HIV infection not a death sentence

Adrian Humphreys  Jul 14, 2011

An Ottawa judge’s rejection of attempted murder charges against a man accused of knowingly transmitting HIV, saying it is no longer an “automatic death sentence,” reflects medical reality and should send a message to police and prosecutors, Canada’s AIDS experts say.

Ontario Court Justice David Wake dismissed four charges of attempted murder against Steven Paul Boone on Wednesday, declaring that death from HIV is a “possible consequence” but no longer an “inevitable consequence or even a probable consequence” of contracting the virus.

The ruling, following a preliminary hearing, removes the four most serious charges against Mr. Boone, 30, in the high-profile case, but he is still to face trial on 21 sex and assault charges involving eight men.

The judge’s reasons for committing Mr. Boone to stand trial on the other charges are covered by a routine publication ban designed to protect a fair trial.

The ruling speaks to the medical advances made in fighting HIV/AIDS in the 30 years since the virus first started terrifying the gay community, but also suggests police and prosecutors have not moved with the times, AIDS specialists and activists said.

“In a country like Canada, where antiretroviral drugs of the highest quality are available to everyone free of charge, the likelihood anyone is going to die over the next 25 years from HIV is extremely remote,” said Mark Wainberg, director of the McGill AIDS Centre based at the Jewish General Hospital in Montreal.

“So the very notion that anyone could be charged with attempted murder today seems strange.”

The ruling highlights the lag time in the justice system.

Back 15 or 20 years, when HIV was usually a death sentence, no such criminal charges were laid. By the time prosecutors caught up to the impact of the social problem, science had passed them by, experts said.

More than 80 people, mostly men, have been charged in Canada with criminal offences for exposing sexual partners to HIV.

The Supreme Court of Canada provided the legal basis in a 1998 ruling that someone who does not disclose he or she has HIV does not have their partner’s consent, making the sexual encounter an assault.

That was taken to new heights in the case of Johnson Aziga, the first person in Canada to be convicted of murder for spreading HIV.

In 2009, a jury found Aziga guilty of two counts of first-degree murder for having unprotected sex without telling partners, who later died of AIDS-related cancers, that he was HIV positive. Aziga, however, tested positive for HIV back in 1996 and was charged in 2003.

In that period, treatment advances have made a difference.

Barry Adam, a University of Windsor sociologist and research director of the Ontario HIV Treatment Network, said the ruling might be a sign that the courts are now catching up.

“Attempted murder seems a bit extremist,” Prof. Adam said.

“Maybe HIV is now being looked at just as other conditions are — treatable. This might be a trend in the courts that attempted murder is overkill. Maybe we are coming into line with the rest of the world.”

Jeremy Dias, gay rights activist and executive director of Ottawa diversity group Jer’s Vision, hailed the judge’s decision as progressive.

Even so, the ruling reignites debate over the issue of criminalizing AIDS transmission in the first place.

“The case is about police services impinging on the duties of health professionals,” said Mr. Dias. “What we have learned from other countries that have criminalized HIV is people don’t get tested. The majority of infections in Canada come from people who are untested. We need to get more people tested.”

Prof. Wainberg agreed.

“I’m the first to say that anybody who knows they are HIV infected and does not inform their partner is doing something morally reprehensible,” said Prof. Wainberg. “The question is whether it should be criminalized. We lose more than we gain by making HIV a crime.

“In rare instances, we gain a kind of revenge, some satisfaction as a society that we have used the criminal proceedings to incarcerate someone who engages in reprehensible behaviour. But the greater good for Canadian society is to try to limit new transmissions of HIV to as great an extent as we can; to encourage everyone to be tested.”

National Post, with files from Postmedia News
ahumphreys@nationalpost.com