This is my rough draft for my law course on a very interesting case in Canadian law. I would really like to hear what you have to think:
Should he and other have been charged with murder? Is it the victims fault? Is society threatened by persons like him? What should we do about it?
Charles Ssenyonga, Spreading AIDS and its legal consequences.
Intro: The sensational case of Charles Ssenyonga is Canada’s most famous AIDS related case. The case was important to the development of Canadian justice because it dealt with a modern phenomenon like HIV/AIDS against the rights and freedoms of the individual. It also raises many ethical dilemmas for our society. Should HIV/AIDS patients be marked out? Should we ban immigration to those who have HIV/AIDS? The case of Ssenyonga is important because it outlined the limits of our legal system. The Ssenyonga case caused much emotional outbursts from the community, Mr. Ssenyonga did not legally have to tell the women that he was infected with the AIDS, the women [freely] consented to the sex, there was no actus reus for the accused to be charged on, and Mr.Ssenyonga did have the Mens Rea to actually commit a crime. Although a moral and ethical outrage, Mr.Ssenyonga did not break the laws of Canada.
Para 1: The case of Ssenyonga is really one of consent, and ignorance. Prior to the Sseyonga case was the R v Lee case in which a bisexual partner had consensual sex with a woman, Lee at the time was also having sex with a male who was HIV positive. The crown stated that complainant's consent was vitiated and nullified by fraud because the accused had failed to inform her that he was HIV-positive. The premise being that the trust between the two was not based on reality. The crown wanted to show that the accused should have told the woman he was HIV positive. The outcome according to the court set a vital precedent for the Ssenyonga case; “…The Court held that, although the accused might have suspected that he was HIV-positive, there was no evidence before the Court that he knew for a fact that he was HIV positive at the time of the alleged offence.” This does imply that the carrier has to tell the victim that he/she has the disease if they did know. For Ssenyonga he knew that he was HIV positive at the time of intercourse with women. In 1990 Ssenyonga was told not to have sex with others due to the fact he had HIV. There were complaints by several women that Mr.Ssenyonga had given them AIDS. Thus Toronto Public Health told Mr.Ssenyonga not to engage in sexual intercourse. But this has no enforceable legal jurisdiction on the patient. He continued to have AIDS with unsuspecting women saying, “…pursued by sex-crazed women whom he was obliged to accomodate to spare them embarrassment." At the trial Ssenyonga said that he was not aware that he had AIDS during the time of intercourse with the victims. “he couldn't understand that anything was wrong with him due to a mental disorder… The mental condition could have been caused in part by the disturbing news that he had contracted the deadly virus.” This mental disorder being post-traumatic stress disorder, in which one is so traumatized by their circumstances they are able to reject reality. But the crowns witness contradicted this statement made by Dr.Hill. “…a report from a Crown-ordered psychiatric examination concluded that Ssenyonga was not suffering from post-traumatic stress disorder. Ssenyonga did not exactly forget he was infected with HIV while having sex with the three women, Dr. Langevin testified during cross examination by Beasley, "but it's not available to his memory at that time. He's telling himself, 'I'm normal; I'm healthy; I have no symptoms; look at me." That was enough to show that Mr.Ssenyonga could not have told the victims of his disease. He was psychologically impaired to the point where he was unable to tell the victims that he was infected. The former precedent of R v. Lee in which one had to tell the other of his disease was thrown out.
Para 2: It becomes a very poignant ethical question, should those who infect others with AIDS keeping the consenting partner ignorant of this disease be charged with aggravated assault? Section 268 of the Code provides that a person commits an aggravated assault when he or she wounds, maims, disfigures or endangers the life of a complainant…"assault" is defined in s 265 of the Code: a person commits an assault when, without the consent of another person, he or she applies force intentionally to the other person, directly or indirectly. The consenting adults who had sex with Mr. Ssenyonga were many; “OPP Officer Terry Hall tallied 17 people
infected by Ssenyonga, including one male! One of the victims, Francine
Dalton, estimated that 100 people had been infected during Ssenyonga's 10 years in Canada”. Mr.Ssenyonga though could not be charged with aggravated assault because the infected did consent to his sexual advances. As shown according to the Criminal Code in order for one to be charged with aggravated assault one must have forced their will onto a non-consensual situation. This was not present at the case of Mr.Ssenyonga. The crown stated as they did in the R v. Lee case that consent was void due to the fact that the consenter did not realize that the accused had a disease. The crowns motion was itself nullified; “McDermid J ruled that the purpose of the offence of aggravated sexual assault was to control the non-consensual direct or indirect application of force by one person on another. In this case, all three complainants had consented to the application of force inherent in sexual intercourse.” Thus Ssenyonga could not have been charged with assaulting these three women. Since he was incapable of telling the women that he had AIDS, this line of logic held no water. Also Fraud charges which were brought were thrown out as well because Mr.Sseyonga because more debate was needed as to how to deal with this charge. The judge stated; “purpose of section 265 is to control the non-consensual direct or indirect application of force by one person on another, and not to control the transmission of HIV and the spread of AIDS.” This was because the judge believed this to be a public policy issue and one that should be dealt with the legislature. To the women a very dramatic statement was made on how they conducted themselves in light of Mr.Ssenyonga’s disease. "given the dangers of unprotected sex, ... a much longer period of trust was required. ... The applicants' behaviour contributed to the injuries sustained." This was quite a statement made about the women’s conduct. Although this was not a verdict with any jurisdiction it would have placed much of the responsibility on the victims’ themselves.
Para 3: By far the most important and potentially most damaging claim would have been the Murder charge. Although this was not present at the trial, it could have been. Should those who transmit AIDS to an unwitting victim be convicted of murder? In the case of Mr.Ssenyonga it is a complex idea. Mr.Sseyonga did not have the mens rea to actually commit murder. He also stated that he did not see AIDS as a death sentence to the women;” but said he had not thought about the inevitable deaths of the women he allegedly infected.” He did not think about the consequences of his actions. Mr.Ssenyonga himself did not seem to even realize that he had AIDS during intercourse with these women. The courts were going to convict Mr.Ssenyonga with criminal negligence. But he died prior to his verdict being read out. According to the criminal code being negligent is when an individual “shows wanton or reckless disregard for the lives of safety of other persons.” Mr.Sssenyonga did show this in his actions, but is this enough? Mr.Ssenyonga has given officially three women in Canada HIV/AIDS, which is a deadly disease. One can reasonably assume that Mr.Ssenyonga could be convicted with murder under strict liability in which one does not have to prove mens rea to commit a crime. Mr.Ssenyonga did threaten the community; he broke the communities trust after the 1990 warning. Under strict liability it must shown that it is a “public welfare” crime. He had sex with at least 17 persons in Canada, knowing he was infected with a disease. Although reasonable doubt does exist as to whether or not he knew, there is no definite conclusion on his post traumatic stress disorder defence. The Supreme court of Canada has stated that sec.265 of the Code does affect those who spread AIDS:”…an individual who knows he is HIV-positive and has unprotected sexual intercourse without disclosing this condition to his partner may be found guilty of contravening the provisions of s. 265 of the Criminal Code.” This shows that this is beyond mere negligence, this is a serious crime. Unlike normal sexual assault cases, this case deals a disease that is a proven killer. He may have not committed the classic murder, he still sealed the fate of at least 3 women. He has threatened at least 17 different individuals while in Canada, which represents a threat to our society. Mr.Ssenyonga should have been charged with at least 3rd degree murder charges.
Conclusion: The case of R v.Ssenyonga would have set a precedent in Canadian law in which one could be charged merely with Criminal negligence.
Should he and other have been charged with murder? Is it the victims fault? Is society threatened by persons like him? What should we do about it?