A 34-year-old man in Toronto, Ontario is suing the Canadian federal government, the provincial government, Toronto health officials and his HIV-infected wife, Suwalee Iamkhong, 40, for having contracted the HIV virus from her that causes AIDS. The Ontario government’s lawyer, Jeremy Glick states that the plaintiff, Percy Whiteman, is on a fishing expedition and that his claim should be tossed out of Superior Court. According to the lawyer, Whiteman, who is suing for $33 milliion is making broad, unsupported allegations against a variety of government targets, hoping to find something that fits.
Whiteman, alleges that Iamkhong, a stripper from Thailand, knowingly infected him with HIV after they married in 1997, and that medical and immigration officials failed to protect him after Iamkhong entered Canada in 1995 on a work permit to perform at Toronto's Zanzibar Tavern. She has maintained she did not know she was HIV-positive. The criminal court in which she was tried in 2007, didn’t believe her and subsequently, she was convicted of criminal negligence causing bodily harm and aggravated assault against Whiteman, for having unprotected sex with him while she knew she was HIV-positive. She was sentenced to two years which would result in her automatically being deported after her release from prison since being sentenced to two or more years in prison, denies her the right to stay in Canada if she isn’t a Canadian citizen. However, she appealed the sentence and a day was knocked off her sentence which resulted in her being permitted to remain in Canada.
This case raises some interesting legal issues. The main one being; is there a legal obligation on the part of governments, be they federal, provincial or municipal to protect people from their own foolishness? Government officials argued on January 4, 2010, that governments had no private duty to protect Whiteman from his own foolishness. They say that Ontario may have a broad public law duty but that doesn't translate into a private legal duty of care to prevent the plaintiff from contracting HIV from his wife.
Marina Stefanovic, a lawyer with the Canadian government said, “Only in the rarest of circumstances ... essentially a showing of some wrongdoing over and above mistakes, only then you should be able to sue for damages." unquote Renee Lang, lawyer for Iamkhong, said Whiteman has exhausted the two-year limitation period for suing. He opened his lawsuit in 2008, although he had discovered four years earlier he was infected. Whiteman's lawyer, Maurice Benzaquen, countered that it was not until 2006 that his client obtained proof that his wife was the one who infected him, well within the two-year limit.
Government officials should have been on alert, Benzaquen argued, considering Iamkhong was a former prostitute travelling to Canada to be an exotic dancer.
This is where the case get really interesting. Even though Whiteman was in my opinion, very foolish to marry a stripper, knowing that many strippers are a bit free with their sexual favours. He should have done two things before marrying her. First, he should have insisted that she quit her job as a stripper. Second, he should have insisted that she undergo a medical examination to determinine if she was HIV positive.
In 1998, Jacqueline Lewis, PhD & Eleanor Maticka-Tyndale, PhD, both with the Department of Sociology and Anthropology at the University of Windsor prepared a report for Health Canada with respect to risk factors of career exotic dancers getting HIV. The report said in part;
“There are two different types of dancers: career and goal oriented. Career dancers are most likely to be vulnerable to HIV. They are typically immersed in the strip club culture, are often heavy drinkers, and may also be involved in illicit drug use. Sex with customers may be part of dancing, or part of dating men they meet while dancing in the clubs. Goal oriented dancers, on the other hand, treat dancing as a temporary job. They often do not use alcohol or drugs and set firm boundaries around what they do as dancers, with sexual activity outside being this boundary.” unquote
There is no doubt in my mind that Whiteman’s wife was a career exotic dancer. The fact that she was doing it in Bangkok and came to Canada with the express purpose of doing it in Canada is clear evidence that she was doing it as a career. She was forty years of age when she was arrested and I think I can safetly say that she was probably doing it when she was much younger when she lived in Bangkok. I say this with some authority because from my observations of Thai women in Bangkok when I was there in 2005, these woman, when they are young are very beautiful and it is highly unlikely that they would begin exoctic dancing as a career when they are in their mid thirties when there are so many younger women available to be strippers in Bangkok. I could be wrong on this point however as I wasn’t there long enough to be absolutely sure.
The study did not include exotic dancers who came to Canada on work visas however, I think the conclusions they arrived at, at least in part, is applicable to any exotic dancer, whether or not she is home grown or from another country.
In the report, the authors also said;
“Lap dancing has increased the vulnerability of all dancers. It presents a potential for direct skin to skin, genital to genital, or oral to genital contact in the guise of dancing. It increases the probability that dancers may be sexually coerced or assaulted, and blurs the boundary between entertainment that relies on sexual fantasy and that which involves physical and potentially sexual contact. The former carries no risk of HIV or other sexually transmitted infections, the latter has the potential for infection.” unquote
I would be remiss however if didn’t state that a woman cannot get HIV if a man who has HIV ejaculates in her mouth and she swallows the ejaculate. The reason for this is that the acid in her stomach kills the virus as soon as it enters her stomach.
Whiteman had to be pretty naïve to not know that exotic dancers are at a high risk of getting HIV while working in that profession.
The report also stated that efforts to develop and deliver health programmes to exotic dancers had met with limited success. The most successful attempts had been those initiated by community nurses who, working with one or two dancers, had spent time in the clubs talking to the dancers about their needs and gaining trust. Such programmes require the cooperation of club managers, are time consuming, costly, and subject to budget cuts. In other words, it was quite concievable that Whiteman’s wife didn’t actually meet any of these nurses. If she had, perhaps things would have been different.
Almost all women who work as exotic dancers begin with the view that it is a temporary job. But I doubt that Whiteman’s wife kept that view long considering the fact that she had been doing it in Bangkok and later went to the trouble to come to Canada and continue doing it in Canada.
In the report, the authors said in part;
“Women who see dancing as a career, rather than as a temporary job, are more likely to get involved in the ‘dancer life,’ develop relationships with other dancers and club employees, and become immersed in the strip club subculture. Such involvement includes exposure to drug use, chronic alcohol consumption, and stretching the sexual boundaries of dancing (e.g., to escort work). As a result of their involvement in the strip club subculture, the socialization of career dancers is likely to be more complete than goal-oriented dancers, i.e. they take on the life of a dancer.” unquote
None of the dancers that were interviewed during the study reported a history of HIV. However, 35% of the women in aforementioned study had histories of other sexually transmitted infections, most typically gonorrhea (10%) or Chlamydia (20%). Only one woman reported contracting an infection during her dancing career (genital warts).
Hand jobs, oral sex and intercourse did and still does take place in some strip clubs. These activities occur in the more private areas of the clubs, with some clubs even maintaining rooms on separate floors from the main area where more intimate contacts were and are possible. In addition, some dancers went on and still do go on dates with club patrons, with sex for money included as part of the services to the customer.
If Whiteman’s wife had sex with other men prior to having sex with Whiteman, it is conceivable that she got HIV from one of them. She may not have known it shorty after getting it from one of her sexual partners but eventually, she would have been aware that there was definitely something wrong with her health.
Not all dancers engaged in sex with clients, either inside or outside the club. Some women maintained a clear boundary between dancing, which they performed for pay, and sex which they reserved for their private lives and relationships. However, there are other ways in which an HIV positivre strip dancer can get infected with HIV.
The areas identified where they may get the diseases included transmission of infection through contacts with the ‘metal pole’ they move around, chairs and the stage floor, shared clothing or blankets, and lap dancing. Various parts of dancers’ bodies, including breasts, buttocks, anus and genitalia come in direct contact with the diseases left behind on these items. In addition, dancers may sit naked on chairs and couches in the course of their work thereby being in direct contact with infectious agents contained in vaginal secretions left on these surfaces that might facilitate transmission of STIs among the dancers. If one of them is HIV positive and another woman sits on a couch in which the first one left behind a HIV virus in her secretion and the second woman had a cut on her buttocks, she could get the HIV virus that way.
Some of the exotic dancers who engaged in sex with clientele insisted that condoms were always to be used, thereby minimizing the risk of any form of transmission of HIV or other STIs. However, there are dancers who engaged in sex with customers and do not use condoms. Some generally do not use condoms with their boyfriends, or with customers once they become boyfriends. It is then, that the HIV virus and other STIs are passed on if the women have any of these infections.
Whiteman’s wife claimed that she didn’t know that she had HIV. When first infected with HIV, she may have had no signs or symptoms intitially at all, although it's more common to develop a brief flu-like illness within two to four weeks after becoming infected. Symptoms of the HIV virus in her system would have included: fever, headache, sore throat, swollen lymph glands and a rash. The swollen lymph glands would have been a sign that her body was attempting to fight off an infection. This is when she should have gone to the hospital for a checkup. If she had, she would have learned that she had the HIV virus in her system. However, it is possible that in some instances, after a person is first infected with HIV, he or she may not have any signs or symptoms of the HIV at all for years.That being as it is, it is conceivable that Whiteman’s wife contacted the HIV virus in Bangkok and only in Bangkok and wasn’t aware that she had it until her husband’s HIV symptoms appeared to him.
However, the fact that she didn’t go for a checkup knowing that she was at risk because of her profession in getting HIV is evidence of either criminal negligence or complete indifference to the wellbeing of her husband. In either case, he would certainly have a good case against her for damages.
But the real issue before the court as it currently stands is whether or not the governments, (federal, provincial and municipal) have a legal duty to protect Whiteman and other foolish men who choose to have unprotected sex with exotic dancers resulting in them being infected by these people.
Many governments around the world have taken on the responsibilities of looking after the wellbeing of its citizens by passing laws that mandate seatbelts being worn in cars and helmets being worn while riding motorcycles. They have even prohibited the sale of tobacco to under-age children. That being as it is, it is safe to say that society expects a certain amount of governmental intrusion into our lives in order that we may be protected from our own acts of stupidity or the stupidity and indifference of others to whom we are in contact.
However, does that intrusion also include mandatory medical examinations of exotic dancers? Every applicant for a Canada Immigration visa and some applicants for temporary status in Canada are required to undergo a medical examination by a medical officer before being permitted to reside in Canada. Though medical examinations are generally confined to a standard physical exam including blood and urine tests and x-rays, prior medical records as well as the applicants' mental state are also examined.
If a visa officer in the embassy in Bangkok, after studying the medical report, was aware that Whiteman’s wife to be was suffering from HIV, he would not have given her a visa to enter Canada. If he did give her a vias even when the report said that she was HIV positive, then the federal government would be liable for some of the damages claimed by Whiteman. However, if there was no sign of the HIV virus in her body, then the issuance of the visa would be justified and there would be no fault placed on the shoulders of the federal government. In other words, they would be removed as defendants in the Whiteman’case.
Now the question to be answered is; does the provincial government have an obligation to protect Whiteman and other citizens from HIV carriers?
To answer that question, we have to ask ourselves as to what steps is the provincial government required to undertake to protect its citizens from being infected by HIV carriers?
There are over 26,000 people living with HIV/AIDS in Ontario. Since the beginning of the epidemic, more than 8,700 Ontarians have died of AIDS. Ontario's approach to HIV/AIDS includes prevention, education, testing treatment, support services and research. Anonymous HIV testing is offered at 50 locations in communities across Ontario. These sites offer pre-and post-test counselling that includes information on risk reduction, partner notification and referral.
There is no law in Ontario or any other province in Canada that automatically requires medical testing of its citizens unless a medical doctor determines that a patient is suffering from a disease that can be transmitted to another person. That being the case, the province of Ontario cannot be held liable in a court of law with respect to Whiteman being infected by his wife with the HIV virus.
Now I will deal with the Municipality of Toronto’s obligations, if any. Toronto's Metro Licensing Board has authority over strip clubs. While many dancers operate under a nom de plume, the Board is aware of the real names and identities of licensees. Since 1980, the Board is supposed to ensure that women who have been convicted of prostitution-related offences do not receive licenses. To do this, all strippers must present two pieces of ID (including one piece of photo ID), sign a waiver allowing the Board to look at their police records, and prove that they have the right to work in Canada. The Board does not accept applications from those who are under 18.
Club owners are responsible for the misbehaviour of their employees and dancers, answerable for their conduct to the Board. If a dancer with a license is a prostitute, under age, or has a criminal record, the club owner may not be aware of it. On the other hand, a club that hires unlicensed dancers is begging for trouble and will deserve all that it gets.
Toronto's strip clubs must be also be licensed. Moreover, in Ontario, clubs must also meet the approval of the Liquor Licensing Board of Ontario (now a part of the Alcohol and Gaming Commission) to sell alcohol. Both sets of licenses can be suspended if prostitution does occur on the premises.
There doesn’t appear to be any bylaw in Toronto that states that exotic dancers must submit to medical examinations. There is a very good reason for this. Suppose, for example, they were required to submit to a medical examination every six months and suppose an exotic dancer is free from any venereal disease or from a HIV virus. Any day she could get a sexually transmitted disease or the HIV virus during the six-month period from the time of her last examination to her next one and during that time, she could infect a large number of customers if she has unprotected sex with them and even infect her fellow dancers if she spreads her disease on the metal pole etc. That being as it is, submitting the exotic dancers to periodic medical exams becomes pointless.
As I see it, Whiteman has no case to prosecute against the federal, provincial or municipal governments but as I said earlier, he does have a case to prosecute against the woman who gave him the HIV virus. However, a judge hearing such a case, may conclude that he is equally responsible for his own dilemma. If it had been established earlier that his wife really didn’t know that she was carrying the virus, then he wouldn’t even have a case against her. However, he presumed that even though she was an exotic dancer and had been one even when she danced in bars in Bangkok, she wasn’t carrying the HIV virus in her body. That kind of naivety doesn’t deserve much sympathy from people who conduct their lives based on common sense and I strongly have serious doubts that any judge hearing his case will have any sympathy for him either.
If indifference is the mother of stupidity, then the want of common sense is the father of disaster. Anyone who has unprotected sex with another person whose sexual mores are highly suspect, becomes a child of both stupidity and disaster.
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