Gathering evidence of HIV nondisclosure

In a room full of sexual assault investigators from across the province, just one raises a hand when asked if anyone has done a blood contamination case. That’s one more than Hamilton assistant Crown attorney Karen Shea usually has when she lectures at the Ontario Police College in Aylmer.

Blood contamination cases - the majority of which are HIV nondisclosure cases - are so rare, so complicated and so unlike other criminal investigations, that most police officers in Ontario have never encountered one. If they have, they likely asked Shea for help.

Shea is the only prosecutor in the world to win a murder conviction on a case involving the transmission of HIV. Johnson Aziga was found guilty of two counts of first-degree murder for fatally infecting two women and 10 counts of aggravated sexual assault and attempted sexual assault for passing on the virus to five others and causing paralyzing psychological damage to four additional partners who “dodged the bullet” and were not infected.

The Hamilton police investigation into Aziga and a handful of other HIV cases also makes investigators from Hamilton some of the most experienced in these matters.

The whole issue of HIV nondisclosure is extremely timely, as the Supreme Court of Canada began hearing two cases Wednesday.

Between 1985 and the end of 2010, there were more than 70,000 positive HIV tests in Canada, with as many as 2,600 added each year. Forty per cent of those are in Ontario. There have been approximately 170 criminal cases in Canada involving HIV, with 146 involving exposure through sex. Of those, 32 cases involved victims who tested positive for HIV.

Shea spends a considerable amount of her lecture talking about the science of HIV transmission. Because she has a medical background, this is an intersection of science and law that combines her considerable expertise in both areas. But she knows for police officers, it’s a tough sell.

“It’s really important for them to know the science,” she says, “because science will have an impact on what the Crown is able to prove.”

Police need to think about that right from the beginning in order to obtain the evidence, such as the accused’s medical and public health records and their HIV test results from the Ontario Agency for Health Protection. This can help to determine the accused’s viral load and their HIV subtype, which is needed to prove how infectious they were at the time of sex and to link the HIV of the accused of the HIV of an infected victim.

Detective Sandra Walters of the Hamilton police sex assault unit has investigated two HIV cases and admits there was a sharp learning curve. “The first time I heard the term ‘viral load’ was when I started my first case,” she recalls.

Walters turned to Shea and fellow detective Troy Ashbaugh, the lead investigator on the Aziga case, for guidance. Now, officers from other jurisdictions call her for help when they have a similar situation.

“The number of elements you have to prove and the depth you have to go to prove them” is unmatched in other sex assault investigations, Walters says.

Understanding the law around HIV is also difficult, because it runs counter to other types of sex assault cases, says Shea. For instance, normally a person cannot consent to aggravated sexual assault. But in an HIV case they can, if he or she is fully aware their partner is HIV positive and they make the informed decision to give consent and take the risk.

Also, says Shea, it is easier to prove a case where a victim is exposed to HIV and not infected than one in which there is actual transmission. If a victim is infected, it then becomes necessary to prove he or she wasn’t infected by someone else or by some other means.

Even more so than in most sex assault cases, an HIV case “is such a sensitive issue,” says Walters. “It’s confidential and very difficult for people to talk about.”

Sometimes, potential victims learn of their possible exposure through police. “Emotionally, it has been very, very difficult for the investigators,” she says. Or police may have to make the difficult decision to issue a media release to warn the public of possible exposure.

All of this is complicated even further, Shea and Walters agree, by the fact that the science and the law surrounding HIV cases are shifting and evolving constantly.