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HIV: Criminal Intent
Anthony Whitfield was recently convicted in Olympia in one of the nation's worst HIV assault cases. But his prosecution raises serious questions about who is being charged with spreading the AIDS virus and reveals the problems of trying to police private behavior for the public good.
Mark D. Fefer
Published on December 01, 2004
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Ron Soliman / The Olympian
Anthony Whitfield in court.
Almost three weeks from now in Olympia, on Tuesday, Dec. 21, Anthony Whitfield, 32, will be sentenced on 17 counts of first-degree assault, the most for anyone in recent state history. His crime: having unprotected sex with 17 different women while knowing he was HIV-positive. Whitfield, an unemployed methamphetamine addict, spent the last several years bouncing around among girlfriends, marrying one, having children with two others, maintaining multiple "long-term" relationships, and having a slew of shorter ones. Though he was informed he was HIV-positive in 1992, he never told his partners, in some instances outright lied about his condition, and often refused to wear condoms. Five of the women have since tested positive for HIV, and one has AIDS. After a two-week trial before a Thurston County judge last month, Whitfield was found guilty on all assault counts.
The case received some crime-of-the-day coverage on local TV news, but was mostly ignored in Seattle and elsewhere. That's surprising, since, based on Seattle Weekly research, no one in America has been charged, let alone convicted, of exposing so many people to the virus. And yet the Whitfield story may be worthy of attention less for the ways it's extreme than for the ways that it's typical. The case raises a number of questions about how HIV "crimes" are being prosecuted generally in the U.S. and how criminal enforcement can or should be used to help contain the AIDS epidemic. Consider the following:
- Whitfield is only the third person prosecuted for this crime in Washington since 1997, when legislators and Gov. Gary Locke made deliberate exposure of HIV a Class A felony, like murder and rape. As with Whitfield, the two previous defendants lived outside the urban centers (in Wenatchee and Skagit County, respectively) and their victims were women. Yet the vast majority of our state's HIV transmissions occur in and around Seattle among men who have sex with other men. No one on Capitol Hill has been going to jail, even though a new infection is happening in our city about every day, according to Seattle– King County public health department estimates. The pattern is seen nationally as well: HIV prosecutions are almost exclusively directed at men victimizing women and occur mainly outside the major cities where HIV is most concentrated. "The demographics of the prosecutions do not match the demographics of the epidemic," observes Jonathan Givner, an attorney with the gay advocacy group Lamda Legal in New York.
- Because of a focus on heterosexual encounters, HIV law has become yet another criminal arena where minorities are targeted out of proportion to their numbers. Heterosexual transmission is much more common among African Americans than whites, and while there likely are many reasons for this, one is clearly the sky-high rates at which black men are being sent to prison. Prisons are hothouses for HIV and a common place for black men to be infected with the virus. According to trial testimony, Whitfield was infected during a prison rape while serving time in the early '90s. Once he got out, his meth-fueled "player" lifestyle was not just brazen but criminally dangerous; HIV has become one more stop on the cycle of incarceration. According to Seattle Weekly research, about half the defendants in recent HIV prosecutions across the country were black men. (Locally, it's two out of the three.)
- Given the scale of the epidemic and the fact that a majority of states, during the last decade, passed laws specifically criminalizing HIV exposure, there have been remarkably few prosecutions. Leaving aside cases of rape, prostitution, etc. (where the behavior was already criminal, regardless of the presence of HIV), Seattle Weekly found about a dozen prosecutions for HIV exposure per year in the U.S. since 2001, a tiny fraction compared to other sex crimes. The laws are "popular as a concept," says Leslie Wolf, a professor at the University of California–San Francisco who studies legal issues surrounding HIV/AIDS. "But after that, there's not much that people are pursuing. There is no state or federal policy on this, so it's kind of haphazard." Meanwhile, Dr. Bob Wood, the HIV/AIDS czar for Public Health–Seattle & King County, says that, based on the studies he's seen, roughly 20 percent of people who know they are HIV-infected are "hiding their status, not using condoms" at least some of the time. Some surveys have put that number as high as 75 percent.
- For those few perpetrators who are tried and convicted, punishment can be severe and generally has no connection to whether the victim actually contracts the virus. One 23-year-old HIV-positive man in Iowa City recently received a 25-year sentence for a few days of unprotected sex with a woman who has since tested negative. Washington law, too, prohibits "exposure," without regard to transmission. That makes it different from other crimes, where the outcome affects the penalty: A drunk driver who hits a pedestrian is subject to harsher punishment than someone who's just as dangerously intoxicated but makes it home without incident.
In short, there are many questions to be asked about the fairness of HIV prosecutions—about how the law is applied and against whom—as well as how well these prosecutions are serving the goals of justice and public health for which they're supposedly intended.
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