Saturday, December 05, 2015

Race, HIV transmission or exposure and Criminal Justice: would it be different if Charlie Sheen was Johnson Aziga or Michael "Tiger Mandingo" Johnson?

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Created December 04, 2015

Charlie Sheen is White, Anglo, Saxon, Protestant. He is part of the establishment, very wealthy and has not been criminally charged despite the allegations similar in nature to Aziga and Johnson. Aziga and Johnson are Black, poor, not part of the establishment and had the resources of the state deployed against them in an unprecedented way.

A question for the Jury in Aziga was "Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the individual charged is a black Canadian citizen who was born in Uganda, has HIV (Human Immunodeficiency Virus), and the alleged victims, including the two deceased women, are white?" R. v. Aziga, 2008 CanLII 29780 (ON SC). This was the first HIV Positive murder case in the world and I was concerned that the right questions was asked of jurors so that the jury was truly impartial.

On April 4th, 2009, Aziga, a Black Ugandan-Canadian male, was convicted, by a Hamilton, Ontario court composed of judge and jury, of two counts of first degree murder, 10 counts of aggravated sexual assault, and 1 count of attempted aggravated sexual assault. All charges arise from fact situations where the applicant, being HIV positive had unprotected sexual intercourse with women without informing them of his HIV status. He was subsequently declared a dangerous offender and is serving an indeterminate sentence in a Federal Prison. See, R. v. Aziga, 2010 ONSC 3683, [2010] OJ No 2763 (QL) and R. v. Aziga, 2011 ONSC 4592 (CanLII).

Michael Johnson, an African-American male, was convicted, by a St. Charles, Missouri court composed of judge and jury, of being HIV positive had unprotected sexual intercourse with men without informing them of his HIV status thereby recklessly exposing them to the HIV virus. He was sentenced to 30 years to life in prison. Johnson was a college athlete (wrestler), who was hooking up with men in his area mostly through social networks created for sexual encounters. He was represented by a public defender.

I am not a proponent of the criminalization of HIV. However, I do take the view that persons aware of their HIV Positive status who consciously fail to disclose that status and have unprotected sex must be held accountable equally. Black people in Canada and the United States of America form the bulk of the persons criminalised under the various laws in respect to HIV disclosure. The laws should not be unevenly applied based on one's race, wealth and/or status in society.

In Ontario, for example, there is a "guideline for Crown Attorneys relating to the prosecution of HIV exposure and transmission cases." However, this document is not publicly available so that the various considerations taken into account by Crown Attorneys are absent from public scrutiny or perview.

Charlie Sheen's case is now the litmus test by which American Justice will be view on the criminal prosecution or the lack thereof of HIV.

Selwyn A. Pieters was appointed Co-counsel on January 25, 2008 in R. v. Johnson Aziga, charged with 2 counts of first-degree murder and 13 counts of aggravated sexual assault. My work on the file resuled in three important and significant judicial decisions: See, R. v. Aziga [2008] O.J. No. 2431, 78 W.C.B. (2d) 87; R. v. Aziga; 2008 CarswellOnt 4300 and R. v. Aziga [2008] O.J. No. 3052, 78 W.C.B. (2d) 410. I got off the record on this file on August 06, 2008.

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