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Should People Who Spread HIV Go to Jail?
Johnson Aziga
A Canadian court has handed down the world’s first murder conviction for knowingly exposing and infecting someone with the AIDS virus. But as an HIV-positive woman, I know that the man who infected me only deserves half the blame.
As a woman who contracted HIV from a man who claimed to have been unaware he was HIV positive, I have never entirely blamed him. Prior to being with him, I asked him questions aimed at identifying his risk factors for having HIV. Based on my trust of him, and his answers, I took a calculated risk and had unprotected sex with him. I rolled the dice—and lost.
Should he go to jail? Some courts around the world, and some U.S. states, think so. HIV transmission is increasingly being criminalized. And a court in Canada has taken the criminalization of people with HIV to a new level of severity: Last month in Toronto, Johnson Aziga, who was diagnosed with HIV in 1996, was convicted on two counts of first-degree murder and 10 counts of aggravated assault for transmitting HIV to two female partners, both of whom eventually died from AIDS-related illness.
While I was certainly upset at the man who gave me HIV, I am more upset with myself for choosing to risk my own life when, arguably, I knew better.
Aziga’s case sets a precedent: he’s the first person in the world who was aware of his HIV status to be convicted of first-degree murder for exposing a sexual partner to HIV. But his conviction is part of an upward trend. While this may be the first time the word “murder” has been used in such a conviction, an increasing number of charges and prosecutions for HIV transmission—and even potential HIV exposure—are popping up around the planet. In some cases, HIV-positive people are being imprisoned even if HIV transmission couldn’t have possibly occurred. In Texas last year, an HIV-positive man was sentenced to 35 years for harassing a public servant with a “deadly weapon” when he spat on a police officer. This, despite the fact that there has never, in 28 years of the epidemic and more than 58 million documented cases of HIV to date, been a recorded case of HIV transmission via saliva.
When I made the decision to be with the man who gave me HIV, I knew that even if he was telling the truth about not having engaged in risky behaviors, he might still have the virus. I understood that there is risk involved for anyone, anytime they have intercourse without a condom. And so, while I was certainly upset at the man who gave me HIV, I am equally upset with myself for choosing to risk my own life when, arguably, I knew better.
Which is part of the reason I have a problem with the fact that, in most U.S. states, there is some sort of law making it a crime to either knowingly transmit, or expose someone to, the virus. The finger of justice seems to inevitably wag at the person living with HIV, but given that these cases in question involved consensual sex, it makes me wonder why we are not discussing the culpability of both parties. Why are we not asking the person who was exposed, and who perhaps contracted HIV, whether they felt any responsibility for the risk they took when having unprotected sex?
Criminalizing people with HIV isn’t just unfair to the HIV-positive person. It also helps deepen the stigma around the disease, which in turn, undermines prevention, testing and treatment efforts. When HIV-positive people are criminalized, people in general become less likely to educate themselves about the disease, to discuss HIV with their partners, and to get tested for the virus. According to U.S. law, if you don’t know you have HIV, you are less culpable should you pass it along to a partner. This provides a disincentive for people to know their HIV status. And, if people are unaware of their HIV status, they are not seeking care for the disease. When people are aware that they have HIV and seek treatment, their viral load can be reduced, rendering them less infectious. Therefore, criminalization of HIV actually leads to the spread of HIV.
If it were not possible to be criminally indicted for HIV, more people might be willing to talk about it—and more lives could be saved. Abolishing the criminalization of people who are positive would lead to more people knowing their status, seeking life-sustaining care that would reduce the chance that they could transmit the virus, regardless of their behavior, and it would encourage disclosure, which in turn is a form of prevention.
Many of the laws that criminalize HIV transmission were created during the darkest days of the AIDS epidemic, when little was known about the virus, fear was rampant, and the myth of the “AIDS predator” flourished. The fact is, very few people living with HIV would wish the disease on their worst enemy. In truth, many people who are newly diagnosed either refrain from sexual activity, especially initially, or take the necessary precautions to protect others from getting the disease. I frequently hear from people about their deep concern for not wanting to pass the virus along. Many HIV-positive people are themselves concerned about not contracting other strains of the virus or additional STDs. HIV-positive people typically become “safer-sex experts.” One thing we must protect ourselves against is human papilloma virus; ironically, another sexually transmitted virus that has several strains that can lead to deadly cancers. And yet, people who don’t know, or don’t disclose their HPV status, are never criminalized for transmitting that disease.
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Is this woman nuts? "Criminalizing people with HIV isn't just unfair to the HIV-positive person. It also helps deepen the stigma around the disease, which in turn, undermines prevention, testing and treatment efforts." Somebody knowingly gives her a fatal disease and she worries that people like him will be "stigmatized." Apply this same logic to drive-by shooters and see what you come up with. That's the problem with political correctness. Common sense can't breathe in the same room.
I don't know about murder but it certainly is a crime. I agree with Banjo1, it is ridiculous to say someone taking a risk should share the same blame as someone knowingly putting someone else at an enormously larger risk.
If the law states that HIV positive people must insist on using condoms I don't see any argument that it would make anything worse.
Testing HIV-positive means one has been exposed to the virus that is alleged to cause AIDS. More than 70 different conditions - including pregnancy, malnutrition, multiple infections, multiple sclerosis, measles, and exposure to a flu or hepatitis B shot - are known to trigger a false HIV positive. In short these tests are for non specific anti bodies and not for diagnosing HIV or treating AIDS.
According to the New England Journal of Medicine: "The techniques of the HIV test have not been standardized, and the magnitude and consequences of inter laboratory variations have not been measured. Its results require interpretation, and the criteria for the interpretation vary not only from lab to lab, but also from month to month."
Because of so many variables involved, the many HIV tests are seriously flawed and invalid. The consequences of this fact are that many people, including pregnant women and newborns, are being treated for a condition they do not have. In fact, the disclaimer by the manufacturers of the test kits specifically states that the tests are not to be used to diagnose or treat HIV/AIDS. They are not licensed for that purpose.
25 year and tens of billions of dollars have been spent to develop a vaccine based on what we are told is HIV. To date 67 vaccine failures. Virologists have yet to develop a vaccine that does not kill or cause serious adverse reactions. No vaccine? Perhaps what the experts think is HIV is something else.
During an interview in Continuum Magazine (Winter 1997) Luc Montagnier admitted he did not purify HIV. "What we did not have, ........, was that it was truly the cause of AIDS."
So what is this HIV these 'virologists' think they have?
If I were you, lady, I would go to a reputable naturopathic physician, take a course in immune building, check out to make certain you are not inlfuenced by the factors known to trigger a false postive and get retested.
Why is it people take these tests and submit to therapies without reading all the fine print?
Yep, she gambled and lost. Not smart in this day and age.
Banjo's right on: We don't distinguish between people who kill with baseball bats or frying pans. Why should somebody who knowingly infects another with a moral disease be treated any different than somebody who poisons them with a chemical agent?
The victim who chose to walk down the dark street where she was hit on the head might have exercised bad judgment, but it has no effect on the culpability of the criminal. Criminality consists of the intent to do criminal harm and taking action to effect criminal harm. There ain't much more harmful than purposefully infecting another human being with AIDS.
No she is not nuts and you are the one with no common sense. Let's take two more communicable diseases, herpes (all strains) and the human papilloma virus, both of which are carried by at least half of the male population, straight more then gay but the stats are growing closer to equal per ratio. I want to know if every man who has transmitted herpes to a woman who has suffered severe complications either directly from the virus or if she got pregnant, during delivery of the baby and if the baby was born retarded or with a birth defect or died as a result of premature birth as a result of this transmission of the virus from the man (if you have it, you know you have it or can find out with a simple test, so no excuses) to the woman, has been charged with murder, aggravated assault, 2nd degree manslaughter or any other punishment that might fit this crime which is identical to the HIV transmission crime as described. Yes, those of us who have lived with this virus for the last 30 plus years know the stigma society and people like you have heaped upon us and we still deal with it everyday. Lazy a-holes who can't take resposibiltiy in this day and age by protecting themselves with a condom and under some romantic belief that they deserve a truthful answer to the question that they almost never ask, bear at LEAST 50 percent of the blame in transmission. If you got your HIV virus under those circumstances, you deserve it more than those of us that never knew it was even out there, yet still are considered potential murderers if we kiss someone or give someone a blow job. The guy (or gal) who didn't ask should be thrown in jail for the same amount of time, as they willingly set up the situation that they would become infected with HIV and are now one more bullet with the potential to be fired at will, that should end up in jail. Criminilization of HIV will drive this disease underground, so irresponsible people can say "Well I didn't know I had it". Any smart person would NOT get tested, just realizing that they would loose their insurance, probably their job, their home, their social standing etc. If you think know one knows about your HIV status and your medical records, you are sadly mistaken. Just google Medical Information Bureau. As well, that wonderful little napolean Bush act called the FISA bill, that the liar Obama has just allowed to stand means that anything you put out on the communication hiway, snail mail or otherwise, is reviewable by our government agencies. You need to adapt a broader realization of our Orwellian world boy.
The first sign of a dodgy argument is when the author grossly distorts his or her target. The author of this article (and equineprof in the above comment) both claim that their target is the "criminalization of HIV." Yet, nobody is talking about criminalizing HIV -- as I understand it, we're talking about criminalizing reckless decisions made by people who have HIV (in the same way that DUI laws don't criminalize either "alcohol" or "drunks"). Or are we going to start saying that the laws against abusing prescription painkillers constitute the "criminalization of angry white men" just because of Rush Limbaugh's transgressions?
Also, what's up with trying to equate the perpetrator's crime with the victim's poor judgment? That sounds an awful lot like blaming rape victims because they chose to go out to a club it provocative attire. I think those who acquire HIV through unprotected sex are punished enough for their recklessness without trying to put them in the same category as the perpetrators who proceeded with such clear disregard for others.
Finally, what about the notion that these criminal prosecutions might be driving infected people underground? Really? What kind of sick people are we talking about who would use this as an excuse to remain ignorant -- and a threat to others? Assuming such people exist, do we have any statistics to back up this argument, or is this just wild speculation?
IF it is done maliciously and intentionally , yes.
In Canada it seems that only Blacks - a famous soccer coach in Surrey, BC. a famous Musician in Victoria, BC, and an American football player (Saskatchewan Rough Riders) - are the ones who manage to test HIV positive.
Why is it only blacks who get nailed? Is there a racist overtone here?
By the way, the lawyers were alerted to the fact the HIV tests are being misused. It would seem they just wanted to take the defense money and run..
Absolutely they need to go to jail, knowingly spreading the disease, because you are mad that you have it is not unheard of. I worked in a prison where one offender who was HIV positive, knowingly slept with by his admission more than 150 different women, many of them under the age of 20.
What other punnishment do you suggest?
Yes, Canada is an incredibly racist country--it gets away with seeming that it is not simply because its neighbor to the south is the scapegoat for all that is wrong with Canada. I am a dual citizen and recently, after critiquing Canadian society with people in Toronto about our lax attitude towards police brutality (there have been many cases of this in recent years and the media does not cover it, the public does not protest it aside from a marginal group of skinheads), and I was told that I was being unpatriotic. Of course, this is facile and uncritical thinking. Likewise our treatment of people with HIV is just nuts. There is absolutely no way to prove definite transmission and for all of an allegedy "open" country that Canada pretends to be, it is painfully clear by this policy the fascist overtones. HIV transmission is a personal responsibility and we must all take that responsiblity: condoms. Now that someone maliciously spreads AIDS or not, again, not easy to prove or even "know". Moreover, to criminalize such an act is just wrong. It is one of those grey areas just like dishonest acts in marriages which do happen when people use their partner for economic or immigrant visa purposes. Entirely dishonest and evil, but not illegal. We cannot protect ourselves from wankers, but we can use condoms.
Where's Canada? Is it a country or something?
It comes down to this... if you know you have the disease and you knowingly expose others, that is a serious crime. And should be treated as such.
If you don't know... then it is a totally different issue. It then reflects on the two people involved and the lack of good judgement.
There is a difference in the law, manslaughter versus murder. The only difference is intent.
Persons who have exhausted all testing alternatives and still have a positive diagnosis of HIV who, with full knowledge of their condition, withold that information from a sexual partner, are guilty of risking the other person's life.
If a person risks another's life in other forms, it is a criminal act. Reckless driving, driving under the influence, other sorts of risky behavior that exposes others to life-threatening risk even though those others have chosen to be in that situation, are criminal acts.
So too should the willful exposure of others to HIV be criminal. But there better be some proof that the HIV-infected person withheld information.
It's not ' consensual ' when an important fact is left-out of the equation. Ask yourself this. Would you have sex using a condom if you KNEW your partner has AIDS ? I personally would not risk it since safe-sex practices are not 100 % effective and the price for failure, is WAY too high IMO.
Deadly virus kills African musician
Prominent young African musician whom we wont reveal the name in respect to his wife, died last week after supposedly being infected with an unknown sexually transmitted deadly virus. After a suspicion of homicide had been eliminated, the autopsy showed that the cause of the death was a form virus that as some researches indicate can also be transmitted by saliva and sweat. According to police investigation the victim frequently had occasionally sex with women that came to the concerts while he was on tour around different cities in the world. Most of the women were fans from the audience but also blind dates that the artist met through virtual networks on the Internet and then invited them to attend the concerts. The number of people that might also be infected due to contact with the victim is still unknown but efforts are being made to trace these people and have them medicated and treated. It's not certain if the victim had unprotected sex, which would prove the contamination by other body substances. Africa is severely affected by high HIV rates and irresponsible sexual behavior.
Today everybody knows about HIV. Everyone knows that some people have it. We also know that many people have many other diseases (syphilis, gonoreah (sp?), various types of hepatitis, herpes...) around which, for some reason, there is erupting no comparable hysteria. When we sleep with someone we do not know well we are taking responsibility for ourselves. The responsible choice is to use a condom. Clearly if someone asks whether you have HIV and you lie, saying you do not when you know you do, that is pretty wicked, and should be punished, but it is not murder. It doesn't meet the criteria first because HIV is not by any sensible definition a fatal illness anymore. I know many people still seem to be living in 1994 but if you haven't noticed, things have changed since then. Secondly, we are not making allowances for various types of sex. There is no danger of transmission in, say, someone with HIV giving oral sex to someone without HIV--to prosecute over that is not reasonable, it is simply neurosis.
The sane way to deal with HIV is to use a condom. If you use a condom your chances of getting HIV are miniscule. A statement such as:
"I personally would not risk it since safe-sex practices are not 100 % effective and the price for failure, is WAY too high IMO."
sound reasonable but is really insane. Wake up, man! Looking both ways before you cross the street is not 100% effective. Locking yourself in a hermetically sealed and sterilized bubble would not be a 100% effective way to safeguard yourself from the various threats (swine flu, anyone?) that might confront you. Compared to your chances of getting hit by a car, or contracting cancer as a result of pollutants you breathe in or of artificial ingredients in foods you consume (are you fanatically eliminating all possibly cancer-causing foods from your diet?), or suffering serious effects from second-hand smoke, your chances of getting HIV from sex that involves a condom are laughably minute. We accept millions of risks every day; those of us who have sex are accepting a number of risks that come with sex. And the risks are no less because you scapegoat and refuse to sleep with someone who tells you he has HIV--someone who says he doesn't have it may be lying or may simply not know (when was the last time he got tested?) And by the way, the price for failure is not WAY too high (spare us the melodrama, please)---I've had HIV for years and I'm the healthiest person I know.
If I point a loaded gun at you and pull the trigger, the odds of your getting harmed are stupendously close to a guarantee. If I have unprotected sex with a person who is HIV positive, no matter which of us does or does not know that HIV is in the room, the odds of my getting harmed are much closer to zero! HIV transmission does not occur 100% of the time - no matter how great the sex is, it is actually a fairly inefficient means of transporting things from one person to another - recognize, please, that sex doesn't even guarantee pregnancy.
I agree with Ms Hoffman, that criminalizing HIV is a red herring, which seems appealing in some circumstances but which makes no medical sense. For instance, there is not a medical professional on the planet who will testify in court that one person's HIV absolutely definitely came from a particular transmission opportunity (like a sex act or a particular day) or even from a particular other person as a source. Unlike the ballistics that identify which gun a bullet was shot from, there is no similar marker which identifies what ...ahem... vehicle transmitted the virus that has infected another person.
Without that level of medical certainty, can there be any legal certainty? That is, if a doctor cannot say without doubt that one person's HIV infection occurred on such and such a date and from such and such a person, how can the law pretend to make such a claim?
And if the laws are set to allow for this uncertainty, for example by allowing a person to be charged for exposing another person to HIV without requiring proof of transmission (since that can't be proven), is not the law then too loose? Are we not then holding people accountable for creating a possibility of harm, instead of an actual harm?
As for the notion of consent, on its face the idea of informed consent is very important, and yes, if there is a fundamental fact in play which would have altered one party's evaluation of risk then it makes their consent in fact uninformed. But here's the thing - legally you cannot prove a negative, and medically you cannot prove that you are HIV-negative. Whether I lie to you or not when you ask me my HIV status, there is no test that will prove to you or to me that right now this second I am not HIV-positive. Therefore, I am are either HIV-positive, or I don't know yet. And if I don't know for sure that I am HIV negative,aren't I lying to you when I say that I am? Where is the outcry for criminalizing that behavior? Answer, there is none because we can't medically distinguish when it has happened. I can have an HIV test, even a very specific blood test, and within 4 seconds after getting a negative result say to you that I am negative and so sex with me is ok - but I do not know that for sure. And if I don't know that about me, how can you know that about me?
The law has no place here. The law is for acts of intent, and vengeance. A person who goes hunting and tries to infect others - whether it is infection with HIV or the flu or a bullet - should be charged and held accountable. But that is an atypical case, and we will know it when we see it. Please refer to your local hate crimes law: those laws outlaw hunting people for one reason or another, but do any of them include something that could be used to hold accountable a person who has purposely tried to infect another? Probably not. Those are the laws that should be changed, and used. The rest make stigma real, and personal, and a barrier to care and testing.
When was the last time you were HIV tested? What do you tell your partner about your HIV status? How do you know? And how do you know that the sex you had last night is not going to lead to your arrest tomorrow under some sort of draconian HIV criminalization law? I ask not because I want to make this personal to you, but because the notion of it probably feels unfamiliar and uncomfortable to you - which is exactly the point.
Is drunk driving an act of intent or vengeance?
If the government is going to be involved at all, the laws must be CLEAR. They must not marginalize or stigmatize people, and they must be fair. If there has to be a law, it should read as follows:
1. It shall be unlawful for anyone with a sexually transmitted condition, as defined herein, to knowingly and intentionally fail to disclose that he or she has that condition to a partner immediately prior to engaging in any sexual activity with that partner that carries an unreasonable and scientifically established risk of transmitting the condition.
2. Notwithstanding the above, if anyone with a sexually communicated condition knowingly and intentionally fails to disclose that he or she has that condition to a partner immediately prior to engaging in any sexual activity, without actually transmitting such condition, such conduct shall not be punishable by law.
3. Section 1 shall not apply to anyone engaging in sexual activity for payment or in any commercial establishment or other public venue where sexual activity between consenting adults occurs.
4. The following conditions are sexually communicated conditions:
* BV - Bacterial Vaginosis
* Chlamydia and LGV
* Gonorrhea
* Hepatitis (viral)
* Herpes, Genital
* HPV - Human Papillomavirus Infection
* PID - Pelvic Inflammatory Disease
* Syphilis
* Trichomoniasis
* Human Immunodeficiency Virus
All of these conditions are sexually communicated, and if you know that you have one, it's unfair to subject someone else to it without telling them about it. Period.
This doesn't relieve our partners from their responsibilities; when human beings engage in unsafe sex we are always taking some risks, but if we are going to criminalize human sexual behavior at all, the laws should be intelligently written and based on established scientific facts.
The above language would limit the stigma of having HIV or whatever, and protect uninfected individuals without imposing an unfair burden on others. What is a "reasonable risk" of transmission? Hey, if you have HIV, or chlamydia or whatever, it's your obligation to find out how you might give it to someone else. If you screw up (yeah yeah, I know its a bad pun) but no one gets hurt, it shouldn't be the government's business and you shouldn't be punished by any government agency or authority. If you have "safe sex" and don't disclose, it should not be criminal because you are not engaging in conduct that is unreasonably dangerous. If you have sex for money, you assume the risk because the underlying assumption throughout human history has always been that people engaging in paid sex have no obligation to their partner other than a measure of respect. If you have unsafe sex in a sex bar its reasonable to expect that you may catch more than a cold.
dear mrs Regan
Thank you very much for this very good and informed article. I stopped reading the comments because they upset me too much. There are a lot of excellent papers about why it is wrong and counter-productive to make criminalise a disease -and those writings come from experts. As a paramedic and a person who is living with hiv I hope more people will think before they cry out loudly!
Hi Regan,
well done for having highlighted the damages of criminal prosecution of HIV transmission from the point of view of a woman. We are so often victimized and this reduces the power we have to control our lives.
We take risks in each and every moments of our lives, we also need to take the responsability. Unprotected consensual sex has its risks and both people involved have to be proactive to make it safe. Criminalizing HIV is only making HIV positive people more fearful of disclosing their status.
People still have problems with sex and HIV is sexually transmitted. If it were spread like TB or were a gun or knife, then it would be treated differently but it since it involves sex everyone says that the privacy of the infected must be protected from stigma. Sexually transmitted infections have always be treated this way and many were eventually fatal just like HIV.
In cases were the infect lies about or even doesn't disclose their status and then engages in unprotected sex, it is not wrong to criminalize HIV transmission. What is wrong is to not criminalize all STD transmission when the infected lies about their status.
The problem is primarily one of responsibility. In the regards of disclosure, we do not condone the sale and use of very dangerous drugs by two consenting adults, so why do we believe that achieving consent is the issue here? What is to guarantee that today's consenting partner does not in turn go out into the world to harm others? For my part, I believe that there is a place for criminal laws, but that they should be tailored to direct people to the right paths to abate risk to their partners. There are at least two strong paths to this now, condoms and HAART treatment and monitoring to reduce viral loads to undetectable levels. I cannot fathom the great excitement over a vaccine that reduces risk by 30% when successful treatment can deliver benefits many many times better than that.
Recast the laws to adequately recognize actual risk, help those with hiv find a path that lets them live in good conscience, and that benefits the public health. Expecting that everyone with HIV will be actually capable of disclosing every time is expecting a super human task every time. The pain, pressure, loneliness, and stigma are immense. It is too much to expect that a human being can manage it, but it is not too much to expect that a person can face up to the problem on a day to day basis, and by that make safe others in their lives.
Seems to me that much more education and communication on the subject of HIV/AIDS, and sex, are much needed these days, probably more so than ever. I commend Ms. Hoffman for her insight & the willingness to put blame on herself for her disease. I, too, living with HIV for 20 years, should have known better and used protection. Had I used it, I would not be writing this today. Anyone who engages in unprotected sexual intercourse (anally or vaginally) has willingly opened themselves up to contract HIV or an STD. It's that simple. Get with it people... if you have had unprotected sex at anytime, you have put yourself at risk and a test for HIV and/or STD's is in order, otherwise you may possibly be spreading these viruses yourself. Knowing your status in the end is better than not knowing at all. Go ahead, keep your heads in the sand. Go ahead, don't talk about sex with your partners. Go ahead, keep having unprotected sex... if you get something, it's your own darned fault. Quite frankly, I'm tired of hearing "it's his/her fault I got HIV." ISome people really don't know their HIV status and unknowingly transmit to others. Some people lie about their status, people lie about all sorts of things... Are you really going to trust everything that is told to you? If so, you are naive. Time to be responsible for our own health & sexual well-being. Yes, there are some HIV-positive people (just a few) who willingly & intentionally transmit HIV and they should be held responsible, but why not throw people in jail who transmit other diseases such as herpes, chlamydia, HPV, etc.? Why are they not held responsible?
The majority of folks with HIV do protect their partners with a condom, they also protect themselves by using a condom because they do not want to contract an STD which will complicate their HIV disease management, and many refrain from even having sex at all. It is those who do not know their status who transmit HIV/AIDS. It is estimated that a quarter of those who are HIV-positive who do not know their status are the ones who transmit.
You cannot tell by looking at someone if they have HIV. You cannot assume that someone does not have the virus. You need to talk honestly and openly with your sexual partners. Perhaps even suggest going to get tested together. Get the proof, negative or positive. Simply put, grow up and be responsible for yourself. It's your life & your health... take charge of it, don't blame others for your own slip ups or slip ins... if you know what I mean?
Thank you.
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