Is it Murder?
BY Benjamin Ryan
January 01 2009 12:00 AM ET
Is HIV transmission murder if the person who becomes infected dies of AIDS-related complications?
What if the HIVer knew of his or her serostatus in advance and failed to disclose it? What if he or she lied and claimed to be HIV-negative knowing full well that it was possible to infect another?
Is HIV a deadly weapon?
Those were precisely the thorny legal'and moral'issues addressed this fall when an HIV-positive Canadian man was charged with murder for transmitting the virus to others. Legal experts believe the case is the first instance of a U.S. or Canadian murder trial in which HIV was the alleged weapon.
Johnson Aziga, a 52-year-old Ugandan immigrant living in Hamilton, in the province of Ontario, faced two counts of first-degree murder and 11 counts of aggravated sexual assault for his sexual relations with 11 different women. Seven became infected with HIV, and two of those women have since died of AIDS-related causes.
According to the prosecution, Aziga was counseled about the risks of transmission and was ordered to protect his partners, yet he kept his HIV infection a secret from the women, in some cases outright lied to them, and did not use safer-sex practices. And so the Canadian court prosecuted Aziga under a general murder statute. Canada's supreme court has previously ruled that sex without disclosure of one's HIV-positive serostatus constitutes aggravated assault. [At press time the case was still pending.]
Davies Bagambiire, Aziga's lawyer, says it is 'debatable' that any circumstance of intentional HIV transmission could be legally quantified as murder, adding, 'I've been saying quite loudly that criminalization of HIV is not the way to go'that this should be dealt with as a health issue and an issue of education.'
Not That Simple
Chris Bell, an HIV-positive postdoctoral research fellow at the Center on Human Policy, Law, and Disability Studies at Syracuse University, isn't so sure the legal issue is as cut-and-dried as Bagambiire suggests.
'Is HIV transmission murder?' he asks. 'It's a straightforward question, but it warrants a rich, nuanced response.' He argues that there are indeed instances of HIV transmission that can constitute murder. 'That's why we have a justice system in this country,' he continues, 'to weigh the facts and the evidence.'
According to William Cember, the attorney who defended Nushawn Williams, the notorious HIV-positive young man who was the source of a mini epidemic in New York in the late 1990s, a murder trial requires the prosecutor to prove that the defendant had intent to kill. 'Then there's also'at least what we call in New York'depraved indifference,' he adds, 'which is the equivalent of shooting a shotgun in a theater. Maybe your goal wasn't necessarily to kill anyone, but anyone with any kind of common sense would know that firing a shotgun in a crowded theater is going to lead to someone's death.'
Such a reckless frame of mind can qualify as a de facto intent to kill under the law, Cember says. Canadian laws have similar provisions to determine reckless behavior, says Brendan Crawley, a spokesman for the ministry of the attorney general in Toronto.
However, Charles King, the HIV-positive executive director of New York's Housing Works, who holds a law degree from Yale, doesn't see any intent to kill in the Canadian case. 'All this is is somebody wanting to get laid and, as a consequence, not disclosing his status'or lying about his status so that he can do that,' King says. 'But the only intent that evidence shows is an intent to fuck. And at the end of the day, that's not a crime.'
Questions in Law
Not everyone shares King's legal interpretation of intent. David B. Frank, a criminal defense attorney in Austin who in 1998 defended a man accused of aggravated assault for transmitting HIV, says there's a wide spectrum of intent'from the obvious to more gray areas. 'Let's say someone has the virus in a jar, and he knowingly and intentionally transmits it by injection,' he explains. 'Yes, I think if a person then contracts the disease and dies from the injection, that's murder.'
In fact, there have been a handful of such cases, including the 1998 conviction of a Louisiana physician who injected his mistress with an HIV sample he'd obtained. He was convicted of attempted second-degree murder and sentenced to 50 years of hard labor. But very few instances of HIV exposure are as dramatically clear-cut as cases like this, notes Frank.
'I think you can move one degree at a time away from that position to the place where you have two consenting adults having unprotected sex,' he explains, 'and find that there are shades of gray in every degree you move away from that example of a knowing and intentional transmission.'
Ronda Goldfein, executive director of the AIDS Law Project of Pennsylvania, says such an egregious example as that of the Louisiana doctor 'doesn't need to be an HIV transmission case. That is a very serious assault. That's different from an idea of adults consenting to have sex and the government feels like it has a role in what consenting adults are doing in their bedrooms.'
My Brother's Keeper?
What, then, are the moral implications that arise from sex between consenting adults that results in an HIV transmission'particularly when one partner knows of his or her infection and doesn't disclose that fact or even lies about it?
Bell says that if he found out someone he had infected had died of AIDS, 'I would still identify as a moral person, because it would make me feel something. It wouldn't necessarily make me feel responsible, but it would make me feel aware of the way that HIV works. It's not like I go out with a gun and I shoot somebody. You can see I'm clearly responsible for that. There's never been a moment in my life where I've engaged in any sexual activity and thought, I'm trying to kill you, either now or somewhere down the line.'
But how does he feel toward the sex partner who infected him'who hid from Bell that he also had been having unprotected sex for years with a man diagnosed with AIDS? Does he apply different legal and moral standards to the circumstances of his own infection?
'If I were to die tomorrow, should the person who infected me be tried for murder? I don't think so,' Bell says. 'While I have not talked with the person who infected me 11 years ago, I imagine he knows what he did. I imagine there are times, many moments, where he is neither troubled nor discomfited. And then there might be other times, unexpected moments, that it dawns on him and makes him uncomfortable. But in critiquing him, I must critique myself: There were two actors in transmitting HIV from him to me. I am just as responsible. I've accepted my role.'