Of course, this also allows dangerous men to be protected. Edith Allen, a public-health specialist at Harborview's STD clinic, describes a typical situation in Seattle, where most of the HIV-positive women are not African American but from Africa: "A woman is infected by her partner; he may have known, but she did not. When you ask her, 'How do you feel? What do you think should be done about it?' she'll say: 'I'm angry and everything, but I love him. I don't want to do anything right now.' Or she'll say, 'We're both positive now; nobody else is going to want me.'"
A Case of Buyer Beware
Ron Soliman / The Olympian
Anthony Whitfield in court.
Related Content
More About
Dr. Wood points to the fact that HIV "assault" requires proof of intent to infect someone. "That's an area that the AIDS directors around the state have felt for some time needs to be fixed," he says, adding: "There is a lot of resistance on the part of the AIDS activist community."
Some legislators tried to pass an HIV exposure law that did not require "intent" back in the mid-'90s, but without success. AIDS activist groups have generally opposed any attempts to criminalize consensual behavior. Attorney Givner of Lamda Legal argues "it's extraordinarily rare that a person intentionally attempts to infect someone with HIV, and intentional harmful behavior is what criminal law is supposed to deter." As for other cases, where it's simply unclear who knew what about whose status, Givner says, "Putting people in jail is just not an appropriate way to remedy the ills of sexual miscommunication." California has "intent" as part of its statute as well, while other states, with less powerful activist groups, do not—another reason, perhaps, why prosecutions often occur outside the major HIV centers.
Wood describes one individual with whom he's recently been in contact: "The guy is depressed, he has HIV, and is having a lot of [unsafe] sex. We tried to find out from his [medical] provider—did he intend to infect people? Did he ever say, 'I want to take as many people with me as I can?' And it's clear that he didn't, he's just saying, 'I want to have as much sex as I can, and buyer beware.' I would call that reckless endangerment, but it's not something, according to my attorney, that I can do much about."
On the other hand, court rulings may have made it easier to establish intent than has been widely recognized. In 1999, a state court heard the appeal of Randall Louis Ferguson, a southwest Washington man who was believed by authorities to have infected dozens of people through many years of needle-sharing and unprotected sex. Because of a three-year statute of limitations and other issues, prosecutors in 1996 were only able to charge Ferguson with one count of second-degree assault. It was in response to this case that Olympia legislators elevated deliberate exposure of HIV to first-degree assault in 1997, despite the opposition of groups that advocate on behalf of people with AIDS and Seattle legislators.
In appealing Ferguson's conviction and sentence, his attorney argued that testimony from additional women who'd had sex with the defendant—besides the one he was charged with exposing—should not have been admitted at trial. But the appeals court disagreed, saying their testimony was relevant to the case. In their decision, the appeals court judges wrote:
"If a man who knows he has HIV has sex once or twice without a condom, he may be acting forgetfully or in the heat of passion (i.e., without an intent to inflict harm). If a man who knows he has HIV repeatedly has sex with many women, without advising them of his HIV status and without using a condom, it may be inferred from the facts alone… that he is acting with intent to inflict harm."
Such a view of "intent" broadens the playing field considerably. Anyone, gay or straight, who is acting recklessly, could be culpable, with no expressions of malice—no statements like Whitfield's "I'm going to give AIDS to everyone I can"— required. Whether we would want to see criminal law deployed in such an aggressive manner in the war against AIDS is an open question. But Dr. Wood says there are many in the medical community who feel we "ought to have more ability to corral the [dangerous] behaviors." The current law, imperfect as it is, seems to be serving some public good, but the arbitrariness and harshness with which it is enforced may be doing an equal amount of harm to public health. More moderate punishment, imparted more consistently, could provide a more useful deterrent than the unpredictable, life-shattering bolt from the blue. But that kind of reliability may be more than any law regarding sexual behavior can deliver.
info@seattleweekly.com
