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Attempted murder the new aggravated assault?

Second Toronto man charged for failing to disclose HIV status

A second Toronto man has been charged with attempted murder after allegedly failing to tell his sexual partner that he’s HIV-positive.

The 46-year-old was arrested on Jun 4 and may have sexual partners “in both the gay and heterosexual communities” according to a Jun 4 Toronto Police Services alert.

He is facing one charge each of attempted murder, aggravated sexual assault, assault causing bodily harm and assault with a weapon.

Although the bulk of the charges are in connection to allegedly nonconsensual sex the accused had with a woman with whom he was in a relationship, “the attempted murder [charge] is solely on his undisclosed HIV status,” says Const Wendy Drummond.

“He was being processed for the aggravated sexual assault…. It was during that investigation that the officers learned of his HIV status. At that point that the attempted murder charges were laid.”

Why is the charge attempted murder and not aggravated assault as has been the case in the past? A change in case law, says Drummond.

In April a Hamilton man was convicted of two counts of murder for failing to disclose his HIV-positive status to two female partners who subsequently died of HIV-related causes.

This is the second time that attempted murder charges have been laid in connection with HIV nondisclosure in recent months. On Apr 29 a 28-year-old Toronto man was charged with attempted murder for failing to disclose his HIV status to a male partner. In both cases police have issued public safety alerts encouraging anyone who may have had sex with the accused to come forward.

Angel Parks, coordinator of the AIDS Committee of Toronto’s Positive Youth Outreach program, calls the increasing criminalization of HIV nondisclosure “very scary.”

“We don’t have enough information to comment on this particular case but we’re very concerned about the growing trend of extreme criminal charges being laid,” she says. “There is a growing body of evidence that shows that the criminal law is not the best tool to use for these cases and in fact… are sometimes counterproductive to the work that we in the HIV community are trying to do to prevent HIV transmission.”

A major concern is that individuals will choose not to get tested for HIV in order to protect themselves against being charged.

“Somebody has had to inform a person of the person being infected [in order for charges to be laid],” says Drummond. “So there has to be proof that in fact the person had knowledge that they were HIV-positive.”

Rita Shahin, associate medical officer for Toronto Public Health, says that public health can be required by law to tell police if a particular individual has tested positive for HIV.

“When the police get a complaint in front of them then they will come to us with a search warrant and if we have a file on somebody then we have to produce it,” says Shahin.

However individuals who have been tested anonymously — through the Hassle Free Clinic’s anonymous HIV-testing program, for example — will not show up in public health’s records.

Although Shahin says public health hasn’t yet seen a decrease in the number of people getting tested as a result of the recent charges laid, “it’s definitely creating a lot of anxiety and especially for those people who are behaving responsibly it’s [a question of] how do they protect themselves? How do they prove that they’ve disclosed to someone?”

Parks says she’s also hearing from people living with HIV/AIDS (PWAs) who are afraid that they’ll be charged even though they’ve disclosed.

“With any other criminal charge it’s always relied upon for having forensic-type evidence and these cases seems to only be based on he-said, she-said scenarios,” says Parks.

“Now they’re are even more afraid of what the consequences will be when they do disclose… like what if things fall out in a relationship where disclosure has happened? What can they do to protect themselves to ensure they can provide a credible defence if such an incident did occur?”

Because public health also deals with complaints against individuals for nondisclosure this is a scenario Shahin has seen play out.

“That’s why we have to really investigate the complaint to sort out, is it true? Is there a basis to the complaint or is it a relationship that’s gone sour where somebody’s being vindictive?”

Both Parks and Shahin recommend the recently published HIV Disclosure: a Legal Guide for Gay Men in Ontario, produced by the HIV and AIDS Legal Clinic (Ontario).

“It is meant to target gay, bi and men who have sex with men,” says Parks, “but the information contained in it is applicable really to any person living with HIV…. They talk about how to protect yourself against malicious lies or attacks.”

Parks says HIV prevention efforts ( and minimizing of HIV stigma ( would be better served if cases of HIV nondisclosure were dealt with through the existing provincial health legislation instead of the criminal system.

“The AIDS Committee of Toronto believes that the powers under the Health Promotion and Protection Act (HPPA) are preferable to the criminal sanctions because they arise out of legislation that’s specifically designed to promote and protect public health,” says Parks. “Even in the most extreme of these powers, which is detention, it’s intended to ensure access of medical treatment rather than to deprive someone of their liberty as a punishment for misconduct.

“Also the HPPA protects confidentiality to a greater degree and avoids further stigmatizing people living with HIV that are involved in the criminal process.”

But Shahin says even if a situation is being handled by public health an accuser may still choose to purse legal action.

“We can’t tell people we’ve issued an order against someone… so they can come to us, we may have taken a lot of actions, but because we can’t confirm that they may still choose to go to the police,” she says.