Should a man be convicted of attempted murder for having unprotected sex?

An HIV-positive Ottawa man is considering an appeal after a judge ruled he must stand trial on four charges of attempted murder for having unprotected sex with young men without telling them of his condition.

A judge's decision on November 5, 2011 to reinstate the most severe charges against Steven Paul Boone overturns an earlier ruling at his preliminary hearing, which held failing to disclose HIV status cannot be attempted murder because, medically, HIV infection is no longer inevitably fatal.

Justice Albert Roy in the higher court ruled that the decision was flawed, however, because it wrongly weighed medical evidence that should have been dealt with at trial, Instead, he found there was sufficient evidence to merit a trial on attempted murder, which requires proof of intent to kill and carries a maximum sentence of 14 years.

Barring a successful appeal, this is one of the few times in Canada an accused will be tried for attempted murder — rather than aggravated assault or aggravated sexual assault — for failing to inform sexual partners of HIV-positive status.

With the allegation of intent to kill, Boone's case recalls the case of Johnson Aziga, who in 2009 became the first person convicted of first-degree murder in Canada for failing to disclose his HIV-positive status to two women who later died of AIDS-related cancers. I will get into the issue of whether it was murder he committed later in this article.

Boone, 30, faces two dozen charges relating to unprotected sexual contact with eight people, including administering a noxious substance and violating the terms of his probation, plus one count of possessing child pornography. The investigation began in April 2010, when a male complained to police he had contracted an infectious disease from Boone.

But the primary legal conundrum, soon to be revisited by the Supreme Court of Canada in two unrelated cases, is whether sex with a person who has HIV involves a significant risk of serious bodily harm.

As a matter of medical fact, the answer has been changing. It is now dramatically different from where it was in 1998, when AIDS was at its peak and the Supreme Court last reviewed the law in the case of Henry Gerard Cuerrier. That precedent, which remains on the books, holds that failing to inform sexual partners of HIV-positive status, regardless of whether infection occurs, involves a type of fraud and amounts to aggravated assault.

Since then, about 80 people have been charged in such cases, but hardly ever with attempted murder.

"There are no reported authorities that either of us (prosecution or defence) could find (about failing to disclose HIV as attempted murder)" said Boone's lawyer, Ian Carter. Other cases have further complicated the issue, made the law seem behind the times and undermined the premise that death is a probable consequence of HIV exposure.

For example, in 2005, a judge instructed a British Columbia jury that an accused had no duty to disclose his HIV-positive status if he used a condom at all times.
In two other cases, to be jointly appealed at the Supreme Court, the HIV viral load of the accused was so low, the risk of transmission was dramatically reduced and so did not constitute a "significant risk of serious bodily harm" under the law.

Boone's case is especially unusual, because the charges go beyond aggravated assault to attempted murder, which in law; requires an intent to kill.

When a preliminary hearing judge weighed the medical evidence and decided it was unreasonable to see death as a predictable outcome of HIV infection, AIDS advocates welcomed the quashing of the four attempted murder charges as a victory for common sense and compassion.

The problem, as Justice Roy of Ontario Superior Court has now ruled, is the job of the preliminary hearing judge is not to take sides on what the evidence means. Rather, it is to determine whether there is enough evidence that a properly instructed jury could reasonably return a guilty verdict of attempted murder.

Deciding that no reasonable jury could convict on attempted murder in this case was an inference too far, Roy ruled. "The distinction between weighing inferences and deciding which inferences are reasonable can at times be very subtle and have a margin of disagreement," he wrote.

He also ruled, "One can appreciate that, given the medical advances made in the last 15 years in the treatment of HIV, why the preliminary hearing judge would have some reluctance in concluding that the accused had the specific intent necessary to sustain a conviction for attempted murder.”

It would appear that Justice Roy was more concerned about a procedural matter rather than the issue of whether or not a HIV carrier who has unprotected sex is guilty of attempted murder. This is evident in his ruling in which he said in part;

"Nevertheless, given all of the evidence he had to consider, it appears that he accepted some of the evidence to the exclusion of the balance of the rest of the evidence before him. In so doing, he impermissibly weighed inferences resulting in accepting inferences favourable to the defence. That whole process is one that should be left to the trier of fact."

No trial has been scheduled. The deadline for filing an appeal is later this month.

For the purpose of this article, I am going to deal only with the issue of whether or not a person who has HIV and has unprotected sex with a sexual partner is guilty of attempted murder or if the partner dies, is guilty of first degree murder.

As stated earlier in this article, for a person to be convicted of attempted murder, the court or jury has to be convinced that the accused intended to murder his sexual partner by submitting his partner to being a recipient of the HIV virus.

Now there is no doubt in my mind that if someone has HIV and knows it and has unprotected sex with a sexual partner who doesn’t initially have HIV, that someone is guilty of causing serious bodily harm on his sexual partner, a crime that is punishable in Canada with a maximum sentence of ten years in prison.

That offence includes anyone whose sex act interferes with his sex partner’s health or comfort. To be convicted of such an offence, the court or jury has to be convinced that a person accused of this crime was aware that not only that he had the HIV virus in his body but also aware that the HIV virus can cause death to anyone who has it.

Consent by his sex partner to having sex with the accused is no defence to this charge even if the sex partner is aware that the accused has the HIV virus inside his body. A person in Canada and no doubt everywhere else cannot consent to being seriously bodily harmed, especially if the sex act brings about the death of the person giving his or her consent. In R. v. Cuerrier, one of the justices in the Supreme Court of Canada said in paragraph 124 of its ruling; “In my view, it should now be taken that for the accused to conceal or fail to disclose that he is HIV-positive can constitute fraud which may vitiate consent to sexual intercourse.” unquote

Without disclosure of HIV status there cannot be a true consent. The consent cannot simply be to have sexual intercourse. Rather it must be consent to have intercourse with a partner who is HIV positive. True consent cannot be given if there has not been a disclosure by the accused of his HIV–positive status.

What would the charge be if the sex partner dies as a result of him or her being infected with the HIV virus by the accused?

Section 222(1)(5)(a) of the Canadian Criminal Code states; “A person commits culpable homicide when he causes the death of a human being by means of an unlawful act.” unquote

The possible consequence of engaging in unprotected intercourse with an HIV-positive partner is death. Death doesn’t always come about when a person is infected with the HIV virus but the possibility of death still exists. Further, nit telling your partner that you are HIV—positive is an unlawful act.

Johnson Aziga (born 1956) is a Ugandan-born Canadian man who was a resident in Hamilton, Ontario, Canada. He is notable as the first person to be charged and convicted of first-degree murder in Canada for spreading HIV, after two women whom he had infected without their knowledge, died.

Aziga was diagnosed and advised that he was HIV positive on December 10, 1996. He was subsequently counseled by public health personnel to advise any sexual partners of his HIV status prior to engaging in penetrative sexual activity.

Between June 1, 2000 and August 30, 2003, Aziga engaged in unprotected penetrative sexual activity with 13 named complainants and failed to disclose to them that he was HIV positive. As a result of the applicant’s unprotected penetrative sexual activity with the 13 named complainants, seven of the complainants became HIV positive. Two of the complainants, S.B. and H.C., died as a result of complications associated with their HIV infection. S.B. died on December 7, 2003. H.C. died on May 19, 2004.

The gravamen of the offence being charged is not the fact that the accused applicant is HIV—positive, but rather that he engaged in unprotected penetrative sexual activity with the 13 named complainants, knowing he was HIV—positive and further failing to disclose to them that he was HIV—positive, thereby exposing them to serious bodily harm without their knowledge or consent.

On April 4, 2009, Aziga was found guilty of two counts of murder in the first degree, 10 counts of aggravated sexual assault, and one count of attempted aggravated sexual assault by nine men and three women on Hamilton Superior Court jury. Aziga was sentenced to life imprisonment with no possibility of parole for 25 years, the mandatory sentence in Canada for a conviction of first-degree murder.

On August 2, 2011, a court in Hamilton, Ontario granted a request by Crown prosecutors to have Johnson Aziga jailed indefinitely under the Dangerous Offender act, because he is believed to be at a high risk to re-offend.
The definition of murder in Canada includes the following;

229 (a)(ii) “Culpable homicide is murder where the person who causes the death of a human being means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not.” unquote

There is no doubt in my mind that the grounds for an appeal in a case like that one would be that he didn’t mean to cause his victims bodily harm and that he didn’t really believe that the women would die from being infected by him, considering that he didn’t die from the virus.

The issue of whether there is some evidence that a reasonable jury could find that Steven Paul Boone had an intention to kill is a more difficult one to resolve. The analysis that needs to be conducted comprises of two steps:

(a) Is it a reasonable inference that a jury could draw from the evidence that Mr. Steven Paul Boone had the intention to kill someone?

(b) If so, can this intention be transferred to the unnamed victims?
The intent to kill is the highest intent in murder and there is no reason in logic why an attempt to murder, aimed at the completion of the full crime of murder, should have any lesser intent. If there is any illogic in this matter, it is in the statutory characterization of unintentional killing as murder. The mens rea (criminal intent) for attempted murder is, in my view, the specific intent to kill.

A mental state falling short of that level may well lead to conviction for other offences, for example, one or other of the various aggravated assaults, but not a conviction for an attempt at murder. It is a trite statement of the law that for murder, the requisite intention including an intention to kill can be inferred from circumstantial evidence of conduct, despite the absence of words spoken regarding intention. However, the distinction between reasonable inference and speculation in relation to circumstantial evidence is not always easy to determine in many cases.

While a jury is entitled to draw the inference that persons intend the natural and probable consequences of their actions, it is not always a reasonable inference that having unprotected sex while carrying the HIV virus and not informing your sex partner that you are a carrier of the HIV virus, is really evidence of an intention to kill your sex partner.

There is no evidence of any animus or motive on the part of Steven Paul Boone to kill anyone. There are no utterances or conduct by him from which to infer such an intent.

Admittedly, there is recklessness and indifference on his part about the wellbeing of his sex partners but is that evidence of his intention to murder them? I think not.

Having sex with another person while you are carrying the HIV virus is an inherently dangerous act from which one can infer an intention to kill. However, I cannot agree that it is open to a jury to infer an intention to kill on that basis alone.

I see a danger in convicting him of attempted murder. Such a charge could be applied in other cases where they too would not warrant it and it is conceivable that accused persons will be bullied by the prosecutors into pleading guilty to lesser offences in order not to be facing the more serious charge of attempted murder even when the latter charge doesn’t merit it.

There is a way in which such of an offender can be dealt with that will protect society and that is for the court to classify him as a dangerous offender. As such, he could be sentenced to prison and spend the rest of his life in prison so long as he is HIV positive. That way, society will be protected.