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A Spectacle of Stigma

A Spectacle of Stigma

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Published by HIV Justice Network
A First-hand Account of a Canadian Criminal HIV Exposure Trial by Carl W. Rush
A First-hand Account of a Canadian Criminal HIV Exposure Trial by Carl W. Rush

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Published by: HIV Justice Network on Jan 25, 2013
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11/26/2013

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A Spectacle of Stigma
 A First-hand Account of a CanadianCriminal HIV Exposure Trial
Carl W. Rush2012
 
1All Rights Reserved © 2012 Carl W. Rush
A Spectacle of Stigma
A First-hand Account of a Canadian Criminal HIV Exposure Trial
1
 
Carl W. Rush
 
I recently attended the criminal HIV exposure trial oftwo young men in Kitchener, Ontario. Each wasfound guilty of two counts of Aggravated SexualAssault for exposing (but not infecting) two othermen to HIV. They are now liable for a Life Sentence.Prior to the trial, I had been following HIV exposure
trials in Canada and reading the courts’ decisions. To
me, many of the guilty verdicts just did not seem tofit the evidence presented in the trial or in some casesdid not even seem to follow the law.
2
How doesnon-violent, consensual sex between adultsbecome a crime? I had been wondering if I wasmissing something; I wondered what it was that Iwas blind to. Was I being unreasonable? Did I notproperly understand the law or the legalprocedures? Was I blind to my own ignorance orbias? When I found out that another HIV exposuretrial was scheduled right in my ownneighbourhood, I knew that I had to go. I had tosee what was happening for myself.
The Trial
 
The trial lasted 12 ½ days, including two full days of jury selection and 11 hours of jurydeliberations. The Judge began the trial by giving the Jury some general preliminaryinstructions.
“Even I am surprised by theverdict.”
 Andre RajnaCrown ProsecutorDecember 19, 2012
 
2All Rights Reserved © 2012 Carl W. Rush
The Crown Prosecutor then made an opening statement; Defense Counsel did not. TheCrown, then presented its evidence, calling 5 witnesses: the two investigating policedetectives; the two Complainants and a public health expert on HIV transmission andepidemiology. The Crown also presented multiple exhibits including transcripts of textmessages among the Complainants and Defendants, the medical records of theDefendants and one of the Complainants, the expe
rt’s report for this case and a necklace
one of the Defendants mistakenly left behind at one of the C
omplainant’s apartment.
All of this evidence was rigorously cross-examined by the Defense Counsellors.The Jury asked multiple questions of the Judge durin
g Crown’s presentations and theDefense’s cross
-examination. Their first question, on the morning of second day ofevidence, requested the definition of Aggravated Sexual Assault. The Judge postponedthe answer until his final instructions to the Jury.Defense Counsel aggressively targeted the credibility of the Complainants. BothComplainants were asked to explain the multiple discrepancies between their policestatements, their testimony at pre-trial hearings and their testimony at the trial itself.They gave distinctly different versions of the sexacts that were the subject of the charges. The firstComplainant recounted three different accountsabout which one of the Defendants he had hadintercourse with, over the course of his statementsto the police and his testimony at the preliminaryhearing and this trial. He testified that he testedregularly for sexually transmitted infections(
STI’s
), always used a condom for intercourse and
always enquired about his partners’ HIV status,
except, of course,
 
in this case and the 5 othersexual partners he referred to in his text messagesincluding the other Complainant whom he knewto have an active syphilis infection. After thiscontradiction was exposed he stated that he relied on the other Complainant to arrange
and screen the participants for all of their group sex encounters. “
If they were all rightwith him, it was OK with me
.”
The second Complainant testified that he had not always
used condoms or enquired about his partners’ HIV status because he looked over hispotential sexual partners and if “they looked upstanding and had
their own car, they
were good to go.”
He said this was the first time he arranged a group sexual encounter,
The Judge expressed
“grave doubts” about the
C
omplainants’
credibility
and said they were “aliveto the risks.”
 Justice Donald GordonPre-charge ConferenceDecember 13, 2012

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