Criminalizing  HIV:  How  far  should  the  law  go?

The white background behind the text is merely an anomaly in the printing. 

In many countries, the intentional or reckless  infection of a person with the human immunodeficiency virus (HIV) is considered to be a crime. This is often found in some laws that consider it as criminal exposure to HIV, even though it doesn’t require the transmission of the virus and often, as in the cases of spitting and biting, does not even include a realistic means of transmission. 

People who do so can be charged with criminal transmission of HIV, assault, manslaughter, attempted murder  or murder. Some countries have enacted laws expressly to criminalize HIV transmission (or HIV exposure), as is done in the United States and Canada.

The crime is where sexual transmission is brought about where one person with an HIV infection engages in unprotected vaginal or anal intercourse with another who does not have the HIV infection thus transferring the virus into an uninformed victim.

I should point out that having oral sex does not result in the person receiving sperm in his or her mouth getting an HIV infection because the gastric acid in one’s stomach kills the virus before it can do any harm. However having vaginal or anal sex can bring about an HIV infection if the donor is HIV positive and the recipient is not.

There is no law that prohibits two HIV positive victims from having unprotected sex. The law only applies if one of the sexual partners does not have the HIV infection and the other has it and does not tell his or her sexual partner that he or she has it.

There have been some extremely severe sentences given to HIV donors who had unprotected sex with a person who is HIV infection-free and the donor does not`t tell that person that he or she had it.

In August 2010 the eyes of the world were upon an HIV-positive German pop star found guilty of having unprotected sex with her ex-partner and infecting him with the HIV infection. Nadja Benaissa, 28, was found guilty and given a two-year suspended sentence as well as 300 hours of community service. Of course, one is tempted to ask this rhetorical question. Suppose he was just a nobody, would he get the sympathy of the judge then?

Johnson Aziga who is HIV positive was declared a dangerous offender in Canada after having unprotected sex with 11 people in which five became infected and two others died as a direct result of being infected by his virus, They originally didn`t have the HIV infection but after he had sex with them, they developed the infection. He was declared a dangerous offender and given a life sentence without the possibility of parole for 25 years due to these two deaths. Such a sentence in my opinion is justified. Admittedly, he didn`t plan their deaths but he had to have known that some people die from the HIV infection and knowing this, he was reckless and indifferent to the fact that they might die—which as it turns out, they did.

 On October 17^th, 2002 Aziga was served with a Section 22  Order under the Health Protection and Promotion Act at his home.  The order required him to inform any partners of his HIV status prior to engaging in penetrative sexual activity, to wear a condom during sexual activity, and to provide the public health department with the names and contact information with respect to partners with whom he had engaged in penetrative sexual activity since his HIV diagnosis in 1996. He purposely disobeyed that Order. He acknowledged in court that he did not disclose his HIV status to the 11 victims and accordingly did not give them the opportunity to decide if they wished to engage in sex with him.  

Justice Edwin Cameron, a judge of South Africa's Constitutional Court admits that in the case of Johnson Aziga killing two sexual partners as a direct result of him having unprotected sex with them was the exception and his 25-year prison sentence was justified. However, he also said that Canada's relentless practice of invoking the criminal law against people with HIV and AIDS is only intensifying the stigma surrounding the conditions and contravenes United Nations guidelines. Since the late 1980s, more than 90 people with HIV in Canada have been charged and almost 70 convicted of transmitting or exposing others to the disease.

So far as the likelihood of harm caused by similar conduct in future is concerned, if Aziga were to continue with his antiviral medication in the future, his having unprotected sex with uninformed sexual partners may still cause infection of his sexual partners.  There is no evidence that an undetectable viral load means that such an offender is non-infectious.  There can be blips in viral load or other infections may trigger a rise in viral load at some time in the future.  While HIV/AIDS infection is no longer a death sentence like it was in the past, it is a life altering injury that the victim will have for the rest of his or her life.  

As I see it, if the HIV/AIDS person wants to have sex with another person, especially someone who doesn’t suffer from this infection, that person has a moral and legal obligation to inform his sexual partner that he is suffering from the HIV/AIDS virus. To do otherwise is no different than giving the keys to your car to a friend when you know that the brakes are likely to fail.

Now if it can be established that the donor purposely infects another person believing that such a victim will probably die as a result of  having unprotected sex with the donor, and the person doesn’t die, then the donor should be convicted of attempted murder but if the person dies, then the conviction should be for murder. If the donor after being released from prison infects another sexual partner, he should then be sentenced to life in prison without any hope of parole.

If on the other hand, he can convince the court that he didn’t believe that his sexual partner would die from being infected by the donor’s virus and the victim dies, the conviction should be one of manslaughter.

If a donor has unprotected sex with a person who doesn’t get infected but the donor didn’t inform his sexual partner that he has the HIV/AIDS virus, he should be sentenced to a year in prison because his sexual partner will suffer from the anxiety of wondering if he is going to be infected. Even if donor’s sexual partner doesn’t die but ends up requiring life-long treatment, the sentence should be extremely severe. A minimum of ten years in prison is what I have in mind and for manslaughter, fifteen years and attempted murder, twenty years and for murder, twenty-five years. And these are the years when he can apply for parole. If the parole board thinks that the donor will still be a danger in society, they can deny him his parole.

The United Nations recommends that those with HIV/AIDS should be charged with exposing people to the virus through unprotected sex only in cases where they intended to transmit the virus and transmission actually occurred. Many other countries, including England, have developed similar guidelines.

That would be hard to prove in a court of law. If such an accusation was made by the arresting police, the HIV/AIDS donor intended to transmit the virus, he could simply say that he didn’t believe that he would transmit the virus or alternatively, he could claim that his sexual partner told him to go ahead with the unprotected sex even if that allegation about the sexual partner was untrue.

What I consider most unjust is what is going on in the State of Ohio. As an example, Judge Bradley Harris sentenced 34 year-old Nick Clayton Rhoades to 25 years in prison, the maximum punishment under Iowa's draconian criminal HIV transmission laws, following his guilty plea of not notifying his gay sexual partner whom he met online and had a one-time sexual encounter with the man that he had HIV/AIDS. There was no transmission of HIV between the two men and the male complainant has not tested HIV-positive. That sentence however wasn’t as bad as the one that Willie Campbell who was HIV positive received. He got a 35 year prison  sentence for spitting s on someone who wasn`t HIV positive. These kinds of sentences are outrageous and conflict with the rights of its citizens. 

There is a case in England in which a very severe punishment was proper. Fitzroy Kaisley carried out three sexual attacks against three women after he knew that he had previously contracted the virus that causes AIDS. The 26-year-old carried out his attacks on the women at knife point, robbed one of the women and also attempted to rape a grandmother, threatening her with a screwdriver. Sentencing him to five life sentences at Wolverhampton Crown Court, Judge Frank Chapman said the crimes had been made all the worse because he had used violence coupled with the fact that he was HIV positive. There was no evidence that he deliberately set about infecting these women but he was utterly reckless as to whether he might infect them. What the judge was doing was protecting women in the future who might be sexually attacked by a man who has HIV/AIDS. If he hadn’t tried to rape them, and the sex was consensual, his imprisonment would be much less.

Almost half the countries that have signed the European Convention of Human Rights have prosecuted and convicted people for having unprotected sex, knowing they were HIV-positive, without disclosing their status. There are similar examples as far a field as New Zealand and Australia.

Once it is established that a person with HIV/AIDS has had unprotected sex with someone, should that donor’s picture be posted on the Internet and also be printed in local newspapers? If it is so publicly disclosed, the stigma will be horrendous. In my opinion, it should be posted since there may be people who are victims of this person and they may not know that they may have been infected. If they see his picture and recognize him, they can seek medical help.

I believe that anyone who has genital herpes and has unprotected sex with someone who is unaware that his or her sexual partner is infecting him or her should also be punished. This disease is a permanent one and the pain from having it is no different than having cold sores in the genital area. A man in England kept his infection a secret when he and his sexual partner had sex together in 2009, and later he denied it when confronted by his partner. He was sentenced to prison for 14 months. I think he should have got a more severe punishment. His victim is suffering from a painful disease that will never go away and his former sexual partner has to inform her partners that she too has the disease. His relationship with the woman he professed to love was a betrayal of trust.

I can appreciate why having sex without the use of a condom feels better to a man but that is not a justifiable excuse for having unprotected sex with another person when the man is HIV positive even if his sexual partner is aware of the man’s HIV/AIDS status. The betrayal of one’s trust at the expense of another is deserving of punishment.