CTV (Canada), December 14, 2005
An HIV-positive B.C. man was found guilty Tuesday night of committing sex crimes for having unprotected sex with women to whom he did not reveal his condition.
A jury in Westminster, B.C. convicted Adrien Nduwayo, 36, of five counts of aggravated sexual assault, one count of attempted aggravated sexual assault and one count of sexual assault.
“The message this sends I think is when you are HIV-positive you have a positive duty to disclose that fact to any perspective partners that you have,” Crown counsel Andrew MacDonald said, minutes after the verdict was released.
He said that all of the women who testified against their former lover showed “tremendous amounts of courage and fortitude.”
The charges relate to Nduwayo’s failure to disclose his virus and engage in unprotected sex with seven women between 2000 and 2003.
Three of those women now have HIV, the virus that causes AIDS.
During the trial, court heard that Nduwayo carried on affairs, and slept with more than one woman at the same time.
Nduwayo contends he always wore condoms to protect his sexual partners and that he didn’t have a legal obligation to disclose his condition to his partners.
But some of his former lovers said they had to insist that he wear them — and that even then he often did not.
Defence lawyer Paul McMurray said outside the court that Nduwayo’s defence was that all of his sexual partners in question were willing partners and that the fact he used a condom was sufficient in law to maintain their consent.
Nduwayo has said he didn’t tell some of his lovers that he was HIV-positive because they didn’t ask.
Some of them found out about Nduwayo’s condition when they saw news reports that the police were looking for him for allegedly spreading the virus, court heard.
“I think we’re dealing with an area where there was, and is, some uncertainty,” McMurray said outside court.
“Everybody I think accepts that you’re supposed to disclose and you’re supposed to wear condoms but this falls short of that and that’s the difficulty here.”
No date has been set for a sentencing hearing.
A 35-year-old HIV-positive soccer coach pleaded not guilty to six counts of aggravated assault yesterday as his lawyer tried to screen jurors for racial bias.
Adrien Nduwayo calmly took notes during the trial, which began yesterday and will continue for the next three weeks.
Mr. Nduwayo is expected to argue that his sexual encounters with several B.C. women in the past four years were consensual, and that he wore condoms. Police, who arrested Mr. Nduwayo after a search last year, say he failed to take adequate steps to protect his partners against the deadly virus that causes AIDS.
Three of the women are said to have contracted HIV. It’s anticipated that several complainants will testify, though the court heard that one may be unable to attend because of complications relating to a pregnancy.
Because similar cases have been in the public eye of late — including charges laid last month in Surrey, B.C., against CFL linebacker Trevis Smith — the court tried to vet jurors carefully for possible bias yesterday.
“Would your ability to judge the evidence without bias or prejudice be affected by the fact that Mr. Nduwayo is an African man, is HIV-positive and is accused of assaulting women who are predominantly Caucasian?” Mr. Justice John Truscott asked possible jurors yesterday.
Outside court, Mr. Nduwayo’s lawyer explained that he wanted the judge to ask that question because “the whole issue has come to the forefront recently.” Lawyer Paul McMurray said that aggravated-assault cases involving HIV infection are not new, and have been the subject of three Supreme Court cases.
In addition to the cases of Mr. Nduwayo and Mr. Smith, a Hamilton judge recently ruled Johnson Aziga, 49, will stand trial for murder for allegedly transmitting HIV.
At the heart of all the cases is what role the state has in regulating the behaviour that goes on in the bedrooms of the nation.
“The issue is whether Mr. Nduwayo is under a legal obligation to disclose his HIV status,” Mr. McMurray said.
Another point of contention will be whether Mr. Nduwayo used condoms to protect his partners. “That will be an issue, whether he did or didn’t,” Mr. McMurray said.
Mr. Nduwayo, who has been in jail since his arrest last year, also faces a sexual-assault charge unrelated to his HIV-positive status.