The first post-verdict interview with Johnson Aziga has been published today in The Hamilton Spectator. Mr Aziga reveals very little, other than he is angry and confused. Oddly, the piece is split into two, unrelated web pages. Part one is here; part two here.

The article begins with a description of the journalist, Jon Wells, visiting Mr Aziga in his cell.

It is visiting hours at Barton Street jail. A lanky inmate in orange coveralls strolls up to Booth 11. He wears black-rimmed glasses, has tightly-cropped hair and beard, and the richly dark-hued skin characteristic of those from his east African birthplace.

Johnson Aziga, looking relaxed and healthy, sits on a metal stool and gently presses the palm of his big hand against the glass as though greeting a close friend, or family member, even though he does not recognize who is on the other side.

The visitor is a reporter. Aziga, the first man ever convicted in Canada of murder for intentionally spreading the HIV virus, is reluctant to talk. He says lies were told about him in his trial. And that the media coverage was racist. He’d like to take legal action against the media, in fact.

“The stories were racist, always saying I am from Uganda. I’ve lived in this country for 25 years.”

He says he wants the truth to be told. And what is the truth about Johnson Aziga? What is the truth about a man who carries a deadly virus inside him and repeatedly injects it into unsuspecting women during the most intimate of human acts — infecting seven and killing two of them? What kind of a monster does that?

Monster? Is the word extreme? The one who used the word is Aziga himself.

“How do you feel,” the visitor persists, “about the women who died?”

The casual body language now grows rigid, Aziga’s dark eyes flare, he appears annoyed, and puzzled, by the very question.

“How do I feel?”

It then tells the story of Mr Aziga’s life, including his troubled relationships with his ex-wife and some of the complainants, based primarily on already published evidence from the trial.

The term ‘monster’ comes from a letter Mr Aziga wrote to one of the complainants from jail.

“The powers of the devil can be very strong…It could have been a mid-life crisis. But I strongly believe my ex-wife had a big part to play … I can no longer hide the fact that she made me the mean, arrogant, insensitive, carefree, morally dead and socially, the monster of a machine that I am today.”

The piece also highlights the moment when the jury likely decided to find Mr Aziga guilty of murder.

In the end, the critical point in the double murder conviction registered by the jury was that Aziga knew he had infected the two women who were dying, but chose not to tell them about his status when he had opportunity to do so.

It ends where it began, with the main question posed to him during his interview.

Inside Barton Street jail, Johnson Aziga considers the question, growing agitated. How does he feel about the deaths of the two women?

“How do I feel?” he says on the phone. “This is how I feel.”

Aziga holds his middle finger erect to the glass, then stands to leave. Then sits again, his eyes blazing. “I am a human being, I have a heart,” he says, grabbing his chest hard with one hand.

“Do you feel remorse, regret, about the women?” the visitor persists. Aziga stands, and sits again.

“I came from Africa, where people were dying,” he says. “And you want to ask me about this?”

He slams the phone on the hook, walks away. Before he is allowed back into the general population, he rubs his head as though massaging a band of pain wrapped around his temples. Then his body seems to relax once more, he turns to another inmate in the orange coveralls. He leans to the man’s ear. Johnson Aziga smiles as he talks.

“Go over there and tell him I’m the killer,” he says.

An interesting editorial appeared today in Uganda’s New Vision about the use of the criminal law for HIV exposure or transmission in the aftermath of the Johnson Aziga verdict. Mr Aziga was born in Uganda, which is currently debating its own HIV-specific criminal transmission laws.

Self-protection, not law will curb HIV infection

Publication date: Tuesday, 14th April, 2009

A Ugandan living in Canada has been found guilty of murdering his two sexual partners by infecting them with HIV, the virus that causes AIDS.

Johnson Aziga was convicted of first-degree murder of two women and aggravated sexual assault of 11 others. He was sentenced to life imprisonment. In Uganda, the intentional spread of HIV/AIDS is not covered by the Penal Code but the HIV/AIDS Prevention and Control Bill, now in Parliament, which seeks to make it an offence.

Alison Symington of the Canadian Legal Network, says the conviction is troubling because a sexually-transmitted infection is equated to murder.

The case of Aziga raises several legal, ethical and public health issues. Should diseases be legally classified? The Canadian prosecutors say the two women were murdered because Aziga infected them with a ‘slow-acting poison’ since they did not know he had HIV. Would this ‘slow poison’ have been less lethal had the women known Aziga’s health status? What was the women’s HIV status before they had sex with Aziga? The Supreme Court of Canada in 2005 ruled that one partner cannot give consent for sexual relations if the other fails to disclose an HIV infection.

Depending on partners’ ‘disclosure’ of their HIV status is very risky and should not be encouraged. Aziga’s case proves that AIDS is incurable and, therefore, everybody must take care of themselves. Aziga did not rape the women he infected.

They consented to unprotected sex with a person whose HIV status they did not know when they could have negotiated safe sex or declined his advances altogether. It was not only Aziga who was reckless, but the women as well.

By having unprotected sex with multiple partners, Aziga courted the spectre of contracting drug-resistant HIV and recycling it through reinfection. The only sure way of curbing HIV infection is not through legislation but aggressive sensitisation about self-protection and behaviour change since there is no known cure of HIV to date.

This weekend, some of Canada’s major newspapers ran editorials and commentaries about the broader issue of HIV disclosure prior to sex that may risk transmission.

The most enlightened, entitled ‘HIV/AIDS is just one risk of sexual activity’ by Iain Hunter of The Times Colonist (BC capital, Victoria’s, local paper), argues that criminal prosecutions divert attention from the fact that everyone needs to practice safer sex and not trust their partners with such life-changing decisions. He concludes:

But the law does seem to put an extraordinary burden entirely on one of two people engaged in a pursuit that both of them know is risky and always has been.

The criminal law isn’t sophisticated enough to take account of human passion. It isn’t often consulted while clothing drops to the floor.

It doesn’t recognize that we’re all, now, living with HIV/AIDS.

These days, none of us should believe everything we’re told.

Another remarkably enlightened editorial came from The National Post, published last Wednesday after I had written my last posting on the subject. Entitled A fraudster, not a murderer, Barbara Kay argued that although Mr Aziga was morally “despicable” he should not have been charged with, nor found guilty of, murder.

Will all Canadian women sleep easier knowing Aziga no longer prowls the streets in search of prey? No, because “society” was never in danger from Aziga or the afore-mentioned other miscreants. None were rapists: Their victims were women who paid a disproportionately high price for their naivete.

[….]

Aziga’s moral crime was fraud with depraved indifference to human life, not murder, for which there must be intent. Two of Aziga’s 11 relevant sexual partners died of AIDS-related cancers. But four emerged virus-free. People with murder on their minds do not choose to play Russian roulette with their targets.

The sexual aspect is a red herring in this case. The crime is, or should be, knowingly passing a life-threatening infection to an innocent person by any means. The vehicle -penis, needle, amniotic sac– should be immaterial.

Let the punishment fit the crime, and let all who commit the crime be equally punished.

Others were far less positive, including ‘Guilty as charged’ in The Calgary Herald

The conviction should send a strong message to HIV-infected people that playing Russian roulette with a partner’s sexual health could end very badly and that the person carrying the virus will be held responsible if and when it does. This is a public-health issue and that means the greater good of the public comes before individual considerations.

and an editorial in The Milton Canadian Champion, which concluded: “The end result of what Aziga did was no different than if he’d shot these women.”

However, potentially most damaging was Margaret Wente’s article in Saturday’s Globe & Mail (which describes itself as “Canada’s National Newspaper”) that focused exclusively on gay men, even though the vast majority of prosecutions are a result of heterosexual sex.

The article cleverly pulls apart anti-criminalisation arguments by being selective about what we actually say; choosing to quote the most radical or (at least legally) lesser informed anti-prosecution advocates; and finding gay men (including doctors and men living with HIV) who support prosections to quote in the piece.

Peter Troyer, a 37-year-old Toronto man who is himself HIV-positive, has no doubt about where he stands. “It is absolutely reasonable to have a law,” he says. “He exposed people to a potentially dangerous virus without their consent. I wouldn’t want to live in a society that didn’t punish this behaviour at the highest level.”

[…]

Brian Cornelson, a primary care physician at St. Michael’s Hospital in Toronto, has been treating HIV-AIDS patients for 17 years. “What I tell my patients is that people who are positive have 100-per-cent responsibility to not infect others, and people who are negative have 100-per-cent responsibility not to infect themselves. If everybody took that stance, we wouldn’t have any HIV transmission.”

He too believes the position of the activist establishment is flat-out irresponsible. “They’ve put the stigmatization issue in front of the transmission issue,” he says. “For me, as a gay man and a physician, this is particularly dismaying.”

[…]

But the idea of giving anyone a pass because they’re victims makes many people deeply angry. Michael Leshner is one of them. Mr. Leshner, a long-time activist, and his partner were the first gay couple in Canada to be legally married. “The ads give people with HIV-AIDS a moral pass to infect,” he says. “Whenever you define a person or a group as victims, the danger is that you excuse away their conduct. It’s as if they have no responsibility to themselves or others.”

The Globe & Mail had previously published an extremely damning editorial which misrepresented the Canadian HIV/AIDS Legal Network’s stance on prosecutions (and on the Aziga case, in particular). They submitted an op-ed on the subject which was declined “because of limited space”. I have lots of space, and so I’m publishing it here, to at least try to balance some of the harm done by writers like Wente.

More light, less heat: it’s time for rational discussion and guidelines about criminal prosecutions for not disclosing HIV

Recently, a Hamilton man with HIV was convicted of first-degree murder. Two women, with whom he had unprotected sex without disclosing his HIV status, were infected; the prosecution argued their subsequent deaths from cancer were linked to their HIV infection.

There is a well-known adage that “bad facts make bad law” — and, seemingly, for simplistic reasoning. In its editorial on the Hamilton case (“Murder, not policy”, April 7), The Globe and Mail fell prey, as did many commentators, to this syndrome, letting the discomfiting facts of this particular proceeding obscure a careful exploration of when it might, and might not, be legitimate to prosecute someone for not disclosing HIV-positive status. In the interests of a rational debate of this difficult issue, we offer the following observations.

It has been suggested that questioning the expansive use of the criminal law, in response to individual prosecutions for HIV exposure amounts to excusing the behaviour of a particular accused. By this same logic, anyone who questions how Canada’s anti-terrorism legislation functions is condoning a given act of terrorism. Both suggestions are fatuous and do a disservice by foreclosing reasoned discussion of how the law should be serving society.

It is similarly intellectually sloppy, but rhetorically convenient, to equate not disclosing HIV status with rape, simply because the same charge is laid as a result of how aggravated sexual assault is currently defined in the Criminal Code. But unprotected sexual intercourse between two autonomous, willing adults, which often carries risks, is dramatically different than violent or coerced sex, which inherently denies the autonomy of one of the parties. To simplistically equate the two does nothing to advance an effective response to either violence against women or HIV exposure.

Over the past decade, there has been an increase in both the frequency and severity of charges against individuals with HIV for not disclosing, for various reasons, their status to a sexual partner. Prosecutors have pursued serious assault charges even in circumstances where the risk of HIV transmission, already statistically small in any single sexual encounter, has been lowered further by responsibly practising safer sex. In light of this “criminalization creep,” it is all the more urgent to address legitimate questions about where, as a matter of public policy, we should draw the lines.

In the “heat of the moment,” do legal requirements influence people’s disclosure or risk behaviour? They may, for some people in some circumstances. But there is no clear evidence to support this claim, and some evidence to rebut it. Surely those who would extend the power of the state to jail people for otherwise consensual sex should point to at least some evidence if they argue that criminal prosecutions can function as HIV prevention policy in this way?

Do criminal charges for non-disclosure of HIV-status help or hinder women attempting to protect themselves, in particular women in abusive relationships or who are economically or
socially dependent on male partners? What about women living with HIV in such circumstances? Would criminally prosecuting them for not disclosing their HIV-positive status serve the interests of justice?

What specific sexual acts pose a legally “significant risk” of HIV transmission, the threshold established by the Supreme Court as requiring disclosure? Using condoms, engaging in lower-risk sexual activities such as oral sex and individual factors such as the viral load of the HIV-positive partner, reduce dramatically the possibility of HIV transmission, leading a few courts to find that criminal charges are not appropriate in these circumstances. But this remains an unsettled aspect of the law, inviting police and prosecutors to keep pushing the boundaries of the law outward to criminalize more and more people, even those who act responsibly.

Finally, if the criminal law is to serve its proper function, we ought to be questioning its broader public health impacts. Why do some individuals living with HIV not disclose their status to sexual partners in certain circumstances? Stigma is one very real major factor, despite cavalier dismissals by some commentators. To the extent that widespread media coverage of criminal prosecutions reinforces an image of people with HIV as potential criminals, it exacerbates the stigma surrounding HIV and certainly does harm. Are people more reluctant to be tested (believing ignorance is their friend) and do they withhold information about their risk behaviours from counsellors (as this information could be used against them in a criminal proceeding)? Do we encourage a false sense of security among people who believe themselves to be HIV-negative, who want to believe that a legal requirement of disclosure means they needn’t worry about their partner’s HIV status?

Contrary to what has been suggested in some commentary (including in The Globe and Mail’s editorial), we have not taken a position on whether the man recently convicted in Hamilton should have been charged with murder, nor on his guilt or innocence. What we have consistently advocated for is a reasoned evaluation and policy debate with respect to the broader questions raised by using criminal charges in cases of HIV non-disclosure.

One step would be to develop prosecutorial guidelines to guide individual police officers and prosecutors, including indicating when prosecution is not warranted. No one is suggesting that we forgive and forget behaviour that has caused harm. But the criminal law is “society’s ultimate weapon.” Not only is studying, evaluating and critiquing the application of the criminal law appropriate, it is absolutely necessary to ensure it is used sensibly and fairly.

Alison Symington is senior policy analyst and Richard Elliott is executive director with the Canadian HIV/AIDS Legal Network.

Update: Although the Globe and Mail didn’t publish the above op-ed, they did publish this letter by Eric Mykhalovskiy who is a member of the Ontario Working Group on Criminal Law and HIV Exposure, on April 9th.

HIV legal policy needs debate

ERIC MYKHALOVSKIY

April 9, 2009

The Globe and Mail should support the call for a national dialogue on the criminalization of HIV-nondisclosure (Murder, Not Policy – editorial, April 7). Criminalizing nondisclosure may create the appearance the state is doing something concrete about sexual transmission of HIV. But there are difficult issues at stake, far more complex than those arising out of the Johnson Aziga case.

A few places to start: how to set parameters for a criminal law, given new research showing the possibility of transmitting HIV is dramatically reduced when treatments are used; how to update criminal justice to reflect that HIV is no longer the immediate death sentence it was when the legal obligation to disclose HIV was set; how to make sense of sentences for HIV nondisclosure that have been up to 10 times longer than those for other sexual assault convictions; and, yes, how to consider what the broad and long-term impact of criminalization will be on public-health strategies for HIV prevention.

Canadian Institutes of Health Research New Investigator, York University