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Monday, February 28, 2005
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WHEN THE LAW IS AN ASS
There are few things as interesting and infuriating as the study of Canadian criminal law. So often the Criminal Code is more an exercise in social engineering than the finding of truth and punishment of the guilty. Things that should be expected to be frowned upon in polite society, like Holocaust denial, are indictable offences in the former Dominion.
The advent of HIV / AIDS has compounded the stupidity of the system.
Before I continue, let me say that I fully support the laying of charges in a case where someone knowingly and intentionally infects another with the virus, knowing that it will cause them great bodily harm. Such conduct can lead to unknowable numbers of deaths as the initial victim runs the risk of unknowingly infecting others.
In such circumstances, charges of reckless endangerment and manslaughter are not uncalled for. However, this is not the sort of case that I'll be discussing this morning.
This case is troubling for a number of reasons.
Following the deaths of two women he's alleged to have unwittingly infected with the virus that causes AIDS, an Ontario man has been charged with first-degree murder.
Johnson Aziga was originally charged with endangering the lives of 12 women who had been his sexual partners. All of the women said 48-year-old Aziga never told them he was HIV-positive.
Seven of the women in the case contracted HIV. One died in May of last year and the other died in December 2003.
In the eyes of the law, someone can't really consent to sex if they don't know their partner's HIV status. In such cases, they are therefore considered victims of alleged sexual assaults.
That precedent was set in 1998, when the Supreme Court of Canada ruled that a B.C. man was who failed to disclose his HIV-positive status before having consensual sex with two women was nevertheless guilty of aggravated assault.
When the two women died, that meant the assault charges were automatically bumped up to first-degree murder.
Aziga's case, believed to be the first to involve murder charges connected with the spread of HIV, is due back in court on March 11.
You'll remember that I said I support the laying of charges when the infection was knowing and intentional. In my reading of the CTV article, Azinga's conduct was "unwitting." The use of that word implies that he was himself unaware of his HIV status. If this is the case, the Crown's case is an obscene miscarriage of justice.
The Toronto Star has also profiled the case and they contend that the Crown is satisfied that Azinga was aware of his HIV status.
Canadian case law isn't particularly encouraging in this matter, regardless of its outcome. In 1998, as the CTV article notes the Supreme Court of Canada reinterpreted the definition of "consent." Under the new law, a woman is incapable of consenting to sex if she is unaware that her partner is HIV positive.
To a certain degree, I can sympathize with this viewpoint. Yes, a man lying to get laid is not uncommon. However, I would suggest that women have the responsibility to at least ask the right questions and to protect themselves regardless of the answers. This definition of consent serves only to infantilize adults and absolve them of any responsibility of their situation.
In a case like Azinga's, charges of sexual assault are automatically laid. No one has to allege a rape for an accused to be so charged, just that there is a possibility that he or she may have been less than forthcoming about his (or presumably, her) status. Of course, the women's movement applauds the definitional change, which affirms my contention that the women's movement is more about rights than it is about responsibilities.
Even if the charges against Azinga are proven beyond a reasonable doubt, the victims - while tragic - should not be completely absolved of all responsibility. HIV / AIDS has now been with us for 25 years. This is not a new phenomenon and the means of transmission are well known. People have a duty to protect themselves in the first place.
The last part of the Star article may compound this.
The first of the women to die had given police a deathbed statement about her relationship with the accused.
A cousin of that woman told The Spectator shortly afterward that the woman had learned she was HIV-positive about a year-and-a-half before her death.
She then assumed that she had been exposed to the virus by means of a transfusion of blood.
But later a police detective called to say he was investigating the possibility that she had been infected by her former boyfriend.
"She was utterly devastated," the cousin said.
"She was not only upset for herself but for all the other women."
The phrase "all the other women" may imply that the victim knew that the accused was engaging in multiple relationships. This should have caused her to redouble her efforts to protect herself, if not end her relationship with him. That did not happen.
Perhaps she only learned of "all the other women" from the police. If this is the case, I apologize and blame the Star for sloppy writing. It is famous for such things.
Then there is the charges themselves. First Degree Murder is not as simple to be charged with in Canada as you would expect. It is rarely charged. If you set a building on fire and people died as a consequence, you would most likely be charged with Second Degree Murder, if not manslaughter.
In the Azinga matter, the First-Degree Murder charge arises out of the flawed theory that the relationships were sexual assaults. Again, no violence or coercion is present in these cases, just an alleged failure to disclose his HIV status - if he even knew it. These are strong charges built on a very weak foundation.
I do not mean to imply that these victims deserved to be infected. But they could have taken reasonable measures to prevent it. As much as I sympathize with them, I believe that these charges are without merit. Actually, I believe that they send a very, very dangerous message to society.
The reasoning in the Supreme Court's 1998 ruling seems to be that if someone is prosecuted for failure to disclose - and charged with something as serious as aggravated sexual assault - then people will always revel their HIV status. It is not unreasonable to expect that people will take this attitude and be less likely to protect themselves.
Then there are the people who are unaware of their status. In such cases, the law provides no remedy. I'm given to referring to "slippery slopes" from time to time and this might be the slipperiest slope of all. In "sending a message" about HIV transmission, the Canadian justice system might be making that transmission more, rather than less, likely.
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