Appeal court overturns attempted murder convictions for HIV-positive man

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TORONTO — Ontario’s highest court has overturned three attempted murder convictions for an HIV-positive man accused of trying to infect his sexual partners, citing errors in the trial judge’s instructions to the jury.

In a recent decision, the Court of Appeal for Ontario said the judge overseeing Steven Boone’s case did not properly instruct the jury on the mental state required for a conviction on attempted murder.

It said the judge should have explained Boone could only be found guilty on those counts if jurors believed beyond a reasonable doubt that he intended to kill his sexual partners through his actions or thought their death from AIDS was a “virtually certain consequence” of HIV infection.

It said prosecutors may decide whether to move ahead with a new trial on those charges, as well as one count of administering a noxious thing — a charge that had been stayed by the trial judge.

However, the court upheld a conviction for aggravated sexual assault that Boone also challenged, as well as stays on two other counts of administering a noxious thing.

Prosecutors alleged Boone set out to infect his partners with HIV by lying about or failing to disclose his status.

Court heard Boone was 28 when he learned he had HIV in October 2009 and continued to have an active and largely unprotected sex life. He was also involved in the online “bug-chasing” culture, which refers to people who are turned on by the idea of infecting others or being infected with HIV, court heard.

Boone bragged in texts about infecting young men with HIV and described lying to partners about his status and sabotaging condoms, court heard.

His lawyers argued that the conversations were fantasy and role-playing between people sexually aroused by those ideas. The Crown, meanwhile, said the messages should be taken at face value and show Boone intended to infect others and eventually cause their death to satisfy his sexual desires.

The convictions relate to four complainants, whose identities are all protected by publication bans.

One of the complainants, identified only as D.S., was 17 when he met Boone online and the pair had unprotected sex nine times in early 2010, court heard. Boone assured D.S. that he had no sexually transmitted infections but later admitted, after being confronted, that he had HIV, court heard.

A few months later, D.S. tested positive for HIV, and while he had sex with other men in that time, an expert testified it was more likely that Boone had infected him.

Another complainant, M.C., also met Boone online when he was 17 and had unprotected sex with him during a one-night stand, court heard. Boone repeatedly told M.C. he had no sexually transmitted infections but again later admitted he lied. M.C. tested negative for HIV.

A third complainant, M.B., met Boone after seeing his profile on a website called “Manhunt,” which listed him as having HIV, court heard. M.B. also had HIV but lied about it because he believed Boone was aroused by the idea of infecting others, court heard. They had unprotected sex twice.

The fourth complainant, B.C., had sex with Boone once in 2009 using a condom, court heard. He said he saw Boone — who assured him he was HIV-negative — put on the condom and remove it but wasn’t sure if Boone ejaculated. B.C. later saw news articles that said Boone had HIV and got tested himself, but the results came back negative, court heard.

D.S., M.C., and B.C. all said they would not have consented to sex had they known Boone had HIV, which led to the aggravated sexual assault convictions. Boone only appealed one of those counts — the one involving B.C. — as well as the three attempted murder convictions involving D.S., M.C., and M.B., and those for administering a noxious thing.

The Appeal Court said it was incumbent on the trial judge to tell jurors exactly what the Crown had to prove beyond a reasonable doubt in order to establish intent for attempted murder.

“There was strong evidence that he wanted to infect his partners with HIV. There was also evidence that the appellant knew that HIV could lead to AIDS and to death at some point in the future if left untreated,” the appeal panel wrote.

“However, the evidence capable of supporting the inference that the appellant believed that death at some point was a virtual certainty was not strong. There was also a body of evidence suggesting that the appellant understood that even if his partners were infected with HIV, death from AIDS was far from a certainty.”

Boone also argued that the trial judge should have told jurors that without evidence of ejaculation or condom-tampering, the Crown could not establish a realistic possibility that B.C. would be infected with HIV. That would then require an acquittal on the aggravated sexual assault charge.

The appeal court, however, found it was open to the jury to infer Boone had sabotaged the condom based on his text messages suggesting he deceived his partners that way.

The court said that in light of its findings, lawyers for both sides should make submissions on sentence for the remaining convictions, factoring in whether the Crown intends to proceed with a new trial on the ones overturned.

Paola Loriggio, The Canadian Press


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