In both Canada and the United States, courts are imposing heavy criminal sentences for individuals for the transmission of HIV through consensual sex without disclosure to their partners. It is a trend that has alarmed some AIDS activists who fear that the scope of the prosecutions will put many HIV-positive individuals at risk of prosecution for negligence. I discussed the trend on this segment of NPR’s Talk of the Nation.
In Canada, Ugandan-born Johnson Aziga became the first person to be convicted for first-degree murder for spreading HIV. A former staffer at the Ontario Ministry of the Attorney General, Aziga was diagnosed with HIV in 1996 but continued to have unprotected sex without telling 13 women. Seven would later test positive for HIV and two of them died from AIDS. He was convicted on two counts of first-degree murder and ten counts of aggravated sexual assault. The case took five years to get to court.
In the United States, various states have passed “HIV laws.” Many of these statutes were the result of the Presidential Commission on the Human Immunodeficiency Virus Epidemic infamous cases like Gaetan Dugas, who was identified by Randy Shilts in And the Band Played On, who told his victims after sex “I’ve got gay cancer. I’m going to die and so are you.”
Twenty-one states have laws criminalizing such conduct, though there are critical and surprising differences. Some statutes reduce intent to simply the intent to have sexual contact as an HIV-positive person without disclosure. Others technically require an intent to transmit but define that intent as intending to have sex. Most do not require actual transmission. A typical provision is found in California:
120291. (a) Any person who exposes another to the human
immunodeficiency virus (HIV) by engaging in unprotected sexual
activity when the infected person knows at the time of the
unprotected sex that he or she is infected with HIV, has not
disclosed his or her HIV-positive status, and acts with the specific
intent to infect the other person with HIV, is guilty of a felony
punishable by imprisonment in the state prison for three, five, or
eight years. Evidence that the person had knowledge of his or her
HIV-positive status, without additional evidence, shall not be
sufficient to prove specific intent.
(b) As used in this section, the following definitions shall
(1) “Sexual activity” means insertive vaginal or anal intercourse
on the part of an infected male, receptive consensual vaginal
intercourse on the part of an infected woman with a male partner, or
receptive consensual anal intercourse on the part of an infected man
or woman with a male partner.
(2) “Unprotected sexual activity” means sexual activity without
the use of a condom.
(c) (1) When alleging a violation of subdivision (a), the
prosecuting attorney or grand jury shall substitute a pseudonym for
the true name of the victim involved. The actual name and other
identifying characteristics of the victim shall be revealed to the
court only in camera, and the court shall seal that information from
further revelation, except to defense counsel as part of discovery.
(2) All court decisions, orders, petitions, and other documents,
including motions and papers filed by the parties, shall be worded so
as to protect the name or other identifying characteristics of the
victim from public revelation.
(3) Unless the victim requests otherwise, a court in which a
violation of this section is filed shall, at the first opportunity,
issue an order that the parties, their counsel and other agents,
court staff, and all other persons subject to the jurisdiction of the
court shall make no public revelation of the name or any other
identifying characteristics of the victim.
(4) As used in this subdivision, “identifying characteristics”
includes, but is not limited to, name or any part thereof, address or
any part thereof, city or unincorporated area of residence, age,
marital status, relationship to defendant, and race or ethnic
Other states, as in the recent case of Philippe Padieu, have used conventional charges to prosecute such individuals. We have also seen enhanced charges against HIV-positive individuals such as the recent case of the man given 35-years for spitting on an officer. We have also seen civil lawsuits based on a failure to disclose, including a recent lawsuit against parents of the carrier.
These prosecutions, however, raise concerns over the use of highly circumstantial evidence, particularly in the Texas case where some victims were infected at swinger clubs and had multiple partners. In that case, the “deadly weapon” was the defendant’s blood. For HIV-positive people, that can be a chilling notion that makes any sexual contact potentially a criminal matter. On the other hand, in cases like the Canada and Texas cases, you have clearly reckless and knowing conduct that placed these women at obvious risk of death.
In prior years, individuals would be charged with conventional crimes and the HIV element would be considered at sentencing as an aggravating factor. For example, Nushawn Williams was accused of exposing 13 women and girls to the disease in 1997 in New York. He was convicted of statutory rape and reckless endangerment, and was sentenced to four to 12 years. He was recently denied parole.