US: South Carolina man gets six years for HIV exposure; status revealed during investigation for sex with a minor (updated)

Update: November 13th
The Aiken Standard reports that Joel Lynn Bedenbaugh was found guilty by a jury of exposing his ex-wife to HIV (although she did not become infected). The ex-teacher was sentenced by Circuit Court Judge Paul Burch, to "10 years, suspended on six years in prison and four years probation. Burch also sentenced Bedenbaugh to register as a sex offender, saying that he had to put safeguards in place because of the risk."

He remains under investigation for the separate "alleged sexual assault in 2008 in which he is accused of sexually abusing a girl, who at the time was younger than 11 years old."

Original post: June 6th
A South Carolina man being investigated for sexually assaulting an underage girl has now been charged with HIV exposure following the release of his medical records. The charges relate to both the girl and the man's ex wife.

The Augusta Chronicle reports that the 47 year-old man was charged last year with "criminal sexual conduct involving an 11-year-old girl, allegations that spanned from 2003 to 2005" and that the man's HIV status "came to light during the investigation."

Officers contacted the girl and an ex-wife of [the accused] to see whether they were aware he was infected. Lt. Turno said that when officers learned the two had not been informed, the new charge was pursued. [The man] turned himself in to the Aiken County Detention Center on Thursday and was bailed out the same day.

[...]

According to state law, anyone who knowingly exposes someone to HIV without first notifying the person of their condition can be charged with a felony punishable by up to a $5,000 fine or a maximum 10 years in prison.

US: 'It's Criminal', says POZ magazine; my HIV exposure round-up proves it is!

The October issue of POZ magazine is just out, and their cover story is about the criminalisation of HIV non-disclosure.

It's a timely reminder that the US prosecutes more HIV-positive individuals than any other country in the world. They go after us not only for allegedly not disclosing our HIV status before sex but also for just being HIV-positive and having sex or doing other things that are so low on the scale of HIV transmission risks that criminal law involvement becomes a stigmatising over-reaction.

In fact, over the summer months I've been so overwhelmed with news reports of prosecutions from the States, that I've had something of a backlog. So, here's a summary of what's been happening in August and September.

• August 14th: In Ocala, Florida, a 39 year-old woman was arrested for not disclosing her HIV status. The complainant was a 58 year-old man who had sex with her once, according to Ocala.com.
• August 21st: In Palm Beach, Florida a 32 year-old woman was arrested for "committing prostitution while HIV-positive, a third-degree felony which can result in up to five years in prison", according to The Palm Beach Post.
• August 27th: In Oklahoma City, a 40 year-old man was arrested following a complaint from another man for not disclosing his HIV status before oral sex. He was charged with "knowingly engaging in conduct reasonably likely to transfer HIV", according to newsOK.com.
• September 3rd: In Memphis, Tennessee, a burglary suspect was charged with criminal HIV exposure after he "he spit blood in the officer’s face and said that he was HIV-positive" during his arrest, according to myeyewitnessnews.com.
• September 11th: In Florence, South Carolina, a 35 year-old was arrested for HIV exposure after a complainant went to police (sex of both individuals unknown). "A person who violates this law is guilty of a felony, and upon conviction, can be fined up to $5,000 or serve up to 10 years in jail," according to WMBFnews.com.
• September 11th: In Dayton, Ohio a 25 year-old "male prostitute is facing felony soliciting and prostitution charges after he was picked up by an undercover cop working as part of a prostitution sting," reports the Dayton Daily News. His name, face and HIV status was also published.
  
• September 17th: In Fort Smith, Arkansas, a 33 year-old man "charged with knowingly exposing a person to HIV is also the lone suspect in a 2002 homicide in North Carolina", reports the Times Record. The 2002 murder allegedly took place after the female victim discovered the man's HIV status and threatened charges.
• September 21st: In Mattoon, Illinois a 42 year-old man faces HIV exposure charges after a 19 year-old woman complained to police that "he engaged in sex with her, knowing he was HIV positive", reports the Journal-Gazette Times-Courier.
  

Admittedly, the Arkansas case does warrant some criminal justice system investigation (if only to finally prove or disprove these 2002 allegations). It is also the only one where the complainant is acually HIV-positive. I have a feeling we'll be hearing a lot more about this case if and when it goes to trial!

Back to the POZ piece. Page 1 features an overview of US laws; why POZ believes they are wrong and out-of-date; and what HIV-positive individuals can do to protect themselves from prosecution.

If you can get a person to indicate that you have made it perfectly clear that you have HIV, and do so in front of a witness, such proof of disclosure may hold up in court. But unfortunately, many states do not define what constitutes “informed consent.”

[...]

Of course, it is also a good idea to use a condom. While not a legal defense in some states, condoms reduce the risk of spreading HIV. Historically, fewer people have been prosecuted for nondisclosure prior to sex when a condom was used.

Most important, the HIV community must lobby local, state and federal government officials and lawmakers to rewrite (or better yet, abolish) the laws that criminalize HIV transmission. Contact your mayor, your congress people, your state senators and their staff. Educate them about HIV risks and transmission, and hold their feet to the fire to ensure that all people living with HIV are not unfairly punished.

Page 2 features "comments posted on POZ.com by readers in response to various news stories and opinion pieces on the subject of criminalizing people living with HIV."

Page 3 has an excellent interview by Regan Hoffman with Catherine Hanssens, executive director of The Center for HIV Law and Policy. Highlights include:

"It’s hard to think of any disease or context in which someone would be put away for 20 years for what is basically an act of consensual sex where no one has been harmed. But the reporting in the mainstream press [about these cases] is informed by huge misunderstandings about how HIV is transmitted and a lot of ignorance about whom HIV affects and what drives the epidemic."

"The things that you would want to do to protect yourself and your partner are not necessarily the things that are going to be rewarded in the courtroom. There is a disincentive to disclose because proof is a difficult thing."

"Disclosure is not the equivalent of latex... The thing that stops transmission is latex, not words."

"The notion that we need a whole other set of standards and separate laws [to prosecute the nondisclosure of HIV] reveals that it’s not the intent to harm that results in a lot of prosecutions, but rather the ignorance about how transmissible HIV is and a revulsion for people who are affected by HIV."

Couldn't have said it better myself!

Ireland, UK, US: Spitting and biting cases highlight police ignorance

Whether its Fort Mill, South Carolina; Jacksonville, Florida; Rutland, Vermont; or Wimbledon in the UK, the police and media have been over-estimating the risk of HIV transmission from biting or spitting over the past two weeks with devastating consequences for all concerned.

South Carolina: Where biting is attempted murder
In Fort Mill, a man who bit his neighbour in a fight had his charges upgraded from simple assault to assault and battery with attempt to kill once police learned of the man's HIV status, according to a report in The Herald.

Assault and battery with intent to kill is a felony that carries a prison sentence of up to 20 years upon conviction, Fort Mill Police Capt. Bryan Zachary said. “Upon review of the facts of the case,” Zachary said, the solicitor's office “confirmed because of the malicious intent involved that the charge of assault and battery with intent to kill was warranted.

And yet, according to local TV station WSOC the bite did not break the skin.

London: Policeman's unnecessary agony
There may be no attempted murder charges for biting under English law, but in Wimbledon, according to This is Local London, "a policeman bitten by an HIV-positive drug addict [during his arrest] faces an anxious wait to see whether he has contracted the virus."

And during his wait he will, according to the report, "need at least seven months of anti-viral medication." Yet Post Exposure Prophylaxis for HIV exposure lasts just 28 days and is not actually warranted for a bite.

Vermont: Where post-spit anxiety lasts a year
A policeman in Rutland faces totally unnecessary anxiety after being spit on by an HIV-positive man who had been trying to commit suicide.

The Times Argus reports:

A man diagnosed with the virus that causes AIDS is charged with a felony for spitting into the face of a Rutland police officer who must now undergo a year's worth of testing to discover whether he was infected with HIV. [...]

It was while doctors in the emergency room were treating [the man] that he allegedly cocked his head back and spit into the face, eyes and mouth of city police Sgt. David Schauwecker, who was trying to control [his] head, according to the affidavit. [The man], who was arrested more than a week later after his release from the hospital, has no prior criminal record.

But the charge he faces now is tantamount to a life-threatening assault, according to Rutland County Deputy State's Attorney Kathryn Smith. "The nature of this offense is extremely concerning," Smith said. "He knows he has a deadly disease and yet he exposed another human being to that disease. … This case before us is an actual act of violence."

"Everything in my life is basically put on hold for a year," said Schauwecker, who will be tested every three months to look for signs of HIV. "I went there that night trying to save someone and now I'm looking at a life sentence."

Today, the Rutland Herald ran a letter from AIDS NGO, Vermont Cares, entitled 'Clearing up HIV myths'. They wrote:

Enforcing the myth that HIV is spread through saliva... protects the health of no one. In fact, unfounded fears about HIV transmission and misunderstanding of risk can endanger people with HIV.

To be clear, the U.S. Centers for Disease Control and Prevention offers no demonstrated cases of saliva ever transmitting HIV. Transmittable HIV is present in four bodily fluids only: blood, semen, vaginal fluids, and breast milk.

Having someone spit in your eye or mouth is definitely frightening and may transmit other pathogens from influenza to tuberculosis. However, HIV is a highly unlikely risk in this instance.

Enforcing fear and misinformation about HIV, and promoting the belief that HIV testing is a variable enough science to postpone relationships and life, would be a terrible consequence of this incident. HIV testing, by CDC recommendations, is nearly 100 percent accurate at six or even three months.

Florida: Where attempted spitting is now a felony
In late July, Jacksonville police charged a 29 year-old HIV-positive man with aggravated assault with intent to commit a felony after he attempted to spit on a police officer following his arrest for shoplifting.

The arresting officer said that on the drive to jail, [the man] started coughing and trying to spit on the officer from the back seat of the patrol car in an "effort to transmit his HIV disease." The officer had to put a "spit mask" on [the man]'s face before taking him to jail.

The short piece on firstcoastnews.com included the man's name and photo. There are now seven pages of readers comments that range from the homo- and trans-phobic to pure HIV hatred. One reader even found and published the man's previous (minor) criminal record. I genuinely fear for the man's safety in- or out of jail.

Ireland: Judge concerned about police's lack of education of HIV transmission risks of biting and spitting
The Irish Times reports that a High Court Judge, Ms Justice Mary Irvine, recently brought in a medical expert to testify over the risk faced by police of occupational exposure to HIV and other blood-borne diseases "as a result of the high number of Garda [Irish police] compensation claims involving fear of transmission of such diseases coming before the court."

The judge awarded a policeman €8000 compensation after hearing testimony that "he had been “petrified” and suffered nightmares and sleeplessness after having been bitten during the arrest of a known drug user".

Colm Bergin, a consultant in infectious diseases, told the court that in 10 years’ practice he had never come across a case of transmission of HIV or Hepatitis C through saliva.

The court also heard that:

• the risk of contracting HIV or Hepatitis C from saliva can be as low as one in 100,000; and
• that transmission of such diseases through contact with blood was also negligible.

[The judge] had expressed concern as to how well [police] were educated about risks to members contracting saliva and blood transmitted diseases through bites, spittle or needle stick injuries. “Such attacks are happening on a daily basis and there are huge numbers of compensation cases coming before the court,” the judge said. She has asked for reports on the risks involved and what is being done to reassure [police] injured in assaults as to the low level of risk.

US; South Carolina man charged with HIV exposure

A South Carolina man has been charged with exposing his girlfriend to HIV without disclosing his status. The woman is now HIV-positive, but the story – surprisingly well-written and balanced for a local newspaper – does not suggest that he will be charged with criminal HIV transmission.

UPDATE February 3rd 2009. The man received a four year sentence after pleading guilty, according to brief AP report on wnct.com.

A South Carolina man has been sentenced to more than four years in prison for infecting his girlfriend with HIV.... Martinez will serve his sentence in Florida where he is already in prison for a similar crime.

The story, from the South Carolina newspaper, The State, is below:

Man charged with exposing girlfriend to HIV

Posted on Sat, Mar. 22, 2008
By RACHEL E. LEONARD

SPARTANBURG — A Spartanburg man has been arrested on a charge he knowingly exposed a girlfriend to HIV, causing her to become infected, authorities say.

Gregory Sean Martinez, 39, was arrested Thursday afternoon at his home. Under state law, it’s illegal for someone who knows he or she is HIV positive to engage in sexual intercourse without informing the other person, said Maj. Dan Johnson with the Spartanburg County Sheriff’s Office.

“When you’re infected with HIV and pass it on to a partner in some form or fashion knowingly, you can see what a tremendous health issue that is,” he said.

According to the Sheriff’s Office, the woman discovered she was infected during a prenatal checkup after she became pregnant with twins in 2007. She told investigators she and Martinez first engaged in consensual sex in 2006 in Florida. They moved to Spartanburg, where they lived together until January, when she moved back to Florida.

According to the Sheriff’s Office, Martinez recently admitted to the woman he has been infected with HIV since 2002, but never informed her of his status or suggested practicing safer sex before that.

The crime is a felony that can carry up to 10 years in prison or a $5,000 fine upon conviction. In 2005, a Spartanburg County man pleaded guilty to knowingly exposing two people he met over the Internet to HIV and was sentenced to 18 months in prison and three years of probation. But such cases are rare, Johnson said.

“I’m not sure that I’ve ever seen one of those,” he said.

Spartanburg police Capt. Randy Hardy echoed his thoughts. “I can’t remember seeing that or having made a charge of that,” he said.

Tracey Jackson, executive director of the Spartanburg-based HIV prevention and advocacy group Piedmont Care, said sexual partners might not disclose their status — and most don’t report infection to law enforcement — because of the stigma that continues to shroud the virus, which causes AIDS.

“What you’re seeing here is fear of HIV and fear of stigma,” she said.

But no law, Jackson said, reduces the duty of all individuals to protect themselves, and all people who engage in sexual activity should discuss HIV with their partners. At the same time, people who are HIV positive shouldn’t be further stigmatized because of the actions of any one individual, she said.

There are also difficulties in enforcing the law, including proving someone exposed a partner during the suspected time period and knew he or she was HIV positive at the time.