Canada - HIV Transmission 'Murders'
posted: 08/04/2009
A Canadian man who is thought to have recklessly transmitted HIV to seven women, two of whom died, has made legal history by becoming the first person ever to be convicted of first-degree murder for sexual HIV transmission.
The case has reignited the criminalisation debate in Canada, which has prosecuted more HIV-positive individuals for sexual HIV exposure or transmission than any other country in the world.
There are significant doubts about whether he was the source of infection including for both murder charges. An appeal is likely.
Two Murders, 10 sexual assaults
The trial, which lasted six months, ended last Saturday, when a nine-man, three-woman jury found Johnson Aziga, 52, guilty of two counts of first-degree murder, ten counts of aggravated sexual assault and one of attempted aggravated sexual assault after deliberating for three days.
Mr Aziga, who was born in Uganda, came to Canada as a refugee in 1990 and was diagnosed HIV-positive in 1996. After the dissolution of his ten-year marriage in 1998, Mr Aziga dated several women that he met through his work as a research analyst with the Ontario government, and others that he met in bars in Hamilton, a suburb of Toronto.
Canadian Law: You must tell partners about HIV before sex
In October 2002, a newly diagnosed woman named Mr Aziga as a recent sexual contact. Since 1998, Canadian law has required individuals diagnosed with HIV to disclose their HIV status to their sexual partners prior to sexual contact that may risk transmission, and Mr Aziga was ordered to practice safer sex under Section 22 of Ontario’s Health Protection and Promotion Act. He was also required to provide a list of his previous sexual partners.
Canada uses its public health powers to order HIV+ people to use condoms
In March 2003, another newly diagnosed woman also named Mr Aziga as a recent sexual contact. The Hamilton health department issued Mr Aziga with a second public health order and informed the police, who put Mr Aziga under surveillance. He was arrested at his home in August 2003 whilst having unprotected sex with a woman who has since tested HIV-positive and identified in court as Ms C. She had been dating Mr Aziga since February 2003 and last year, she filed a C$6m (£3.3m) civil suit against Hamilton’s police and public health departments for allegedly being used as “bait.”.
Following a widespread media appeal from the police for more sexual contacts, and, in late 2003 and early 2004, the death of two of the women who had also named Mr Aziga as a previous sexual partner, Mr Aziga was eventually charged with two counts of first-degree murder and eleven counts of aggravated sexual assault. Canadian law mandates that if someone dies following aggravated sexual assault, then this automatically results in first-degree murder charges.
5 years waiting in jail before trial
Mr Aziga, who has been in prison since his arrest in August 2003, went through six defence teams delaying his trial, which finally began in October 2008. The court heard evidence from all eleven complainants, seven of whom believed that Mr Aziga had infected them with HIV, including pre-recorded video and audio testimony from the two women who had died. Both claimed that Mr Aziga had not disclosed his HIV status to them before having unprotected sex, and that they would not have had sex with him had he done so.
One of the women, known as ‘S.B.’, died in December 2003 at the age of 51 as a result of non-Hodgkin's lymphoma that was diagnosed in 2001. However, she was not tested for HIV until July 2002. She claimed that Mr Aziga infected her with HIV during the summer of 2000.
The second former sexual partner of Mr Aziga to die, known as ‘H.C.’, dated Mr Aziga for a year from October 2001. She was diagnosed HIV-positive in November 2002, began antiretroviral therapy a year later, but in April 2004 was diagnosed with Burkitt's lymphoma and died in May 2004.
Doubts about science for source of infections
Bagambiire, the defence barrister, argued the Crown had not proved beyond a reasonable doubt that H.C., 49, who died on May 19, 2004, and S.B. 51, who died in Dec. 7, 2003, were not already infected with HIV before beginning sexual relationships with his client.
The lawyer criticized Hamilton police for narrowly focusing their investigation on Aziga while ignoring evidence that the women may have been infected by another sexual partner.
"H.C. had two African lovers. Police focused on Aziga, who was born in Uganda, to the total exclusion of H.C.'s other lover, whomever she was with from 1999 to 2001," said Bagambiire.
He said H.C. told clinicians at an HIV clinic in Toronto where her health was being monitored by an immune specialist that she'd had three sexual partners since 1999 and that two out of three of the men had emigrated from Africa, where AIDS is endemic.
H.C., who met Aziga while both worked for the Ontario Ministry of the Attorney General, was diagnosed with HIV in November 2002, about a month after their last sexual encounter and a year after starting a relationship with him.
"So we now have three players who are actively involved as sexual partners of the late H.C., any of whom could have given HIV to her," said Bagambiire.Several expert witnesses testified that although such rapid progression is rare, it is not unheard of."
Although Mr Aziga’s defence team raised doubts about the source of HIV in these women and several others who had other sexual partners in the same sexual network and who may also have shared a similar strain of subtype A, the jury instead believed the testimony of Dr Paul Sandstrom, director of the Public Health Agency of Canada's national HIV and retrovirology laboratories, who concluded that only Mr Aziga could have infected the seven complainants who were HIV-positive.
George House Trust comment
The defence doesn't seem to have called any expert virologist to challenge the evidence of Dr Sandstrom of the Public Health Agency on the links between the man and the women's infections. In recent UK cases virologists have shown how fatally flawed several recent prosecutions cases were. Several recent UK cases have been dismissed because the women had other partners who might have been the source of HIV- such as the case in Manchester in February 2008.
Science simply cannot prove person A infected person B with HIV. It can only prove the opposite - that the defendant couldn't have infected the person. It can also help show how closely similar the infections are, but can't show who had the HIV first.
The lack of strong challenge to the virological evidence seems to have been a serious mistake by the Canadian defence.
Testimony from Dr Julian Gojer, a forensic psychiatrist hired by Mr Aziga's defence team to assess Mr Aziga's mental state and offer explanations for his behaviour appeared to backfire during cross-examination by the prosecution. Although Dr Gojer had found that Mr Aziga’s traumatic experiences as a younger man in Uganda and Kenya had resulted in a cognitive impairment that may have been exacerbated by his HIV infection, he also admitted that Mr Aziga was still capable of knowing that it was wrong to have unprotected sex without disclosing his HIV status.
During his summing up last Wednesday, Superior Court Justice Thomas Lofchik told the jury that if they found that the following nine elements were proven beyond a reasonable doubt, then they could find Mr Aziga guilty of murder:
- That he had unprotected, penetrative sex with both of the deceased women.
- That he was aware he was HIV-positive at the time of having sex with each woman.
- That prior to sex, he was aware that he was required by law to inform all prospective sexual partners of his HIV status.
- That he failed to disclose his HIV status to the two women.
- That the women would not have consented to unprotected sex had he disclosed.
- That both women were infected with his virus.
- That he caused the women's deaths by infecting them with HIV during sex.
- That he meant to cause the women's deaths, or meant to cause them bodily harm that he knew was likely to cause their deaths, and was reckless whether death ensued or not.
- That the aggravated sexual assault, the HIV infection, and the death of the two women were part of one continuous sequence of events forming a single transaction.
The jury found Mr Aziga guilty of both murder charges and ten of the eleven aggravated sexual assault charges, primarily because Canadian law essentially defines consensual sex without prior disclosure of HIV status as fraud.
Sentencing in May - automatic life of 25 years for murder
Mr Aziga will be sentenced on May 7th. A first-degree murder conviction leads to an automatic life sentence with no eligibility of parole for 25 years; each aggravated sexual assault conviction carries a maximum prison sentence of 14 years.
Appeal expected
Mr Aziga has already instructed his lawyer to ask legal aid for more funding for an appeal.
Canadian prosecution protests
Although Mr Aziga’s double-murder trial is unique, almost 90 HIV-positive people have been prosecuted, and almost 70 convicted, of criminal HIV exposure or transmission in Canada since 1989. Canada's population is about half the UK's population. In the UK under 20 people have been prosecuted.
Some of Canada’s most prominent HIV clinicians, including Dr. Mark Wainberg and Professor Julio Montaner, have recently spoken out against such prosecutions, primarily on public health grounds.
Source and reports in the local paper
More discussion and other cases in Edwin's criminal transmissions blog
Permalink