US: (Update) Nebraska passes unscientific, stigmatising body fluid assault law

Update: June 7 2011 

I've just learned via my colleagues at the Positive Justice Project in the US, that The Assault with Bodily Fluids Bill (LB226) introduced into the Nebraska State Legislature by Senator Mike Gloor recently passed into law with no amendments.

For further background on the bill, and Sen. Gloor's motivation for introducing it, read this excellent piece from Todd Heywood in The Michigan Messenger.

“The entire bill is hinged on gross ignorance about the actual routes and risks of HIV transmission,” says Beirne Roose-Snyder, staff attorney for the Center for HIV Law and Policy in New York City. “Nowhere in the nearly three-decades-long history of the epidemic has a corrections officer been infected by the routes described in the bill. As for serious misinformation, there is real harm caused to law enforcement staff who themselves may be living with HIV, and to those who are not but who are being sold an unsound bill of goods on how to protect themselves, by placing a legislative imprimatur on the unfounded fears about how HIV and other diseases are spread. It also clearly has a negative impact on the way people with HIV are treated in and out of the criminal justice system, and has resulted in people serving decades of time behind bars on the basis of ignorance and hysteria.”

This latest development is extremely disappointing, and suggests that the trend of passing new laws that inappropriately criminalise people with HIV (and, sometimes other blood-borne infections such as hepatitis B or C) in a misguided attempted to protect police or other public safety officers is not reversing. 

A similarly unscientific and stigmatising bill – proposing mandatory testing and/or immediate access to medical records of anyone who exposes their bodily fluids to an emergency worker – has recently been proposed in British Columbia, Canada. Read this letter from the BC Civil Liberties Association about why the bill provides a false sense of security and may well be unconstitutional.


Original post: February 1st 2011

This Friday, February 4th, the Nebraska State Legislature will debate The Assault with Bodily Fluids Bill which would criminalise striking any public safety officer with any bodily fluid (or expelling bodily fluids toward them) and includes a specific increase of penalty to a felony (up to five years and/or $10,000 fine) if the defendant is HIV-positive and/or has Hepatitis B or C.

The Bill ignores the fact that HIV cannot be transmitted through spit, urine, vomit, or mucus; punishes the decision to get tested for HIV; and will not keep public safety officers safer, but rather will reinforce misinformation and stigma about HIV.

Download the full text of Nebraska Legislative Bill 226 here

Two major problems with the Bill are:

1. The proposed language in Sec. 2(3) is contrary to science

• None of the actions criminalised in this Bill pose a real risk of HIV transmission. Spitting while HIV-positive poses no risk of HIV transmission. The Centers for Disease Control has unequivocally stated that spitting cannot transmit HIV. Other “body fluids” identified in the Bill - including mucus, urine, and vomit, absolutely cannot transmit HIV.

2. Codifying the breach of doctor /patient confidentiality in Sec. 2(5) is extremely serious, and should not be undertaken with no public health benefit

• It is extremely important for public and individual health for people with HIV to get tested at the earliest opportunity, start timely treatment, and stay on treatment. This all hinges on having a good relationship with their doctor or health care provider. Forcing doctors and health care providers to reveal private health information, or even testify about it, will have a negative impact on patient trust of the health care system and willingness to remain engaged in HIV care. The plain language in Sec. 2(5) would force any person charged under this statute to be tested for the identified viruses, or force the opening of their medical records for previous testing results.

The Positive Justice Project (PJP) has produced a set of talking points (download here) that summarises the problems with the Bill, and with HIV-specific legislation in general.  PJP highlights that the wording of the Bill is so broad that it would allow for the following Kafkaesque situations:

• If a person with HIV accidentally vomits in the direction of a medical officer in a prison infirmary, they could be sentenced to five more years in prison.
• If someone accidentally sneezes in the direction of a police officer, a judge must grant a court order for their medical records and they may be subjected to involuntary HIV antibody and hepatitis B and C antigen testing if the police officer decides to press charges.
• An inmate who spits or vomits in the direction of a corrections officer, even without hitting or intending to hit the officer, can be forcibly tested for HIV and hepatitis and if found to have any of these viruses, charged with a felony.
• An adolescent with HIV or hepatitis held in a juvenile detention facility who spits while being restrained by a corrections officer, or while arguing with a guidance counselor, could wind up serving five years in an adult prison facility.

PJP asks anyone in the United States who cares about this issue to contact their State representative (using the talking points to highlight the many problems with the Bill) and specifically encourages any networks or individuals in Nebraska to contact:

State Senator Mike Gloor, who introduced the Bill. 
District 35
Room #1523
P.O. Box 94604
Lincoln, NE 68509
Phone: (402) 471-2617
Email: mgloor@leg.ne.gov

Sandra Klocke
State AIDS Director
Office of Disease Control and Health Promotion
Nebraska Department Health and Human Services
301 Centennial Mall South, 3rd Floor
P.O. Box 95026
Lincoln, Nebraska, 68509-5044
Phone: 402-471-9098-
Fax: 402-471-6446
sandy.klocke@nebraska.gov

and/or

Heather Younger
State Prevention Manager
Disease Prevention and Health Promotion
HIV Prevention
Nebraska Department of Health and Human Services
301 Centennial Mall South
Lincoln, Nebraska, 68509
Phone: 402-471-0362
heather.younger@nebraska.gov

Canada: British Columbia man guilty again following retrial (update)

Update August 24th 2010


Adrian Nduwayo, has been found guilty again of five charges of aggravated sexual assault involving five women, three of whom subsequently tested HIV-positive, following a retrial at the BC Supreme Court.

He was oringally guilty of the same charges, plus one of attempted aggravated sexual assault and one of sexual assault in 2005 and sentenced in 2006 to 15 years in prison.  This time, he was acquitted of those two other charges.

Details of the reasons for the original appeal are in my original post, below.

According to the report in Vancouver's mid-market tabloid, The Province, the retrial hinged on the issue of lack of consent due to non-disclosure.

Justice James Williams said that, although the sexual relations were "ostensibly consensual," that consent was taken away when Nduwayo failed to tell the women that he was HIV positive. "The issue of consent is not as simple as yes or no," Williams said. "It's more complicated than that." In the five cases where Nduwayo was convicted, Williams said he believed that each woman would not have had sex with Nduwayo if they had known about his HIV. He was also satisfied that their lives were endangered by Nduwayo's actions.

In the reports of the original trial, below, Mr Nduwayo testified he always used condoms and didn't need to disclose. The complainants said that he didn't always use condoms. It is unclear whether Justice Williams considered the issue of condom use as reducing the risk of HIV transmission to below Cuerrier's threshold 'significant risk'. If not, there's may well be further confusion regarding condom use and obligations to disclose in Canada that can only be satisfied with the production of police and prosecutorial guidance.

Sentencing submissions will take place on September 10.


Original post June 23rd 2008

An HIV-positive British Columbia man who was found guilty in 2005 on five counts of aggravated sexual assault (for HIV exposure), one of attempted aggravated sexual assault and one of sexual assault, and sentenced in 2006 to 15 years in prison, has won an appeal against his original trial and will be retried.

According to the report in the Bugle-Observer, Adrian Nduwayo's lawyer successfully argued that the jury was not properly instructed to consider each count separately and not to use evidence from one count when deciding guilt on others, compromising his right to a fair trial.

I have also reprinted a couple of articles published at the time of Mr Nduwayo's original guilty verdict and sentencing, for background, below. Interestingly, although three of the complainants subsequently tested HIV-positive, Mr Nduwayo was not tried for criminal HIV transmission - and it's not clear from the reports why that was the case.

Appeal court orders new trial for HIV-positive B.C. man convicted of sex assaults
Wednesday June 18th, 2008
THE CANADIAN PRESS

VANCOUVER - The B.C. Court of Appeal has ordered a new trial for an HIV-positive man who was convicted of sexually assaulting several women for having unprotected sex with them.
Adrian Nduwayo was given a 15-year sentence in 2005 for five counts of aggravated sexual assault, one of attempted aggravated sexual assault and one of sexual assault.
The incidents involved seven different women who said Nduwayo had sex with them without telling them he was HIV-positive and without a condom, while he insisted he did use protection.
But Nduwayo appealed his convictions, arguing that the jury was not properly instructed to consider each count separately and not use evidence from one count when deciding guilt on others.
The court of appeal agreed, saying the trial judge's charge to the jury didn't include adequate cautions on that issue.
The court says the fairness of the trail was compromised and has ordered a new trial.

Jury finds B.C. man guilty of spreading HIV
Wed. Dec. 14 2005

CTV.ca News Staff

An HIV-positive B.C. man was found guilty Tuesday night of committing sex crimes for having unprotected sex with women to whom he did not reveal his condition.
A jury in Westminster, B.C. convicted Adrien Nduwayo, 36, of five counts of aggravated sexual assault, one count of attempted aggravated sexual assault and one count of sexual assault.
"The message this sends I think is when you are HIV-positive you have a positive duty to disclose that fact to any perspective partners that you have," Crown counsel Andrew MacDonald said, minutes after the verdict was released.
He said that all of the women who testified against their former lover showed "tremendous amounts of courage and fortitude."
The charges relate to Nduwayo's failure to disclose his virus and engage in unprotected sex with seven women between 2000 and 2003.
Three of those women now have HIV, the virus that causes AIDS.
During the trial, court heard that Nduwayo carried on affairs, and slept with more than one woman at the same time.
Nduwayo contends he always wore condoms to protect his sexual partners and that he didn't have a legal obligation to disclose his condition to his partners.
But some of his former lovers said they had to insist that he wear them -- and that even then he often did not.
Defence lawyer Paul McMurray said outside the court that Nduwayo's defence was that all of his sexual partners in question were willing partners and that the fact he used a condom was sufficient in law to maintain their consent.
Nduwayo has said he didn't tell some of his lovers that he was HIV-positive because they didn't ask.
Some of them found out about Nduwayo's condition when they saw news reports that the police were looking for him for allegedly spreading the virus, court heard.
"I think we're dealing with an area where there was, and is, some uncertainty," McMurray said outside court.
"Everybody I think accepts that you're supposed to disclose and you're supposed to wear condoms but this falls short of that and that's the difficulty here."
No date has been set for a sentencing hearing.

B.C. man sentenced to 15 years for spreading HIV

Fri. Mar. 3 2006

CTV.ca News Staff

An HIV-positive man was sentenced to 15 years in prison for having unprotected sex with seven women to whom he did not reveal his condition.
Before he was sentenced in B.C. Supreme Court in New Westminster, Nduwayo was permitted to address the court.
When he stood up, he went on a lengthy tirade -- speaking directly to his accusers and reducing some to tears.
"I feel very bad for these girlfriends who were infected. I did not mean to infect them," Nduwayo said.
Later, he added: "One day I will prove my innocence."
Justice John Truscott sentenced Nduwayo to 15 years after deducting two years for time already served.
In December, Nduwayo was found guilty of five counts of aggravated sexual assault, one count of attempted aggravated sexual assault and one count of sexual assault.
"The combined effect of the number of counts that we were dealing with in this case, resulted in the sentence being longer than any others that have been previously been imposed," Crown counsel Andrew MacDonald told CTV Vancouver.
Nduwayo was accused of deceiving sexual partners about his HIV status and deliberately engaging in unprotected sex between 2000 and 2003. Three of those women now have HIV, the virus that causes AIDS.
"Clearly the complainants who have been infected with the HIV virus have had a serious and devastating toll taken on their lives," MacDonald said.
During the trial, court heard that Nduwayo carried on affairs, and slept with more than one woman at the same time.
Nduwayo contends he always wore condoms to protect his sexual partners and that he didn't have a legal obligation to disclose his condition to his partners.
But some of his former lovers said they had to insist that he wear them -- and that even then he often did not.
Meanwhile, some AIDS groups argue that cases like Nduwayo's should not be criminalized.
"We feel that criminalization has the potential to deter people from testing," said Wayne Campbell, with the British Columbia Persons with AIDS Society. "We encourage people to get tested, every sexually active adult, should be tested every six months."
With a report from CTV Vancouver's Michele Brunoro

Canada: Vancouver police hunt one man, add more charges to another

In Vancouver, two different men have been accused of not disclosing their HIV-positive status prior to sex with their female partners. Local media are having a field day.

The first, a Caucasian man in his late 20s, was arrested on May 19, according to a June 4th CBC News report following which North Vancouver police issued a press release that included the man's name and photo which appeared in news reports throughout Canada.

"Police have what is called a duty to warn when it comes to things like this and that is one reason we put out a name and photograph so quickly," [Const. Michael] McLaughlin told CBC News. "One of our primary responsibilities is keeping people safe, and enforcing the law goes along with that."

The fishing expedition has now turned up four further women who also claimed the accused did not disclose before sex, according to June 30th CBC News report that continues to carry the man's photo.

RCMP in North Vancouver are recommending four more charges of aggravated assault against [name of accused], who was first charged with the offence in May after police said he exposed his partner to the virus that causes AIDS without telling her. Since that charge was laid, four other women have come forward with enough evidence for investigators to recommend four more charges against [him], RCMP said in a release Wednesday.

The accused is out on bail "under court-imposed conditions that require him to tell any potential partners that he is HIV-positive."

Vancouver's tabloid, The Province, tells a rather different story - at least the headline appears to tell a different story.

Four more women say they were infected by HIV-positive man

Actually, no! They didn't. The actual story in The Province is very similar to CBC News' coverage - there is no mention of HIV-positive tests or accusations of infection.

The CBC and The Province coverage also includes the name (but not the photo) of a second man, a 38 year-old with an African name, from the Vancouver suburb of New Westminster. The man, who faces three counts of aggravated sexual assault for either not disclosing to one woman three times, or three women once, is presented by the police, and therefore the media, as a dangerous man on the loose.

CBC reports it this way

The offences date back to May of 2006 and there is a concern that [he] may have headed to Eastern Canada and will continue to have sex with women without telling them about his condition, police said.

The Province makes him seem much more like a calculated serial infector

New Westminster Mounties are hunting for 38-year-old [name of accused], who has been charged with three counts of aggravated sexual assault after having sex with three women while knowing he was HIV-positive. Crown counsel has issued a Canada-wide warrant for [his] arrest, as police believe he may have traveled to eastern Canada. The offenses he is charged with date back to May 2006, and police are concerned [he] may plan to put more women at risk.

These BC 'name, shame and create fear' cases are in direct contrast to the recent Vancouver court case where the accused was acquitted, and where the judge ordered a publication ban on the name of both the accuser and the accused.

They also contrast with a recent case in Edmonton, Alberta, analysed in an April 23rd Xtra.ca story, where a 50-year-old HIV-positive man was charged with aggravated sexual assault after allegedly failing to disclose his status to his female partner.

The piece quotes a police spokeswoman who explains that they did not release name or photo of the accused in order to protect the man's partner.

“Releasing any details would without a doubt identify the victim. We are not releasing the name of the accused strictly to protect the identity of the victim. This is not a case of an unknown male with HIV forcing sex on women. The sexual intercourse in this case was consensual. However, the male failed to inform the woman that he was infected with HIV."

In this case the accused man was released from custody with a trial set for March 2011.

Canadian HIV law at a crossroads (Xtra.ca)

Reposting this article from Xtra.ca published online today. Tomorrow's verdict (due to be issued 9am Vancouver time) will be as important to people living with HIV – and public health – in Canada as the outcome of UK's general election. Will provide full details of trial and commentary on Monday.

Canadian HIV law at a crossroads

CRIMINALIZATION OF HIV / Vancouver, Edmonton and Hamilton cases could affect future police & crown decisions

Nathaniel Christopher & Neil McKinnon / Toronto / Thursday, May 06, 2010

Cases in three provinces could shape the way HIV non-disclosure is treated by the courts in this country.

In Vancouver, an HIV-positive man awaits a verdict after a lengthy trial. He and his boyfriend had unprotected sex very rarely — possibly just once — and the poz partner was always the bottom. The trial judge has ordered a publication ban on both men’s names.

In Hamilton, a poz guy had charges against him stayed because the complainant and accused only engaged in oral sex.

And in Edmonton, a straight man in his 50s is facing an assault charge for HIV non-disclosure, but police — who have a history of splashing names and photos around in the media — are refusing to release his name.

Although there is no HIV law on the books, Canadian police have, since the mid-’90s, been charging people with offences — ranging from assault to murder — for failing to disclose their health status before having unprotected sex. HIV activists have long said that transmission should be a public health matter, not a criminal one.

In Vancouver, Justice Lauri Ann Fenlon was, as Xtra goes to press, expected to render a verdict on May 7. But she has already hinted that the case could be appealed on constitutional grounds.

The defendant is represented by BC Civil Liberties Association lawyer Jason Gratl. Gratl called Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, to the stand to testify about the adverse effects of HIV criminalization.

At the trial, Fenlon said Elliott raised important policy issues that an intervener might put before the appeal courts or the Supreme Court of Canada, but that his testimony was not relevant to the issue before her.

The court, consequently, did not consider Elliott's testimony, but if the accused is convicted, they may end up making their case in appeals.

Elliott testified to the challenges of requiring disclosure in all circumstances, saying that approximately one quarter of all people in Canada infected with HIV don't know they have it.

“I think people recognize challenges of HIV disclosure, including stigma and negative consequences that can very easily flow from their HIV status,” Elliott told the court. “Rather than expect people to overcome those barriers in every circumstance and impose a criminal penalty when they don't, the emphasis should be on personal responsibility and risk reduction, a sensible prudent strategy in the ability of all people.”

He told the court that the stigma associated with HIV could be a disincentive to disclosure.

“People, quite legitimately, have concerns over employment, housing, loss of personal and other social rela-tionships, ostracism in community and denial of service by service providers,” Elliott testified. “Although we only have limited systemic research on HIV stigma, we certainly do have enough to document that there is still a pervasive stigma associated with HIV.”

He stressed the need for clarity in the law to better define what sexual activities between HIV-discordant couples constitute “significant risk” of serious bodily harm as set out in the 1998 Supreme Court of Canada case R v Cuerrier.

***

In the Vancouver case, the issue of what constitutes significant risk is paramount, because the defence is arguing that the risk of HIV transmission was as low as 1 in 2,500. In none of the three cases did transmission occur.

Dr Richard Mathias told the court he believes HIV transmission rates from anal intercourse are comparable to those from vaginal intercourse. He explained that a penetrative partner in anal sex is at risk of contracting HIV through anal fluid, which could travel up the urethra. He mentioned that in the case of uncircumcised men, the risk is higher as the fluids can infect the insertive partner through the tissue beneath the foreskin.

Crown counsel Brendan McCabe asked Mathias if he is aware of any incidents in the gay community of the virus going from an HIV-positive bottom partner to a negative top.

“No,” said Mathias, who has worked in public health for 35 years and conducted research on HIV and AIDS in the early days of the disease. He explained that the risk in the case of the accused would be 4 in 10,000 per act, but that number would multiply with each encounter.

McCabe suggested that if the accused and complainant had had five unprotected encounters, then the risk would be 20 in 10,000.

Mathias said the risk is comparable to sex between an HIV-negative bottom and an HIV-positive top when a condom is used.

The definition of "significant risk" was also at the heart of the Hamilton case, where the prosecution stayed an aggravated sexual assault charge in April. A gay man was charged in February 2009 after an ex-partner alleged they had oral sex without his disclosing that he had HIV. The charges were based on the accused's performing oral sex, rather than receiving it.

The ex-partner has since been tested and is HIV-negative.

Elliott said in a statement:

“There was never any solid basis for significant risk of transmission. It’s a misguided overreaction to lay and pursue some of the most serious charges in the Criminal Code when no harm has occurred and the risk of HIV transmission was miniscule at most.”

***

In the Hamilton case, the name of the man who was accused is public, but, at his request, Xtra chooses not report it. In the Edmonton case, police declined to release the accused’s name. And in Vancouver, the judge ordered a publication ban on the accused’s identity.

In all three cases, the complainant’s identity cannot be disclosed by law, akin to the way the identities of rape victims are protected.

Police across the country often disclose the names of people accused of sexual assault for HIV-nondisclosure, which, among other things, outs them as HIV-positive.

The Edmonton case is unusual because, from the outset, the name of the accused has been kept under wraps.

The charge follows a March 31 police complaint by a woman claiming she slept with an Edmonton man who failed to disclose that he has HIV.

An RCMP spokesperson, Jodi Hei-denger, says the move has nothing to do with public disclosure of the health status of the accused, and everything to do with protecting the identity of the alleged victim.

“Releasing any details would without a doubt identify the victim. We are not releasing the name of the accused strictly to protect the identity of the victim,” says Heidenger.

Which could mean that the Vancouver case, where at trial the accused’s name is protected, could be more precedent-setting. The move, however, may have come too late, since the publication ban came only after the name had been bandied about in media reports and police press releases.

The Hamilton case, because it never went to trial, will likely have the least impact on jurisprudence.

The Vancouver case, with the spectre of a Supreme Court challenge hanging in the air, could be one of the most important in a decade.

Canada: Young gay man arrested for not disclosing to older ex

A 21 year-old gay man from New Westminster (a suburb of Vancouver, BC) has been arrested and charged with aggravated sexual assault after his older ex-boyfriend complained to the police that he hadn't disclosed his (recently-diagnosed) HIV status before they both had consensual unprotected sex.

The case, reported in several local newspapers, is a perfect example of how Canada's criminal HIV exposure law has the potential do more harm than good.

The Vancouver Sun reports

[Name of man], 21, was told by his doctor that he was HIV positive, but he failed to tell his much older partner about his diagnosis prior to having unprotected sex with him, New Westminster police said in a press release.

"I think [the partner] was about 15 years older," Staff Sgt. Paul Milne told The Vancouver Sun. "They are no longer in a relationship."

[...]

"This is the first [case like this] that I've heard of in my career," Milne said.

The New Westminster Police Major Crime Unit are asking anyone who had unprotected sex with [man's name] to contact Det. Tina Chan at xxx-xxx-xxx.

The report in The Province does not mention that both complainant and accused are men, and adds the following

Police say they are "concerned for the health and safety of the public and urge any potential victim to come forward so that appropriate health measures can be taken."

Taken together the reports (and the law) suggest that unprotected sex amongst gay men is

• incredibly rare;
• that the HIV-positive person is 100% responsible for safer sex;
• and that this is a Major Crime that places the public at risk.
  

Humbug to all of that!

A recent meta-analysis of the prevalence of unprotected anal sex amongst HIV-positive gay men in the United States published in the August 24th edition of AIDS (and reported on aidsmap.com here) found that one-in-four HIV-positive gay men have reported unprotected sex with a man who was HIV-negative or of unknown HIV status. There's no reason to believe that the prevalence in Canada will be any different.

This a public health issue, not a criminal one; the law does not change sexual behaviour.

Picking on unlucky individuals who are brought to the attention of the police due to a complaint from a disgruntled ex (who should know better) does nothing to prevent HIV transmission in Greater Vancouver's gay community.

In fact, by suggesting that this man's behaviour is rare, and that HIV-positive gay men usually disclose their status before unprotected sex, they are doing more harm than good to the public health.

It would make much more sense for the reports (and the law) to highlight that you cannot know, or assume, that your partner is HIV-negative because either they will not know their true HIV status or because they will not tell you.

Canada: Yet another African migrant guilty, this time in BC

A British Columbia Supreme Court judge has found Charles Mzite, 36, guilty of four counts of aggravated sexual assault for having unprotected sex with four women from Victoria, BC, without disclosing his HIV status. One of the women has since tested HIV-positive.

Mr Mzite, a musician, was arrested in September 2007, six years after he moved to Canada from Zimbabwe.

According to the Vancouver Sun:

The main issue of his trial, which began in November, was knowledge. When did he first learn he was HIV positive? Did he knowingly spread HIV to a young single mother who is now facing an uncertain future? From the first day of his trial, when he stood in the prisoners’ dock and entered four pleas of “not guilty,” Mzite vigorously denied knowing until late 2004 that he was infected with the HIV virus. The Crown, on the other hand, argued Mzite knew he was HIV positive since 1995 and preyed on vulnerable women. During the trial, all four women testified they would never had sex, let alone unprotected sex, with Mzite if they’d known he was HIV positive.

Further details of the trial were reported in this Calgary Herald article:

Mzite has been charged with having unprotected sex with four women, between May 2001 and November 2005, without telling them he is HIV positive. Mzite admits he had unprotected sex with all four while he was infected with HIV, but sexual contact with two women took place before Nov. 18, 2004, his lawyer Martin Allen argued.

Mzite had sex with the third woman before and after he tested positive. After the result, he informed her and used condoms. The fourth woman - who has tested positive for HIV antibodies - was with Mzite when he learned he was HIV positive, said Allen.

Mzite testified that he had six negative HIV tests in Zimbabwe. A few months after arriving in Victoria in May 2001, Mzite was tested for STDs and HIV at the Cook Street Clinic. The clinic phoned Mzite and told him his results were fine but he needed to come in for counselling. Although, Mzite had tested positive for HIV, the clinic did not give him that information over the phone. Mzite didn’t go back for counselling and never picked up his positive result.

“There cannot reasonably be a finding that he either had knowledge or was wilfully blind after August 2001,” said Allen.

Similarly, Mzite’s HIV status slipped through the cracks of Citizenship and Immigration Canada. In 2001, immigrants and refugees planning to stay in Canada for more than six months were required to undergo a full medical examination and testing for sexually transmitted diseases - but not HIV - after they arrived. HIV testing became mandatory for people moving to Canada in January 2002.

Mzite had the required medical exam and blood work - without HIV testing - on Dec. 7, 2001. Although he believed his medical included an HIV test, it did not, said Allen.

Allen took issue with the credibility of the alleged victims and with an interview by Victoria police Sgt. Scott McGregor. Allen said his client sank into despair after being told by the officer he would be dead in a year or two.

And, according to this report in The Times Colonist, a voir dire was held in December to decide whether statements Mzite made while in police custody were admissible in court.

Despite receiving explicit instructions from a legal aid lawyer not to talk to police about the charges against him, Charles Mzite found himself answering a Victoria police detective about his HIV status.

He allegedly stated he had known he had been positive since 1995, and that is probably why Justice Robert Johnston ruled yesterday that "the Crown had proved beyond a reasonable doubt that Mzite knew he was HIV positive and that he either denied or failed to disclose his status to his four victims, exposing them to the risk of serious bodily harm."

A date for Mr Mzite’s sentencing hearing will be set tomorrow.

Canada: British Columbia man receives 4 1/2 years for HIV exposure; shoddy reporting

For an example of shoddy journalism, and inaccurate reporting, you can't beat this article from the Vancouver Sun. The headline is wrong (the man is 36); the writing is abysmal (he was prosecuted for breaking HIV exposure laws established by R vs. Cuerrier - there was no transmission - but he is referred to as an "HIV transmitter"); and the journalist appears to have neither understanding of criminal law nor the difference between HIV and AIDS.

HIV-positive youth jailed after deceiving partner

Sunny Freeman

Sunday, November 04, 2007

PRINCE GEORGE - An HIV-positive man who lied to his sexual partner about having the virus has been sentenced to a four-year, eight-month prison sentence by a Prince George Provincial Court judge.

Because of time already served in custody, the sentence means he will actually spend two more years in jail.

The man, who was identified in court documents only as J.M.L, pleaded guilty to a charge of aggravated assault against a 24-year-old single mother he met in an online chat room while living in a Prince George halfway house in 2004.

The man, who was 36 when the affair began in November 2004, had an unprotected sexual relationship with "Miss X" until March 2005, according to court documents. The defendant knew he had AIDS, the court documents said, but deceived his partner about his condition.

When Miss X expressed concern about sexually transmittable diseases, the man produced a document that appeared to show he tested negative for HIV/AIDS. The document was actually for tests that were part of the defendant's ongoing treatment for HIV/AIDS.

"I have empathy for the defendant and his situation. But that empathy is tempered by the grave concern I have for the situation that Miss X found herself in through no fault of her own," said
Judge Michael Brecknell in the reasons for sentence. The defendant also lied to the woman about his criminal history. He gave her a document that showed he had 15 criminal offences.

He actually had 53 offences on his criminal record, including seven break and enters, two robberies and eight fraud charges. A concerned housemate of the infected man at the halfway house told Miss X in 2005 about the defendant's condition. She immediately ended the relationship and went for HIV testing.

She was given a prophylactic drug cocktail for several months. She continues to test HIV negative. The man had already served about 16 months after being arrested, which counts double toward his sentence.

The defence argued that sentencing the man to two additional years in prison could amount to a life sentence, due to his deteriorating health. But Brecknell ruled the defendant should be locked up to protect the public.

"The defendant, in my view, is a danger not only to Miss X but to any other woman who the defendant may feel some desire toward," said Brecknell.

This is not the first criminal case involving HIV transmitters in Canada. Several recent precedent setting cases across the country informed the judge that the number of victims, number of occasions on which unprotected sex occurred and whether the victim became infected should be factored into the court's sentencing decision.

sfreeman@png.canwest.com

© Vancouver Sun

http://www.canada.com/vancouversun/news/story.html?id=1dcbb7da-0246-480b-8d35-e38027d35eab&k=20700