By Carl W. Rush

Image original by Gran Fury & remixed by Visual AIDS.

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“Even I am surprised by the verdict.”

Andre Rajna, Crown Prosecutor, December 19, 2012

I recently attended the criminal HIV exposure trial of two young men in Kitchener, Ontario. Each was found guilty of two counts of Aggravated Sexual Assault for exposing (but not infecting) two other men 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 to fit the evidence presented in the trial or in some cases did not even seem to follow the law.[i] How does non-violent, consensual sex between adults become a crime? I had been wondering if I was missing something; I wondered what it was that I was blind to. Was I being unreasonable? Did I not properly understand the law or the legal procedures? Was I blind to my own ignorance or bias? When I found out that another HIV exposure trial was scheduled right in my own neighbourhood, I knew that I had to go. I had to see what was happening for myself.

The Trial

The trial lasted 12 ½ days, including two full days of jury selection and 11 hours of jury deliberations. The Judge began the trial by giving the Jury some general preliminary instructions.

The Crown Prosecutor then made an opening statement; Defense Counsel did not. The Crown, then presented its evidence, calling 5 witnesses: the two investigating police detectives; the two Complainants and a public health expert on HIV transmission and epidemiology. The Crown also presented multiple exhibits including transcripts of text messages among the Complainants and Defendants, the medical records of the Defendants and one of the Complainants, the expert’s report for this case and a necklace one of the Defendants mistakenly left behind at one of the Complainant’s apartment. All of this evidence was rigorously cross-examined by the Defense Counsellors.

The Jury asked multiple questions of the Judge during Crown’s presentations and the Defense’s cross-examination. Their first question, on the morning of second day of evidence, requested the definition of Aggravated Sexual Assault. The Judge postponed the answer until his final instructions to the Jury.

The Judge expressed “grave doubts” about the Complainants’ credibility and said they were “alive to the risks.” Justice Donald Gordon, Pre-charge Conference, December 13, 2012

Defense Counsel aggressively targeted the credibility of the Complainants. Both Complainants were asked to explain the multiple discrepancies between their police statements, their testimony at pre-trial hearings and their testimony at the trial itself. They gave distinctly different versions of the sex acts that were the subject of the charges. The first Complainant recounted three different accounts about which one of the Defendants he had had intercourse with, over the course of his statements to the police and his testimony at the preliminary hearing and this trial.  He testified that he tested regularly 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 other sexual partners he referred to in his text messages including the other Complainant whom he knew to have an active syphilis infection. After this contradiction 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 right with 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 his potential 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, usually it was done by the other Complainant. He perjured himself at the preliminary hearing by stating that he did not have a criminal record for drugs and weapons related charges. He was also exposed by several contradictions and evasions designed to cover up his illicit drug activities on the day of the alleged assaults. He deleted all the text messages stored on his cell phone for the same purpose before he made his complaint to the police. He also lied on the stand about knowing he had an active syphilis infection at the time of the alleged assaults even though his medical records, which were one of the exhibits, indicated otherwise. Both Complainants were caught colluding about their testimony at the trial, both prior to the trial and, on the evening between their appearances on the witness stand.

The Defense did not call any witnesses but presented one exhibit, several letters from one of the Defendant’s doctor to corroborate some of the testimony of the Complainants.

It became clear during the course of these proceedings that the Defense had previously won a motion at a pre-trial hearing to admit into evidence a limited amount of the Complainants’ sexual history that related directly to the charges. Usually the sexual history of the complainant is not admissible to prevent its use to discredit the complainant, however in this case an application under Section 236(2) of the Criminal Code of Canada was granted as this evidence had a direct bearing on the decisions to be made by the Jurors.

Following the presentation of evidence, the Defense Counsellors made their Summations and then the Crown Prosecutor made his Summation.

The Judge then gave a summation of the evidence and his instructions to the Jury, explaining principles of law, including the innocence of the Defendants until proven guilty, that the Jury may not infer guilt if the Defendants chose not to testify, that the Crown must prove its case beyond a reasonable doubt and he explained the legal elements of the Aggravated Sexual Assault law. The Jury was then sequestered to make their deliberations.

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