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Saturday, 14 August 2010

Texas: Another 'deadly weapon' HIV exposure conviction: 15 years for one-off sexual encounter

A 26 year-old man from the small Texan town of Copperas Cove has been sentenced to 15 years in prison with an additional $3000 fine after pleading guilty to charges of aggravated assault with a deadly weapon.

The aggravated assault? Having one-time consensual unprotected sex with a 16 year-old male after the two met on Grindr.  The deadly weapon?  HIV, of course.

The details of the man's arrest, including a link to a photocopy of the affadavit of charges, were first published last November on the website of a local TV news station

The victim learned through another "Grinder" user that [the man] claimed to be HIV-positive. Police say [he] admitted that he was HIV positive during an interview with investigators. According to the affidavit, [he] did not inform his victim that he was HIV-positive.
Yesterday the local TV news station reported on the 15 year sentence handed down by the 52nd District Court noting that the man had previously pleaded guilty as charged in June.

In March 2010, similar charges were laid against another HIV-positive man in another part of Texas for sex with a 15 year-old male under similar circumstances.  The rather balanced Houston Chronicle article reporting these charges also referred to this case and pitches prosecutor David Castillo against Catherine Hanssens, executive director of the New York-based Center for HIV Law and Policy.

Prosecutors in Gatesville are trying the same tactic after similar allegations against another man surfaced last year. Coryell County District Attorney David Castillo plans to prosecute [name of man] in May. [The man], 26, is accused of sexually assaulting a 16-year-old boy he met on the Internet last year. Castillo said he believes [the man] has HIV and plans to prosecute him, regardless of whether the boy contracted it. “You can fire a gun at someone and miss, and it's still aggravated assault with a deadly weapon,” Castillo said.

The analogy is a poor one, said Catherine Hanssens, executive director of the New York-based Center for HIV Law and Policy, because it overestimates how easily HIV is spread and stigmatizes those with the virus. “HIV should not be an aggravating factor unless there's some evidence that he intended to do some harm and did some harm,” Hanssens said. “Criminal law in every state is adequate to deal with it. But to treat it as evidence of guilt and a deadly weapon wasn't appropriate in 1985, and it isn't appropriate now.”

In more than 20 years of advocacy, Hanssens said she had seen dozens of charges involving defendants with HIV, some arising from charges involving biting and spitting. Hanssens said charges alleging a “deadly weapon” arise from an infected person's knowledge that they have the virus. She blasted prosecutors and public officials for not considering the deeper ramifications of calling HIV a deadly weapon.

“To refer to HIV as a deadly weapon in 2010 speaks of just unforgivable ignorance,” Hanssens said.

Contrast Ms Hanssen's point of view with a blog posting by Houston criminal defence lawyer John Floyd, who discusses both cases and opinions in the above article, in a post entitled, Is HIV a Deadly Weapon?
HIV infected individuals who knowing have unprotected sex with sex partners without informing them of their infection are potential “serial killers.” It is impossible for the infected individual to know who or how many of their sex partners will contract HIV and die as a result of the exposure. No one should be exposed to such potentially fatal risks simply because someone is not responsible enough to fully disclose that he/she has a potentially contagious disease.
With defence lawyers like him, who needs prosecutors?
Of note, the age of consent in Texas is 17, and yet charges of "statutory rape" were not laid, even though the same outcome could have been obtained (Sex with a minor is a second degree felony, punishable by two to twenty years in prison and a fine of up to $10,000.00) without these ridiculous and stigmatising 'deadly weapon' charges. 

Last November in Michigan – a state not known for its enlightened treatment of people with HIV given the (now dropped) terrorism charges against an HIV-positive man who allegedly bit a neighbour in self-defence – a 21-year-old man who pleaded guilty under the state's HIV disclosure law to having unprotected sex during a one-night stand with a 16 year-old girl without first disclosing that he was HIV-positive was  jailed for nine months. The age of consent in Michigan is 16, so this was not statutory rape.

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