US: Man awaiting sentencing for HIV exposure in Tennessee

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McElderry found guilty of HIV exposure
by Brandon Puttbrese, bputtbrese@dnj.com (615) 278-5153
Article published Sep 14, 2007

A Murfreesboro man infected with HIV is awaiting sentencing after a jury convicted him late Wednesday for knowingly exposing a 15-year-old boy to the sexually transmitted disease.

Michael "Red" McElderry, 37, of East Northfield Boulevard, was also found guilty of aggravated statutory rape and could face up to 10 years in prison for the two guilty verdicts.

The jury, however, was hung on the weightier charge of rape by diminished capacity, a charge for victims who were not aware of the incident when it was happening. A mistrial resulted on that allegation.

"They didn't reach a unanimous decision on the rape charge because they were unsure or couldn't agree on whether the child was asleep or pretending to be," Assistant District Attorney Laural Nutt said.

A sentencing hearing will be set today in Circuit Court. Lawyers are also expected to consider a plea agreement on the 28 remaining indictments against McElderry, which could result in more prison time, the prosecuting attorney said.

The victim has also has a sentence he as to live with the next decade.

The boy, who is now 16, will undergo medical testing every six months for the next 10 years to determine whether he was infected with HIV.

At this time, he tests negative. HIV attacks the immune system and can lead to acquired immunodeficiency syndrome, better known as AIDS.

"This has been a very difficult and emotional time for the family," Nutt said. "They're exhausted."

McElderry met the 15-year-old victim in February 2006; he was a friend of the boy's mother. On July 3, 2006, the mother reported seeing the defendant having sex with her son who said he was asleep.

The mother called the sheriff's department, which investigated. The boy told detectives McElderry had unprotected sex with him on three other occasions since they had met.

"It's a betrayal of someone you trusted," said Nutt.

Unfortunately the vast majority of suspects in sexual assault cases are people the victims trusted, which can have long-term ramifications, experts say.

Shelly Wright, a sexual assault councelor in Murfreesboro, says it's more difficult for a young, undeveloped mind to understand the wrongdoing when the perpatrator is someone close to the family — that's even a bigger issue with young males.

"Young men just aren't ready for sexual relationship, an adolescent isn't as emotionally advanced as an adult is," said Wright. "They are still growing, fearful of being blamed, and men in particular feel a great deal of anxiety because they're ashamed, so they are much less likely to report when something happens."

Studies show that as many as one of seven males have been sexually assaulted by the time they turn 18, but most are "invisible victims," said Wright.

The best way to help children you suspect of abuse is by being someone they can confide in when they have questions, she said.

"Kids are really resilient and if they have an adult in there life they can trust and go to, that will go a long way to help them," Wright said. "Remain optimistic and keep that expecation."

As a part of the conviction, the defendant, who will remain incarcerated, must submit to a psychosexual evaluation, which will assess his state of mind and propensity to offend again, Nutt said.

No matter the outcome of the plea agreement and sentencing, McElderry will also have to register as a sex offender and will not be allowed contact with children other than his own.

Nutt and defense attorney John Price are expected to go back to work on a plea agreement on the remaining 28 charges, which include nine counts of rape, seven counts of criminal exposure to HIV virus, eight counts of aggravated statutory rape, solicitation of a minor, two counts of contributing to the delinquency of a minor and one attempted rape.

Under Tennessee law, minors, older than 13, but younger than 18, are considered victims of rape when the sex partner is at least four years older. When the partner is more than 10 years older, the charge is aggravated statutory rape.

Last December, the defense and prosecution had settled on an agreement on all the charges that would have released the defendant from jail and placed him on probation for eight-and-a-half years. But after questioning the boy's mother, Judge Don Ash rejected the deal.