An HIV-positive Yukon man has pleaded guilty to aggravated sexual assault after having sex with a woman without telling her about his status.
Napoleon Ngeruka pleaded guilty in Yukon territorial court yesterday.
The sentencing hearing ended early because one of the lawyers was sick. The two sides will present their closing arguments to Judge Michael Cozens at a later date.
The central issue of yesterday’s hearing was whether or not Ngeruka’s victim contracted the virus from having sex with him.
The woman, who cannot be identified, testified she found out she was HIV positive in 2010.
If the court believes she was given the virus by Ngeruka that will be an aggravating factor when he is sentenced and likely lead to him spending more time behind bars.
The woman, 59, first met 56-year-old Ngeruka, in 2005. They had a sexual relationship that lasted two or three months and had sex maybe five times, she said.
She testified that they didn’t use a condom and that using a condom was never brought up.
Ngeruka never told her he was HIV-positive, she said.
Had she known about his HIV status she never would have had unprotected sex with him, she told the court.
“I would like to ask him why?” she said.
The pair met up again in 2009 and had sex about four times, she said.
Again, Ngeruka never mentioned his HIV status and never mentioned using a condom, she said.
After she was diagnosed, she gave officials the names of all her past sexual partners, she said.
She hasn’t heard of any of them testing positive for the virus, she said. A number of medical records were filed with the court showing negative HIV tests.
Dr. Mark Wainberg testified that the viral DNA in both Ngeruka’s and the woman’s blood was “very strongly related.”
Wainberg, the director of the Jewish General Hospital’s AIDS research centre, said it’s impossible to say with 100 per cent certainty that one person caught the virus from another.
The HIV virus mutates over time, he said. It’s also possible that both people caught the same virus from a third party.
HIV, the human immunodeficiency virus, is a virus that attacks a person’s immune system.
When the immune system is weakened a person can become susceptible to unusual infections. Developing one of those opportunistic infections is what’s known as AIDS, the Acquired Immune Deficiency Syndrome.
Medical advancements and improved medications mean that people with HIV can live a normal lifespan, testified Dr. Barbara Romanowski, an infectious disease specialist from Edmonton who sees patients in the Yukon.
That is a dramatic improvement over the 1980s when a diagnosis with HIV meant certain death and the only thing doctors could offer patients was palliative care, she said.
Ngeruka has been HIV positive since 1993, the court heard. Between 2005 and 2009 the amount of the virus in his system would not have been considered high enough to start medication, she said. But there is a risk of the virus being transmitted at any level.
HIV often begins with flu-like symptoms and it is possible not to know about it for years. There is no way to say how long a person has been HIV positive when a doctor sees them, she said.
The issue of whether failing to disclose HIV constitutes a crime has gone all the way to the Supreme Court of Canada.
In October 2012 the country’s top court ruled that people living with HIV have a legal duty to disclose their status to partners if there is a “realistic possibility” of HIV transmission. That includes having sex without a condom.
The Supreme Court of Canada decision angered many advocates who fought the case in court.
They claimed that forcing someone to disclose their HIV status is adding to the stigma that surrounds HIV.
They worried people will now avoid being tested since learning that they have HIV triggers a requirement to tell potential sex partners.
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