Tag Archives: Canadian HIV/AIDS Legal Network

My HIV status: I was a weapon

By Kenneth Pinkela

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“He’s HIV positive so it must be him…”

This is a direct quote from CPT Jordan Stapley, US Army JAG attorney and the prosecutor who brought charges against me on my 45th birthday – June 29, 2012.

Up to that point, I was a very happy and successful 27+ year career US Army officer, HIV+, healthy, long term non-progressor, actively serving my country.

On a day I should have been celebrating my 45th birthday, COL Michael Hargis, the military judge, presiding over my general courts martial said the words “guilty of all charges and specifications…” Life as I knew it was over…

It didn’t matter that I had volunteered for a polygraph, that there was no investigation or that my family was in the house.

It didn’t matter that I had volunteered for phylogenetic testing and actually introduced the government to Dr Mike Metzker of Baylor University…the scientist who successfully applied phylogenetics to the HIV virus and was able to demonstrate one strain of the virus was not like the other; thus proving a person is or is not the source of infection.

It doesn’t even matter that the primary witness has signed a sworn statement recanting and describing lies and coercion on the part of the Army prosecution.

I was charged under the Uniform Code of Military Justice (UCMJ), which defines Aggravated Assault as…

any service member offering or attempting to do bodily harm to another individual, through unlawful violence or force, whether or not the offer or attempt is consummated…

My charge sheet reads “Aggravated Assault for “exposing” a First Lieutenant to the Human Immunodeficiency Virus and inflicting grievous bodily harm or death…” and the aggravation is my HIV status…ME…I was a weapon.

When you hear those words “aggravated assault” you, like any average person, you envision some type of violent physical attack …but none of that could be farther from the truth.

My case, like many other HIV Criminalization cases both in the US and in Canada rarely, if ever, have any “element” of a crime.

What’s extraordinary to my case different than the state specific HIV criminal laws, no US President or session of the US Congress has never included HIV in any manner into the Uniform Code of Military Justice.  HIV criminalization continues, without authorization, unchecked via case law, ignorance and stigma.  All at the expense of the lives of military members who just happen to be living with HIV.

I am now 49 years old, unemployed, on public assistance, a convicted felon, my career pension and benefits are gone, including medical care for both combat related injuries and my HIV, but I’m not dead yet.

The network of HIV Criminalization advocates in the US and Canada is amazing! I’m not going to stop until what happened to me can NEVER happen again!

HIV is NOT a CRIME!

HIV is NOT a Violent ACT!

HIV is a virus…a virus that over 1.3 million in the United States and Canada are living with…STOP criminalizing us!

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Criminalization of HIV Non-Disclosure in Canada

By: The Canadian HIV/AIDS Legal Network 

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In Canada, people living with HIV can be charged and prosecuted for not disclosing their HIV-positive status to a sexual partner in some circumstances. What does disclosure to a sexual partner look like? The act of disclosing one’s HIV status means telling someone you are having sex with that you are HIV-positive. This can include anyone with whom you have a sexual relationship, including your spouse, a regular sexual partner, or someone you might have sex with only once.

In 2012, the Supreme Court of Canada ruled that a person living with HIV has a legal duty to disclose their HIV-positive status before having sex that poses a “realistic possibility of transmission.” The Court determined that using a condom and having a low or undetectable viral load (the amount of HIV in a person’s blood) negated “a realistic possibility of transmission of HIV.” More than 180 people have been charged to date with HIV non-disclosure.

In Canada, people who face criminal charges related to HIV non-disclosure are typically charged with aggravated sexual assault, one of the most serious offences in the Criminal Code. People living with HIV have been charged even if they had no intention to transmit HIV, engaged in behaviours that posed little or even no risk of transmission, and did not in fact transmit HIV to their sexual partners.

The current, overly-broad use of the criminal law increases stigma and discrimination against people living with HIV, spreads misinformation about HIV, undermines public health initiatives and ultimately leads to human rights violations. When people living with HIV still experience overt discrimination and physical violence, disclosure is not easy, especially for those on whom criminalization has a disproportionate impact: women, Indigenous people, migrants and members of the African, Caribbean and Black communities. Furthermore, by equating HIV non-disclosure with aggravated sexual assault, Canadian law harms both people living with HIV and survivors of sexual violence.

But we’ve seen some positive developments in recent years.

In 2014, more than 75 prominent Canadian medical experts signed an important consensus statement, which has been an important tool for advocates and has since been used by defense lawyers representing people living with HIV, judges and scientific experts testifying in court with some positive impacts already emerging.

On World AIDS Day (December 1, 2016), federal Minister of Justice Jody Wilson-Raybould made a historic statement acknowledging the problem of the over-criminalization of HIV non-disclosure and the need for the criminal justice system to adapt to better reflect the current scientific evidence on HIV transmission. Federal Minister of Health Dr. Jane Philpott, echoing this sentiment, has noted that HIV criminalization in Canada is both a problem and a priority for the government to address.

More recently, the Ontario Working Group on Criminal Law and HIV Exposure has called for an immediate moratorium on all prosecutions in cases of HIV non-disclosure while exploring law reform options and working with the province to establish much-needed prosecutorial guidelines to limit the current misuse and overextension of the criminal law. Since Canada’s Minister of Justice, and Attorney General of Canada, has denounced the overly broad use of the criminal law in Canada, why does Ontario continue to unjustly prosecute people living with HIV? Tell Ontario’s Attorney General, the Honourable Yasir Naqvi, to stop unjust HIV-related prosecutions: click here to send your message.

Here’s hoping that both federal and provincial attorneys general listen and take action.

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