AIDS as murder

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Tricky topic here.  AIDS and murder.  There is a trial going on in Ontario, Canada, in which a 52 year-old man is charged with murder in the deaths of two women.  The allegations are the man knowingly had unprotected sex with these women – and knowingly transmitted the HIV virus to them.  Subsequently, according to the prosecution, these women died from AIDS related causes.  And now he is standing trial for murder.

Tricky topic, indeed. There are lots of legal arguments that can be made – and are made – for criminal prosecutions against people who knowingly transmit HIV to their sexual partners. Depending on the set of circumstances and the specifics of any given case, prosecutors in the United States have wide latitude to bring criminal charges in this area.

According to Ms. Bebe Anderson at the Lambda Legal Defense Fund, there are a myriad of criminal statutes that specifically speak to HIV/AIDS in terms of criminal acts against others, ranging from a Class C misdemeanor in Alabama to felony charges that carry the same penalties as second-degree murder in Pennsylvania.

All these states and all their laws, and all the cases that could be prosecuted under them, are fact-specific. And that’s where this starts getting really, really messy.

As Lambda pointed out to me, one of the biggest problems in this area of prosecution is the absolute paucity of medical evidence that is presented to courts in these cases to establish the actual transmission of the HIV virus that caused a person’s AIDS and then his or her AIDS-related death. Moreover, more severe prosecution (under more severe criminal statutes) relies on intent. Proving someone has the intent to first infect someone with HIV, and then cause his or her death as a result of the AIDS that would come from the HIV infection, is pretty much impossible to establish.

Murder 1 or 2 requires intent on the part of the accused. Thus, one would have to prove that the accused intended to kill his partners via AIDS. On the other hand, manslaughter charges can be brought under reckless endangerment theories, in which the accused should have or did know that the likely outcome of his act would result in another person's death. This approach could, potentially, stick. Should it?

Do we prosecute caregivers on charges of neglect, or on criminal endangerment, or for child abuse, when adults feed their children fats and sugars to the point that the kids develop adult onset (Type II) diabetes by the age of ten? No. Should we? Hell no. And if we don’t in this type of scenario – a scenario where an adult, with absolute control over a minor is responsible for causing life-threatening medical harm – how can we in a situation involving sex between consenting adults that ends with the transmission of HIV? Don’t both parties to a sexual liaison have mutual responsibility to protect themselves to whatever degree is reasonable, especially given the facts of STD transmission in our society? Simply accepting the word of your sexual partner that he/she is not HIV infected does not, to me, seem to constitute a reasonable level of self-responsibility. And the failure of an adult to take reasonable steps to defend his or herself does not, seem to me, to warrant state action in loco parentis.

I am not a lawyer, just a guy trying to figure this stuff out. There is something truly immoral about a person who would knowingly infect another with HIV against that person’s knowledge or wishes. And, if there is a hell, I am sure that there is a nice warm room waiting for them. But morality is not the basis for criminal prosecutions. That is a slippery slope, which, I assure you, we don’t want to go sliding down.

Comments

[Simon]

If the person knows he or she is HIV positive and doesn't inform his or her partner of his status and the other person contracts the illness I think the trick question is have both consenting adults used common sense and been responsible. Have people lost all sense of self responsibility here as well. No doubt punishment is needed but on a similar situation where 2 heterosextual adults have unprotected sex and end up having to get the female pregant then should the guy go to jail because no protection was used and the girl gets pissed because she got pregnant? It's pretty one sided punishment I think. I hope people just assume everyone is HIV positive and use protection and common sense. Men and woman lie all the time and so if someone decides to just trust someone with their life and gets a life threatening disease in the process well then that person had it coming. That's my personal opinion on this matter.

[david, RN]

Do you believe everything you hear ? Should you believe when someone says they are clean. No you should take your own protection. there is no criminal charges that should be placed for spreading the disease people need to be more responsible for themselves. there are many disease that spread to us could kill us. Im a nurse and come in contact with it many times and I feel completely safe from it because I use precautions. people much remember personal responsibility anybody who wants to criminalize the spread of hiv should then go back and prosecute the republicans and all the people who refused to solve the problem when it was first found and should put the funds it would take to to prosecute to do research and find a cure come on people its 2008 not 1920

[MarcusFarrell]

There are many arguments to post here, but the reality is that being an honest person is what this is about. Our society by and large, (yes, there are flaws), runs on honesty. Integrity matters and when someone is asked a straightforward question about HIV status, herpes or any other STD it is incumbent to tell the truth.

Respect for one's self is proven and showed in how one treats others.

[queerplanet]

SHANE SAYS...

"Anyone who knowingly passes on HIV/AIDS deserve to be prosecuted. I can't really speak to the specific severity of the charges, but they should be tough. Whether or not intent to murder can be proved, involuntary manslaughter still sticks. "

I want people to read this and remember it when they vote on November 4th.

This is the Sarah Palin school of justice and sexuality.

You don't look at causes. You just attack the problem with violence.

Bad thing happens. You either send it to jail or go to war with it.

Do not look at causes.

Do not look at whether jail or war solves the problem.

If all else fails, get out a gun and shoot it.

Causes just confuse the issues.

Education is for sissies and communists.

[assiandude]

I'm ambivalent about this discussion for several reasons. At first blush, I do believe that it is morally and probably should be legally wrong to knowingly hide with the result of HIV/death in the partner. However, as I ponder, one of the basic issues of sex is that it is a private act and that both parties knowingly enter. It is also one of the riskiest personal encounters that people or animals can have and placing criminal penalties for lying or hiding about something that results in a bad outcome, takes away from the basic nature of any sexual encounter. Rape and sex with minors is another issue, but two adults having chosen to have sex should be responsible for their own choices. They can ask questions and either believe or not believe their partner. Should a women who lies about birth control be held criminally liable for causing the father to be financially responsible for a child? Should all people who've had sex be responsible to get tested and if positive disclose the information to all partners?

Having it criminal to knowingly infect another with HIV is basically taking away the core of the private nature of sex and also gives an incentive for someone not to get tested. Sex has risks and any adult who has sex has taken on the responsibility and accountability for their choice in a partner and the degree of protection. Sex is by it nature something that is between the people having sex and only them. The only "victim" in a sexual ecounter between two consenting adults should be a child that results. Otherwise, the government should stay out of it.

[Bradley]

Queerplanet, why did you involve Politics into this discussion, I think that is so stupid that you would involve that shit on here, In fact when in this Article there are nothing about politics. Maybe you are the ignorant one in including ur remarks, but on the other hand, He did know that he had it, So yea i think he should be legally responable for his action. I had a good sex education when i was High School. God we scream out politics for everything. My word, this country is so corupted its not even funny. DAmn what is peoples damage.

With this guy, he knew that he had it and he knew that its speadable, so lock him up

[Doyle]

It is MURDER! Simple as that!
If you know you have hiv and you have sex with anyone without telling them your status, especially unprotected sex, and they contract hiv from having sex with you, and subsequently die from it, it is MURDER! You should be prosecuted to the fullest extent of the law. The argument that the person who he had sex with should have been "careful" or wear protection does NOT fly with me. If we drive to work today, wear "protective" seat belts and a DRUNK runs a red light and hits us, we still DIE! That DRUNK is still liable.
Should everyone wear protection during sex? ABSOLUTELY! It is proven however, over and over, that protection doesn't always work,it breaks.
Think about it, if you have HIV, you are a potential murderer just by having sex with someone else who is negative. Is YOUR responsibility to inform them of your status and do EVERYTHING in your power to protect them from infection if they are crazy enough to still have sex with you. It can happen, look at Magic Johnsons wife, i dont know their sex life, but im sure whatever it is, love is still possible with hiv.

[Doyle]

Queer Planet You are the most dispicable excuse for a homosexual!
IT is ignorant idiots Like YOU who damage the cause of the gay community! You are the typical narcicist who blames everything on Others instead of looking at the root of the problem, YOU!
Grow UP!
Your fear of politicians like Sarah Palin is typical of the dispicable narcicist who run the gay looney left! Why don't you get some therapy for your narcicism and learn to take personal responsibility for your OWN ACTIONS and then perhaps you will fine a new lease on life and use all that energy you have to lead others to do the same. THEN you will have found a cause worth fighting for. When people take personal responsibility for their OWN ACTIONS this world will then become a better place and the spread of this horrible disease will diminish. Narcicistic idiots like "queer nation" are the REASON it has spread and has Killed Millions!

[Sheldon]

Doyle, we don't charge the drunk driver who causes a deadly accident with MURDER, we charge him with VEHICULAR MANSLAUGHTER, because he did NOT INTEND to kill. He did, however, act with reckless disregard for human life.

[Jake]

Speak for yourself author. I say fry the son of a bitches who infect their partners "intentionally" or "recklessly" by not getting tested regualarly.

If the law required to get monthly or quarterly (every three months) H.I.V. tests, and your partner went to a judge and proved that they were infected by their parners,

and "ONLY If" they did not get tested within this time period, (as noted above), and "Did Not Have The Clinic Document" proving a recent test, "then in these cases only" ;

(1) if a person proved their partner infected them "reguardless if they told their partner they were not positive" Just provide the judge with your Clinic Documents and your free as u would have shown you truely thought you were negative you would be "Safe From Prosecution" in these cases,

But fail to have a recent Clinic Document proving a negative test,

and if you turn up Positive your going to be potentially held to a possible conviction if you recently had sex with your now infected partner.

In these cases I say forget murder, instead, JAIL them for up to (5) YEARS in prison for "Reckless Endangerment" if convicted.

This will get the straight and gay worlds attention.

This will profoundly lower abortions cases and H.I.V. cases as well, because of the fear of going to jail for infecting your partner.

Reguardles if it was for malice intent or the stupitidy of not knowing your S.T.D. status,

The condom will become very popular if these laws were enacted and enforced.

We in a moral society should hold people to account with a more intelligent standard of responsibly.

[whatever]

_INTENTIONALLY_ infecting someone with HIV with the intent of killing him? Yes, that is murder, regardless which definition of murder you are using. Just like if someone pokes a needle with Yellow Fever or Smallpox in your arm.
Of course unless there are very special circumstances it will be extremely difficult to prove the intent which -if the person is aware or his infection- leaves inflicting of bodily harm.

[thoughtful student]

honestly the way i see it. if you know you have a disease that is terminal and you have unprotected sex with someone and your partner is not aware you have the disease you are responsible for their pain. I'm sorry if you do not agree with me but if you know you are terminal and that sort of contact can kill the person and yet you do it anyway and they do not know , how are you not the one responsible for your acts. thats like a child molester taking advantage of a unkowing kid and then saying the child is to blame. you taking advantage of someone and essentially giving them a death sentance for your personal pleasure is not joke. were not talking about wether the person who had the sex is at fault to some extent or not, this is about the actions of the person who knows and intentionally spreads a disease with a non-existant survival rate. they should be held accountable for their actions, they do not have the right to take another persons life away just so they can have a few minutes of pleasure.

[queerplanet]

Anyone who knowingly condemns someone with a disease to prison for spreading that disease should vote for Sarah Palin.

Then go and get excorcised from evil spirits by christian priests to keep yourself safe from bad things.

What a bunch of nonsense. How does prison solve the problem of spreading HIV?

[Nicolas]

If the guy was forcing the victims to have unprotected sex then yes his guilty, but if the 2 victims didn't use protection then is not is not guilty.
When you play with condoms there is no risk to get hiv. I think, there are people what they don't know even are hiv and transmit to others. The problem is the person who's accepting to have sex with no condoms.Thx

[Derrick]

It is my personal belief that the person should be prosecuted, simply because he knew he had HIV and willingly transmitted it to another person. Yes I also believe that the other 2 women should have been smarter and wrapped it but still. You can not say that both parties were willing because they were not fully informed. I personally say before ANY sexual encounter "Do you have your papers"(alluding to "have you had an STD checkup and also have the results") on top of wrapping it. Without being fully informed about the fact that her male partner was carrying HIV you really can not say she consented.
It’s like a surgeon giving next of kin a decision between two surgeries and only being told about the complications that might arrive on one of the two decisions. If the person that the surgeon was operating as a direct result of the next of kin making the wrong call because she was ill informed you bet your butt we would all be wanting him prosecuted. The man knew he had HIV, he knew what would happen if he had unprotected sex with someone else. Argo he should be convicted of at least I repeat AT LEAST manslaughter.

[Mike]

The fact is that there is a huge lobby group of HIV positive people trying to protect themselves from responsibility for spreading the disease. They believe that lying about their status and endangering other people's lives is OK... as long as they get a chance to have sex without the bother of a condom taking away some of the pleasure of sex.

I don't know what these people are thinking. So many HIV negative people have fought to help the lives of Poz people, yet many Poz's feel no responsibility for preventing the spread of disease to the rest of the population.

The number of people who caught the disease from a cheating partner who pretended to be monogamous is staggering. The number of people who caught it from someone who lied about their status is also staggering.

And now we are supposed to feel sorry for the disease spreaders when they get prosecuted for their malicious actions!!! That's hilarious.

Instead of trying to protect the predators who are purposely or carelessly spreading this disease, Poz's should be thanking society that they live in a world that provides medicines and support services to you so that you can live productively with this terrible disease!!

This is the most serious public health issue of the past century, yet spreading it so some Poz guy can have another thrill is repugnant.

[Mike]

Just one more thing...

If someone who is positive wants to have unprotected sex with someone else..., why don't they do it with someone who is already HIV positive. Why put at risk someone who is already healthy just so they can have a few seconds or minutes of unprotected thrill.

The fact is that HIV positive people are warned not to have unprotected sex with someone else who is Poz because they run the risk of dual infection... contracting TWO strains of HIV, which can render their medications ineffective.

As a result, many Poz predators would prefer to risk a healthy person's health, instead of possibly putting their own health further at risk. How selfish and scary is that!!

[apolonass]

i have to admit,both sides have reasonable arguments. but why most of you(not all) are so binary? infector's fault or idiot-infected's fault? I have to combine what i read before(and nothing new) and say BOTH's FAULT. ok,lets go further. should they be punished? HELL YES!EQUALY. now tell me, what's eual to dying miserably??? (my apologies to the possitive man who stated that hiv is like diabetes and still not believe him,i trully wish i am wrong. about henry,what can i say,you should be fined for breathing our air,turn yourself in this instand.for justine,your friend is UNFORGIVABLE)

[apolonass]

and to be more clear, the infector will die anyway,but the state SHOULD make his life/death as miserable as possible (IF ofcourse proven guilty)

[apolonass]

(i am drunk!) @justine: your "friend" is a MONSTER who shaved the hair from his face, cut his claws and wears shoes on his hooves, and you want me to believe he is human now????? get serious (as a GREAT WISE MAN once told me,if you are an asshole for 60 years,then become a good man, and die at the ag of 65, YOU STILL OWN 55 YEARS OF BAD CARMA. reincarnation was the subject of our conversation)

[inez]

I know lots of folks who refuse to eat a plate of food at a restaurant because of a hair yet, they practice very unsafe sex and have less regard of other person's safety health.

Of course, the courts will have a heck of a time proving itent, murder, etc...
However we should take pause and take responsibility when it comes to our bodies and those we interact with. It also seems that the more drugs companies make to make folks with AIDS live longer and make life more bearable, others see this and take it as a cue to take greater risks.

As LGBT folks, we should try to live as long as we possibly can and live responsibly because we are an awesome group of people!

[lora]

i have a ? if a mother knew she had hiv and did not tell the doctors when she was pregnet and the baby became really sick and now as full blowin aids and now it is to late to save him sould she be charged because the are safe garuds in place so babys with mother with hiv can be safe and not get it

[David]

If you think it's the legal responsibility of the neg to protect him or herself, then would you have convicted the unabomber, since the victims voluntarily opened those packages?

And it's not the same as sending a child to school with a cold because a cold doesn't kill people.

I think that any person who becomes a ward of the state temporarily (immigrants, prisoners) should be tested and, if positive, tattooed somewhere near the sexual goods.