year-old man from Edmonton, Alberta who pleaded guilty to aggravated assault for not disclosing that he was HIV-positive during a one-off consensual encounter with a woman – whilst his viral load was undetectable – has been has been sentenced to three years in prison.

According to the Toronto Sun report, he had been charged with aggravated sexual assault but was "allowed to plead guilty to the lesser offence of aggravated assault."  The report doesn't mention it, but obviously the woman did not test HIV-positive given the insignificant risk of transmission.

Apparently, the man's roommates turned him in.

Prosecutor Avril Herron told court Gilbertson was arrested June 3 after police were called by his roommates, who had come home and found him having sex with the woman and were concerned about his HIV status. Herron said the woman was drunk and initially found passed out and had some problems telling police the details of what exactly had happened.

In words that parallel Nadja Benaissa's recent statement to a Darmstadt court, he told the court that he had "made a bad choice," but said "in no way was it deliberate."

The provincial court judge questioned Gilbertson's guilty plea after he said he didn't mean to do it. However, he admitted he did not tell the woman he was HIV-positive. Gilbertson also told the judge he takes medications for the disease, which he claimed is barely detectable on tests, and said he has a full support team in the community looking out for his needs.

Judge Marilena Carminati appeared to have no sympathy for the man (nor a finer understanding of the impact of treatment on infectiousness – although perhaps a better lawyer would have helped), and as well as sentencing him to three years in prison ordered him to submit a DNA sample for the national DNA databank and, bizarrely, prohibited him from possessing weapons for life.


Meanwhile, a 32 year-old woman of Zimbabwean origin was arrested in Brampton, Ontario on August 10th for allegedly not disclosing that she was HIV-positive "with at least one sex partner on more than one occasion" during sex with a man who has since tested HIV-negative.

Details are sketchy, and oddly, the case only appears to have been reported on New Zimbabwe.com, a UK-based paper for the Zimbabwean diaspora.  The report states that that woman "arrived in Canada from Indianapolis, United States, as a refugee in 2008" but doesn't say when she left Zimbabwe (or why). 

The woman will face aggravated assault charges on September 13th at Toronto College Park courts and is currently out on "stringent bail conditions" that mean she is currently under house arrest.

US: Michigan man gets nine months for HIV exposure

A 21-year-old from Bay City, Michigan, who pleaded guilty under Michigan's HIV disclosure law to having unprotected sex during a one-night stand with a 16 year-old girl without first disclosing that he was HIV-positive has been jailed for nine months. The age of consent in Michigan is 16, so this was not statutory rape.

The Midland Daily News reports that Isaiah Diaz

had unprotected sex with a 16-year-old girl on June 13, and told her the next day that he was infected with AIDS. She talked to her parents, who in turn notified police. The teen was tested for AIDS, but the results of that test are sealed, police said. Diaz was arrested and was arraigned on June 15. The case was bound to the circuit court on July 13. He entered a guilty plea to the offense on Oct. 22. Court records show state guidelines based on the offense and Diaz' previous record called for up to nine months in jail. He was sentenced by Midland County Circuit Court Judge Michael J. Beale to serve nine months in jail with credit for 152 days, to be monitored on probation for three years, and pay a total of $1,250 fines and costs. The Midland attorney appointed to represent Diaz, Lisa Blanton, asked that he be subject to counseling and substance abuse treatment while incarcerated, records show. Beale ordered jail staff to complete a mental health evaluation.

The story was also covered by Todd A Heywood of the Michigan Messenger who highlights that

Some lawmakers in the state House have started talking about possibly revisiting the law, including State Rep. Rick Jones, a Republican from Grand Ledge.

Canada: Hamilton woman get two years house arrest after pleading guilty to HIV exposure following condom failure (update)

Update: November 21st

Robin Lee St. Clair, a woman who used condoms for her one-night encounter, and who revealed her HIV status when the condom broke to allow the man to access PEP, has been sentenced to two years' house arrest, according to a report in the Toronto Sun.

Robin St. Clair, 28, who pleaded guilty to two counts of sexual assault, cried in court today when she was told she would be registered as a sex offender for life and would be made to provide a DNA sample. [...] She will also be on probation for three years after the house arrest.

I originally thought it was just one count, but no - they had sex twice! With condoms!!

The man had intercourse with St. Clair twice and on the second occasion the condom ripped.

In my original post, below, I had wondered whether the judge, Justice Paul Taylor, might actually be a good guy for considering 'just' a 90 day prison sentence. I'm not sure that two years' house arrest is preferable.

But, actually, Justice Paul Taylor is just as irrational as most of the rest of the criminal justice system when it comes to HIV. His comments – that sex with condoms with someone who knows they are HIV-positive but doesn't tell you is unlawful – are not exactly true to the spirit of the Cuerrier decision.

Criminal law has a role to play when people with HIV put the lives of others at risk. No one would voluntarily get the disease," Taylor said. "(The man) was exposed to a risk he shouldn't have been exposed to. If he was told of her status he would have rejected her, which was his decision to make."

Court heard that the man had a 1-in-2,000 chance of contracting the HIV, but remains disease free.

"To him it is still very real and continues to debilitate him," Taylor said. "The melancholy fact is condoms break."

Taylor said St. Clair's actions weren't calculating so he decided to let her serve the time under house arrest.

"She wasn't seeking out men to expose them to the disease," Taylor said. "But she is not blessed with all the intellectual gifts."

Such comments suggest that Justice Taylor needs to reread Cuerrier and reassess if it really means what he thinks it is saying. Cuerrier established that consent to otherwise consensual sex is invalid if a person living with HIV does not disclose this before engaging in conduct that poses a "significant risk" of HIV transmission. Having sex with condoms - even if they do occasionally break – is not a "sigificant risk". A 1-in-2000 chance of acquiring HIV is not a "significant risk".

Yet the careful use of condoms might be found to so reduce the risk of harm that it could no longer be considered significant

Mr Justice Corey, R v Cuerrier (Supreme Court of Canada, 1998)

This is how people have sex in the real world. Having sex with a condom with someone who is HIV-positive, is safer sex not safe sex. That does not eliminate risk, but it is within the bounds of life's normal risks.

I'm certain that Canadian advocates will be outraged and disappointed with Justice Taylor.

Since Ms St Clair pleaded guilty, there can be no appeal, and this will not create a legal precedent. The lesson to be learned is that people who are charged under Canada's HIV non-disclosure law need good legal advice. If she had pleaded not guilty and this had gone to trial, she would have been found innocent.

However, what Canada really needs is prosecutorial guidelines like those produced in England & Wales, that set out where the Crown should prosecute based on current law. This case should never have been prosecuted in the first place.

Original post: September 17th

Is the tide finally turning?

Following yesterday's revelation that a US judge has reduced the sentence for non-disclosure during a one-night stand from 25 years in prison to five year's probation, a judge in Toronto is debating whether to sentence a 28 year-old woman from Hamilton, Ontario to 90 days in prison or give her a conditional discharge for the same 'crime'.

Robin Lee St. Clair pleaded guilty in June to two counts of aggravated sexual assault for not disclosing her HIV status to a man she met for a one-night stand in 2007. (At least this was only charged as aggravated sexual assault; two men currently face attempted murder charges for exactly the same 'crime')

Now, the Toronto Sun reports what happened during her sentencing hearing before Ontario Court Justice Paul Taylor earlier this week. In the article, commentator/journalist Michele Mandel writes:

Should the Hamilton woman be sent to jail for having sex with a Toronto man without telling him she has HIV? Or has the 28-year-old already paid her debt to society -- her photo plastered on the front page of her local newspaper, she and her son kicked out of the community pool? Is she a criminal or just a coward afraid to divulge her terrible secret as she looked for love? Should she be punished? Or rehabilitated? It depends on which side of the Finch Ave. courtroom you sat on yesterday.

She then highlights, as I did in my previous blog posting on this case, that despite the police claiming she posed a "huge threat", only on complainant has ever appeared.

BROKEN CONDOM

The article also explains, for the first time, what happened between Ms St. Clair and the complainant. It seems that Ms St. Clair did disclose her HIV status to the man - but after the condom they were using broke. This is what all responsible HIV-positive individuals should do in such a situation, so that the HIV-negative individual can access PEP. But rather than thank her for the information, the man ran to the police.

The most worrying thing about this case is the fact that the Crown decided to prosecute, despite this man being the only complaint.

Crown Tim Morgan asked the judge to send the single mom to jail for 90 days as both "deterrence and denunciation" of her exposing her victim to possible infection without his consent. The fact that she insisted on a condom doesn't mitigate what she did, the prosecutor added. "It's not good enough -- in fact, it's criminal -- to just use a condom and be absolved of your responsibility. You have to disclose."

Mr Morgan is dead wrong, but it seems that Justice Taylor did not pick up on the difficulties with the law around issues of HIV disclosure and "significant risk". This issue - whether HIV-positive Canadians must disclose prior to sex even with a condom - has not yet been decided by the Supreme Court, but it is not definitively considered to be "criminal", as he asserts.

Writing in the May 2009 issue of HIV/AIDS Policy & Law Review 14(1), the Canadian HIV/AIDS Legal Network's Alison Symington notes:

The majority judgment was clearly not imposing a blanket obligation on persons living with HIV to disclose their status in every sexual encounter. What was not clear is where the line would be drawn between activities requiring disclosure and those not requiring disclosure. For example, Justice Cory [writing for the majority in the Cuerrier decision] contemplated that disclosure might not be required with respect to intercourse for which a condom was used, but did not make an explicit ruling on the issue.

Ms St. Clair's lawyer, Kim Edward, argued that the prefered sentence would be a conditional discharge,

insisting her client is a "simple" woman who can neither read nor write very well, a good mother and community volunteer who is educating herself -- better late than never, it seems -- about the moral and legal responsibilities that come with the HIV she has had since 2003. "This is not one of those individuals who is callously and intentionally infecting others," Edward told the court.

IMPACT STATEMENT

I'm always interested in hearing what the impact of having a one-night stand with someone who you discover is HIV-positive must be like. I mean, surely if you are having a one-night stand you must know that there is a chance that the person you are sleeping with will have HIV. At least one-in-four people with HIV don't know they have the virus, so even if they wanted to disclose this before sex, they couldn't.

Ms St. Clair's 'victim' doesn't appear to have considered this; and he wasn't at all grateful that she disclosed following the breakage of the condom, which would have allowed him to seek medical attention to reduce the risk of becoming HIV-positive.

While he remains HIV-negative, he writes in his victim impact statement entered in court yesterday that he is plagued with embarrassment and will never be the same. "I am no longer able to sleep through the night due to anxiety and stress," he wrote. "I am stuck in a box ... I don't care about anything anymore. The year of doing blood work to make sure I was OK has affected me the most. The waiting period of a whole year felt like an eternity to me. Waiting to see if I was affected by the disease has had the most fearful impact on my life. I am still not 100% sure in my mind that I am OK."

I am constantly amazed that people who have been exposed to HIV via, say, a broken condom, or a bite, agonise over their extremely low risk for much longer than is necessary. The latest generation HIV tests can pick up antibodies within ten days, and experts now agree that the 'window period' between infection and detection is less than one month. Why did this man's uncertainty last a year? Is it really Ms. St Clair's fault that this man worries excessively? And what exactly is he embarrassed about? If I were him, I'd be embarrassed that I complained the police about something that was clearly as much his responsibility as Ms St Clair's following the accidental breakage of a condom.

Finally, I must comment on - and protest - the language used by Ms Mandel in the article, who uses the usual 'deadly weapon' cliché to describe a consensual sexual act between two adults.

[Ms St Clair is] like a woman who has played Russian roulette with at least one man's life...she carries a weapon as lethal as any gun.

Robin Lee St. Clair will finally learn her fate on October 28th.

US: Gay Iowa man who faced 25 years for HIV exposure released from jail (updated)

Update: 17th September. Nick Rhoades was interviewed by Lynda Waddington in the Iowa Independent. He was released last Friday (11th) following a reconsideration hearing that had been allowed by District Court Judge Bradley Harris during Mr Rhoades' sentencing.

He is courteous and remorseful to the complainant in his case.

“There is no denying the fact that there was a victim involved and that [this] derailed his life for several months of uncertainty,” said Rhoades, referencing the consensual encounter he had with another man in early summer 2008 that led to his ultimate conviction.

“It’s something that I think anyone who is infected has been through. It’s frightening — not only for him, but for his family and friends. It disrupts everything in your life while you are going through that time of just not knowing. It can be terrifying. I know what it was like, and I never would have wished it on anyone else. So, I do understand exactly why he would feel the way that he did and does.”

But he also questions the 25 year sentence handed down four months ago that gave him "a taste of prison".

“When compared to other crimes and other laws on the books, it seems [my sentence was] a stiff penalty — especially considering the fact that it wasn’t considered a violent crime, that it was a consensual situation between two adults and that there was no infection [of the victim] showing up to this day,” he said. “It does seem that 25 years is excessive to me.”

He also says that although he has been humiliated by his HIV status being plastered all over the media, it is also somewhat liberating.

“It is the most stigmatized medical condition that I can think of,” said Rhoades, adding how humiliating it was for his status to be “strewn across the media” and become fodder for the gossip mill....“In some ways this has been liberating,” Rhoades said, indicating that before the court case he had only openly shared such private portions of his life with family and close friends. “I’m not at all proud and I do take responsibility for my own actions and mistakes. But there is no denying that it is all out there now.”

Original post: Sept 16th. Breaking news. An HIV advocate working to release Nick Rhoades, 34, from prison after he was sentenced in May to 25 years for HIV exposure following a one-night stand with another man, has just informed me that Mr Rhoades is out of jail!

The advocate, Donald Baxter, tells me in an email:

We wrote letters to the judge and something must have clicked—his “victim” wasn’t even allowed to give a victim’s impact statement. Nick still has a long hard row—five years probation, sex offender registry, unsure career future/path. But at least he’s not stuck in jail for 25 years.

Mr Baxter was co-incidentally featured in the Iowa Independent yesterday, arguing against Iowa's draconian HIV-specific laws.

“I think the law we have here is a sledgehammer that is mostly looking for a thumbtack. I think the latest thumbtack was Nick Rhoades,” Baxter said in reference to a Black Hawk County case earlier this year where a 34-year-old man was sentenced to 25 years in prison following a one-time consensual encounter that did not result in transmission.

“I get no impression from him other than the fact that he is probably a 34-year-old man who is not a paragon of responsibility. He obviously has had some substance abuse issue, which is actually pretty common in the gay community. He is not a criminal, and his sentence angers me on a couple of fronts. He’s probably never transmitted HIV to anybody, let alone the person who made this complaint against him. As a taxpayer in the state of Iowa I also realize that we are probably spending between $65,000 and $70,000 per year to keep him behind bars. That pisses me off. That would piss me off if I weren’t HIV positive.”

I'll update again with more details when I get them.

Canada: Toronto man arrested for unprotected sex with woman

A 28 year-old man from Toronto has been arrested and charged with aggravated assault after he allegedly had unprotected sex with a woman without disclosing his HIV status.

In what has become an unnervingly commonplace consequence of an arrest for HIV exposure in Canada, Toronto police have provided the man's name and photo to local media because "they are worried there may be more victims". It also conviently serves as a 'fishing expedition' for more complainants without the police having to do too much.

Police are releasing [the man]'s photo and urging anyone who has had sexual contact with him to seek medical advice and contact police.

According to the report in the Toronto Star, the man, who was diagnosed in 2005, corresponded with the complainant online for four years before they met for what appears to be a one-night stand.

Although the report does not explain the other charges, he is also charged with "two counts of failing to comply with probation and one count of common nuisance."

Canada: Hamilton woman pleads guilty to HIV exposure

A 28 year-old woman from the same Ontario town as Johnson Aziga yesterday pleaded guilty of one count of aggravated sexual assault for not disclosing her HIV status to a man she met for a one-night stand in 2007. She will be sentenced in August.

The case was reported today in The Toronto Star and highlights the real problems HIV-positive Canadians are facing due to the current oppressive, discriminatory – and ultimately harmful – legal obligation to disclose before sex. When the woman was arrested in March 2007, police held a press conference saying the woman posed "huge threat". According to the CBC website on the day of the press conference:

Det. Joseph De Lottinville called [the woman] "a huge threat" to public safety, amid police fears that she deliberately slept [my italics] with a number of people without revealing that she had HIV, the virus that causes AIDS.

Police allege that [she] has known of her HIV status since March 2003, but didn't follow the legal requirement that people with HIV disclose the condition to sexual partners.

Officers said [she] is believed to have frequented several bars in the Greater Toronto Area, specifically in Hamilton, Brantford and Toronto, particularly in its downtown Entertainment District.

More than 10 men who allegedly had sexual contact with her are being interviewed by police.

This is phrased slightly differently on CityNews.ca, published the same day:

The 26-year-old from Hamilton was arrested on Sunday and police are alerting the public of her case. They allege she deliberately withheld [my italics] her important health information in order to have sex with men she met in bars in and around the GTA.

Detectives say [the woman] frequented bars in Hamilton, Brantford and Toronto on a regular basis and had sex with men she met at those establishments. She was diagnosed with HIV four years ago.

[She] deliberately failed to tell [my italics] one Toronto man about her HIV-status, according to police, and allegedly did the same to other men in order to have sex with them, often unprotected. Authorities are urging anyone who's had sex with her to seek medical attention immediately.

"From what we've learned, she will disclose it sometimes and she won't disclose it on other times," Det. Joseph De Lottenville said Thursday.

The use of 'deliberate' in these different ways is really interesting. The first allegation that she "deliberately slept with a number of people without revealing that she had HIV" suggests that she intended to infect these men. However the second allegations, that she "deliberately failed to tell" one man that she had a one-night stand with that she was HIV-positive, is purely about nondisclosure. The knee-jerk reaction of the police was to create the myth of a female 'HIV predator' when the reality was that she and another man agreed to have (or probably did not even discuss) unprotected sex, putting themselves equally at risk - she of infecting another to HIV, he of becoming infected with HIV. I assume the man had the capacity to protect himself. Did he really need to be specifically warned about the risks? Why, then, is he is not held responsible for putting himself at risk?

And so, even after police released the woman's name and photo for their 'fishing expedition', and even after interviewing more than ten of her other past sexual partners, she was still only charged with one count of aggravated sexual assault for nondisclosure. How then was this woman "a huge threat"? Aren't the ten or more men who slept with her without using condoms who will have gone on to sleep with others, much more of a threat?

Canada: Ontario woman acquitted of criminal HIV exposure

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.

Woman acquitted of sex assault TheSpec.com - Local - Woman acquitted of sex assault

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.

HIV accused denied sex claims TheSpec.com - Local - HIV accused denied sex claims

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.

Woman hid her HIV status, court hears TheSpec.com - Local - Woman hid her HIV status, court hears

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.

Canada: Another guilty verdict in Ontario

Owen Antoine, a 41 year-old HIV-positive man, has been found guilty of reckless HIV transmission in an Ontario court. It took the jury just five hours to deliver the verdict.

Antoine has been found guilty of aggravated sexual assault, sexual assault, and criminal negligence causing bodily harm. The charge of administering a noxious substance was dropped by the Crown. He will be sentenced April 11th.

The case has been reported in detail in the St Thomas Times Journal over the past two years. I include highlights of the reports below, in reverse chronological order.

What seems surprising is the lack of any real evidence that it was Mr Antoine who infected the complainant. It's not even clear that they had sex, never mind unprotected sex (and although HIV can be transmitted via one heterosexual act, the odds are slim.)

The complainant does not appear to have been asked about her sexual history (why, for example, did she have an HIV antibody test in March, before she met Mr Antoine?) and there appears to have been no virological or other evidence submitted.

Perhaps this lack of information in the public domain is due to reporting restrictions?

HIV-infected man guilty
To be sentenced April 11
Saturday February 02, 2008
By Patrick Brennan Times-Journal Staff

A 12-man Superior Court jury deliberated for more than five hours Thursday before finding a 41-year-old Aylmer man guilty of aggravated sexual assault, criminal negligence causing bodily harm and the included offence of sexual assault.

Owen Antoine is to be sentenced April 11, Justice Johanne Morissette ordered.

[...]

On Thursday, Crown attorney Kim Johnson told court the Crown was not proceeding on the fourth charge against Antoine, administering a noxious substance.

Thursday consisted of closing arguments from both the Crown and defence, and the charge to the jury before they retired for final deliberations just after 3 p.m.

[...]

Defence counsel James Battin told the jury that while the victim had some animosity toward Antoine over what happened, it did not appear to flow both ways. He urged the jury to read the transcript carefully from a videotaped statement Antoine gave to Aylmer police. While the Crown suggested it was an open admission of guilt, Battin did not agree. He said Antoine never wavered on the stand during his testimony.

In her closing arguments, Johnson urged the jury to apply common sense in weighing the evidence. She said it was the Crown’s position Antoine admitted having sex with the woman.
She downplayed a suggestion Antoine was not in his right mind when he was questioned by Aylmer police. “He never appears upset on the video,” Johnson said.

“The real issue is whether events alleged took place,” Morissette said, beginning her summary of the law and the evidence. She reminded the jury that for a conviction on sexual assault, there had to be an application of force intentionally and against the woman’s will. “Consent requires knowledge on her part about what is going to happen,” she explained. To prove aggravated assault, the evidence must support the principle that the force used in an assault endangered the victim’s life, Morissette said.

After retiring to deliberate, the jury returned once for clarification on legal points.

A pre-sentence report has been ordered for Antoine.

No sex
Antoine’s denies intercourse with accuser
Friday February 01, 2008

By Kyle Rea Times-Journal Staff

Owen Antoine testified Wednesday that he never had sexual intercourse with a woman who later told Aylmer police they had sex and he failed to disclose his HIV status. But in a video statement given shortly after his arrest in November, 2006, and played for a second time before the Superior Court of Justice yesterday, Antoine told an Aylmer police officer that he slept with her while they both were drunk.

Antoine, 41, took the stand for the second time on the third day of his jury trial in St. Thomas court.

[...]

During the first day of his testimony Tuesday, Antoine told the court he met with the complainant at an Aylmer bar in April, 2006. They each had four drinks, he testified, and he walked home with her later. She invited him inside and he fell asleep on the couch, with her sitting in a chair opposite from him. He awoke to find the woman gone.

Continuing his testimony on Wednesday, Antoine told the court he spoke with the complainant a week after meeting her for drinks and was invited over to her place for dinner with herself and her children. Antoine said they had chicken and pizza. He testified that a man, whom he identified as the woman’s boyfriend, called from Trinidad while he was there. He said he didn’t hear from the woman until August when she called him and said she had something important to talk about. After he was unable to meet with her, Antoine said he didn’t hear from her again.

“At any time did you have sex with her?” queried defence lawyer James Battin.
“No sir,” Antoine responded, testifying he didn’t go to a bar in St. Thomas, nor did he wake up next to her in bed.
“Did you put anything into her drink at the bar in Aylmer?” asked Battin.
“No sir, I would never do something like that,” he responded.

In her cross-examination, assistant Crown attorney Kim Johnson questioned Antoine about the complainant’s testimony. When asked if the woman was mistaken he responded, “Yes ma’am.”
“I never had sex with her,” he said.
“Do you remember telling the officer you did?” Johnson asked.
“No ma’am.”

VIDEO TAPE
A video statement, recorded on Nov. 18, 2006, between Antoine and Const. Marsha Geling, of the Aylmer Police Service, was played for the second time in court. It was first played during testimony Monday. On the tape, Antoine was heard to say that he slept with her once and both of them were drunk. When asked about this on the stand, Antoine told the court he meant that he slept by her on the couch.
Again on the tape, Geling asked Antoine if he recalled using protection.
“I can’t really remember. I think I did,” he responded.
“But you’re not sure,” she asked.
“To tell you the truth, no,” Antoine said.

When asked, in court, by Johnson about his answer regarding protection Antoine testified he couldn’t recall telling the officer that. He said he was confused while giving his video statement.
“It was a long night. I didn’t have much sleep. I wasn’t in the right state of mind.”
“You didn’t tell the officer that at the time?” Johnson asked.
“No ma’am,” Antoine responded.

In re-examination by Battin, Antoine said he was upset and hadn’t gotten any sleep from the time he was taken into custody in the evening on Nov. 17 and around 7:30 a.m. on Nov. 18 when he was interviewed by Geling.

Woman knew about HIV, says Antoine
Invited inside, says accused
Thursday January 31, 2008

By Kyle Rea Times-Journal Staff

Owen Antoine testified Tuesday he told the woman he had out for drinks at an Aylmer bar that he had HIV. But, he testified before the Superior Court of Justice on Tuesday, she already knew about it. She’d heard it from her friends.

Antoine, 41, took the stand yesterday in his own defence during the second day of a jury trial in St. Thomas court.

Antoine testified yesterday he met the complainant in 2006 at her workplace. He said she approached him on the street in April, 2006, and wanted to talk about Trinidad, Antoine’s home country. He said they exchanged numbers and, about two weeks later, arranged to meet at an Aylmer bar.

That night, Antoine said, he and the complainant each had four drinks -- rye and Coke.
He testified the woman spoke about a “guy she was going around with.” When asked by defence lawyer James Battin if he bought shooters, Antoine told the court he did not.

At one point during his testimony, Antoine said he told the complainant he had HIV.
“She said she already knew it. She said she had friends that know me and told her.”

They left the bar around 1 a.m., Antoine testified, and walked to the woman’s residence. He said she invited him inside, whereupon he sat on the couch, the woman in a chair opposite him, while they talked some more. “I knocked out on the couch,” Antoine said. He woke up the next morning and didn’t see the complainant, so he left to retrieve his truck -- still parked at the bar.

He said he spoke over the phone with her later that day -- and again a few days later.
Antoine’s testimony is scheduled to continue today.

MORE WITNESSES
Earlier on Tuesday, assistant Crown attorney Kim Johnson presented two more witnesses before wrapping up the Crown’s case. Dr. Anurag Markanday, identified as an expert witness in infectious disease and HIV detection, told the court HIV is detectable in tests between six weeks and six months from the time of infection.

Markanday was presented with two sets of test results from the complainant and asked to analyze them on the stand -- one was from March, 2006, the other June, 2006. He said the March results didn’t show the antibodies present with HIV infection. The June test “shows evidence of HIV infection.”

“It is possible, very likely, she acquired it from January ... until late April, early May,” he said.
Markanday told the jury there’s no cure for HIV, but drugs do slow the process of the disease.
“It’s like a death sentence ... while we can keep the virus suppressed, we are going to run out of options.”

Once diagnosed, the average lifespan of a person is eight to 10 years, he testified.

During cross-examination, Battin asked Markanday if it were possible to tell who gave HIV to someone.
“You can’t say he (Antoine) is the one who gave her HIV?” Battin queried.
“No, I can’t,” Markanday answered.

Dr. Sharon Baker, acting medical officer of health for Elgin, testified regarding the Section 22 order under the Health Promotion and Protection Act which Elgin-St. Thomas Public Health issued against Antoine in June, 2006. “We felt the only way to remind him of his duty of status was to issue the order,” she said.

Lights out after shooter
Awoke to find she’d had sex with HIV-infected man
Wednesday January 30, 2008

By Kyle Rea Times-Journal Staff

Drinking a shooter was the last thing she remembered. It was bought for her, she testified Monday in Superior Court of Justice, by a male acquaintance at a St. Thomas bar in April, 2006. The next morning, she awoke to find the same man beside her in bed. She asked.
They’d had sex. Two months later she was diagnosed with HIV and her life changed forever.
“I feel cheated, like my life has been ripped away from me completely,” the woman, 29, told the St. Thomas court. Her identity is protected under a court-ordered publication ban.

She was one of four witnesses who testified during the opening day of a jury trial for Owen Antoine, 40.
[...]

Testimony Monday from health officials was that Antoine was diagnosed with HIV in December, 2004. He remains in custody at the Elgin-Middlesex Detention Centre. The trial is expected to last three or four days.

The complainant testified she met a man named “Owen” -- she didn’t know his last name at the time -- in early 2006. She said one day in April, 2006, he contacted her, said it was an emergency and that he needed to speak with her. She agreed to meet him, but wasn’t interested in a relationship, she testified.

Inviting her to talk inside his truck, he drove with her to a downtown St. Thomas tavern.
Once there, the woman said, he bought her a rye and Coke which she didn’t finish. At one point, she went to the washroom and, upon returning, a shooter was sitting on the table. She told the court that she drank it, after he prompted her to do so. “I don’t remember anything after that. I don’t remember leaving the bar, I don’t remember how I got home,” she said. “I woke up in the morning and the (man) was right beside me in bed.” The woman testified she asked if they had sexual intercourse and he said yes. She asked if protection was used, and was told it was not.

HIV TEST
In June, the woman told the court, she went to Elgin St. Thomas Public Health and tested positive for HIV. A similar test done in March, 2006, came back negative, she said.
The woman later confronted the man and asked if he had HIV. She testified that he told her he did not. The incident was then reported to Aylmer police.

Const. Marsha Geling, of the Aylmer Police Service, testified she received a description and the name “Owen” from the woman. Through her investigation, Geling told the court, she discovered an Owen Antoine who worked for an area construction company.

A video statement, recorded shortly after Antoine was taken into custody on Nov. 17, 2006, was played Monday before the court. In the video, Antoine told Geling he didn’t remember much of the night in question. He said he recalled going to a bar in Aylmer with the complainant, where he had four drinks and she had “about the same.”

Geling said she obtained a search warrant for Antoine’s medical records from the health unit in Oxford county, where he had previously lived.

Ruth Ferris, a public health nurse for Oxford County Public Health, told the court Antoine tested positive for HIV in December, 2004. She testified the health unit met with Antoine and explained his obligations -- that he had to disclose his HIV status to sexual partners and must use condoms.

In cross-examination by defence lawyer James Battin, Ferris said Antoine told health officials he was using condoms. According to testimony from director of health protection Laura McLachlin, Elgin St. Thomas Public Health became involved in May, 2006, when an Elgin county woman tested positive for HIV, and named Antoine as a sexual partner.

McLachlin said they issued a Section 22 order under the Health Protection and Promotion Act, which places restrictions on individuals to protect the public from communicable diseases.
“We were concerned he was not telling partners about his HIV infection,” she said.

Arraignment hearing for accused in HIV case
Owen Antoine, 40, made a brief appearance via video link in St. Thomas court
Thursday March 08, 2007

By Kyle Rea Times-Journal Staff

An arraignment hearing has been set for an Aylmer-area man charged with aggravated sexual assault. Owen Antoine, 40, made a brief appearance via video link in St. Thomas court Tuesday, where his lawyer, Jim Battin of Tillsonburg, Ont., asked for an arraignment hearing on April 3.

Battin is Antoine’s new lawyer and listed as the official counsel of record after his previous lawyer, Paul Carter, was removed on Feb. 13.

[...]

Antoine is charged with five offences, including sexual assault and criminal negligence causing bodily harm. He has twice been denied bail -- first by the Ontario Court of Justice on Nov. 24 and by the Superior Court of Justice during a bail review application on Jan. 19. Details of both hearings are under a court-ordered publication ban. Antoine remains in custody.

HIV-positive - Nov. 21

Tuesday November 21, 2006

By Kyle Rea Times-Journal Staff
AYLMER -- Aylmer police and the Elgin-St. Thomas Health Unit issued a request Monday that anyone who’s had sexual relations or sexual contact with Owen Antoine, 39, contact them as soon as possible.

Antoine, who lives in the Aylmer area, was arrested Friday and charged with aggravated sexual assault after a woman told police he failed to tell her he had the human immunodeficiency virus (HIV).

Police believe Antoine has engaged in unprotected sex with several women while knowing he was HIV positive. Only one complainant has come forward so far. HIV damages the immune system and leads to acquired immunodeficiency syndrome (AIDS), for which there’s no cure.

Police say Antoine tested positive for HIV in 2004 -- and someone who doesn’t inform their partner of this status could be charged with aggravated sexual assault under the Criminal Code of Canada. “If (someones) does have HIV and does not inform their partner, yes it’s (aggravated sexual assault) because they’re endangering the life of another person,” said Const. Marsha Geling, of the Aylmer Police Service. “This is the first case of this sort in Elgin county. This is completely new ground for everybody.”

Antoine remains in custody and was scheduled to appear for a bail hearing this morning in St. Thomas court.

Anyone who’s had any form of sexual contact with Antoine is asked to get in touch with the health unit at xxx-xxx-xxxx or the Alymer police at xxx-xxx-xxxx.