Randy McDonald (rfmcdpei) wrote,
Randy McDonald

[BRIEF NOTE] On Criminalizing HIV Transmission

The latest Toronto issue of Xtra has a couple of Shaun Proulx articles describing the circumstances under which HIV transmission is considered a criminal act in Canada. As I wrote in February, I favour the criminalization of HIV in certain circumstances.

In that post, I was responding to the case of Johnson Aziga, a gentleman who despite repeated warnings from public health authorities proceeded to infect several of his (female) sexual partners with HIV through unprotected sex. Proulx is quite right to bring up the case of his friend Trevor, a man harassed by a former sexual partner who was aware of Trevor's HIV seropositivity through the public health bureaucracy. The case of Trevor constitutes a good argument against updating the Criminal Code in such a way as to be too broad. Ruth Carey, quoted in the article, is right to point out that the language of criminal negligence fits these circumstances more readily than the language of sexual assault. Intentionality--the desire to transmit the HIV virus, in any of its variants, to another person without their consent--should determine whether or not a prosecution takes place.

I can imagine that public health's admonitions were humiliating. Even so, these admonitions are important: Quite apart from filling in whatever gaps might have existed his Trevor's knowledge, they created a paper trail. The case of Charles Ssenyonga (1, 2, 3), charged in the early 1990s with intentionally infecting several women and reported to infected a dozen people, proves how important paper trails are. As June Callwood's 1995 Trial Without End documents, Ssenyonga was told numerous times that he was HIV positive and that he needed to practice safer sex in order to avoid infecting his partners. He didn't, of course. At his trial, his lawyers claimed that post-traumatic stress disorder caused him to block out his knowledge of his HIV seropositivity. Except, as it turned out, when he admitted that he was of sound mind and knew exactly what he was doing when he insisted on bareback sex. And, as Callwood points out, except when he raped one woman.

Motives do matter. I'm reminded of those gay and bisexual men in West Berlin, as journalist Laurie Garrett wrote in her The Coming Plague, took advantage of the influx of their East German counterparts after the fall of the Berlin Wall, untrained in the mechanics of safer sex and the risks of HIV as they were. I can readily believe that most of these people were motivated for reasons apart from a desire to transmit HIV: simple pleasure-seeking, say, or psychological relief from a terrifying pandemic. Too, one could argue that their East German counterparts were responsible for not knowing about the principles of safer sex. It still strikes me as a stretch to argue that mens rea was not present on the West Berliners' part. The suggestion that the responsible West Berliners the fault for whatever HIV seroconversion, by denying their sexual partners the information that they needed to protect themselves, leaves me decidedly uncomfortable. I certainly don't think that there's enough substantive difference between a hypothetical person who intentionally injected the contents of a syringe filled with the HIV-1 virus into a second party's bloodstream and West Berliner who intentionally infected an unsuspecting person through sexual intercourse to make the first act criminal and the second non-criminal, or that there should be, at least under Canadian law.

Without exception, the HIV positive people I've known have been quite responsible. A clarification of what acts are and aren't permissible wouldn't apply to these people. Rather, it would apply only to a minority of people who don't care what they don't do. I've no trust in the idea of informal community sanctions largely because such a GLBT community doesn't exist, at least not one capable of enforcing these sanctions. The prospect of facing criminal charges is the only thing that will deter their ilk.
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