US: Dying daughter released from Florida jail following spitting conviction - UPDATE

Update: January 5 2011

The Bilerico Project reports today that

The Florida Parole Board met in an emergency meeting this morning to hear Betsie's case. The board approved a conditional medical release in a 2 to 1 vote; Betsie is being released to a Miami hospice to live out her final weeks of life surrounded by her family.

Original post: December 24 2010
As we focus on friends and family over the Holiday period, spare a thought for the many people with HIV in prison convicted of 'crimes' that harmed no-one except themselves.

In particular think of Betsie Gallardo, 27 – convicted in 2008 of battery on an officer and resisting arrest and sentenced to five years in prison because she is HIV-positive and spit on a police officer during a traffic accident investigation – who is dying of cancer. (Her case went unreported at the time, suggesting that such heinous miscarriages of justice are even more prevalent than we currently think.)

Her mother, Jessica Bussert, writes on the Bilerico blog

Betsie has been sentenced to die in prison. Why? Because she was born with AIDS and spit on a cop. It was definitely a stupid action, but was it one that warranted that she should die locked up, alone, and away from her family?

The case is being championed by Bilerico's Bil Browning and Michigan Messenger's Todd Heywood.

Bil includes many details of Betsie's heart-breaking case, including the full letter from her mother, and information on how to help.  His call to action is one that I hope my blog readers will follow:

Please take a moment to share this post on Facebook, tweet it, e-mail it or just spread it around via word of mouth. And when you've done that, do the most important part - contact the Executive Clemency Commission with the information below.

NOTE: When calling the four members of the Executive Clemency Commission, please reference the following:
Inmate Name: Betsie Gallardo at Broward Correctional Institution
Inmate DC#: Y42277

Please tell them: "It is already a crime that Betsy has spent time in jail for HIV-stigma and discrimination. I urge Florida's Executive Clemency Commission to grant Betsy Gallardo a medical clemency to allow her to go home to her family and die with dignity and respect.

US-based readers: please also sign this petition at change.org

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!

US: Florida man shoots, kills woman; blames her for being HIV-positive

A man who shot and killed a 23 year-old woman in Florida yesterday told police he did so because he believed she gave him HIV.

Incredibly, the website of local TV news station, CBS4.com includes a link to the police report detailing 34 year-old Anton Josey's arrest.

When Josey got out of the car, the probable cause affidavit states an officer asked him "What happened to her, why is she bleeding?" and Josey told him he shot her. In the affidavit given by the officer, the officer states Josey told him he shot [the woman] because the bitch gave me HIV."

"Obviously we don't know if that's true or not but he did admit to shooting her but why he did it, at this point we don't know," said Hollywood Lt. Manny Marino.

Josey has been charged with murder, and the story is still in 'breaking' mode. However, it hasn't taken long for comments to appear on the Miami Herald website suggesting that the woman was asking for it. yola-pink86 writes:

I wouldn't have resorted to murder either, it's just that in this day and age, if one know that they have an incurable virus like this, and one decides to have unprotected sex, knowing they he/she is carrying this virus, then one is asking for something bad to happen to them.

US: Miami man gets 15 years in prison for biting cop

A 35 year-old man with mental health issues, and characterised as a "drifter", has been sentenced to 15 years in prison "for threatening to kill with his illness then biting a Miami cop."

If this case doesn't exemplify HIV-related ignorance and stigma amongst law enforcement and the judiciary, I don't know what does.

According to the report from the Miami Herald, Johnson Jamerson

a former furniture delivery man who suffers from schizophrenia, was arrested in January 2008 for trespassing after he was found sleeping under the Interstate 395 bridge at North Miami Avenue. On a police bus later, Jamerson slipped out of his handcuffs. [Officer Matthew] Hall grappled with him. Wile struggling on the ground, Jamerson yelled out that he had HIV, the virus that causes AIDS, threatened to kill Hall and then sank his teeth into the officer's right shin...He bit through Hall's pants, drew blood and caused a permanent bruise.

Originally charged with attempted murder, a jury found him guilty of the lesser charge of aggravated battery on a law enforcement officer in June.

Circuit Judge Daryl E. Trawick was told by Miami-Dade prosecutor Ankur Sevak that although Officer Hall was not infected,

doctors did not clear him for eight anxious months. "He could not have any contact with his wife or children for fear he could severely affect them."

Obviously, the cop experienced a tremendous (and unnecessary - as you will see below) amout of mental and emotional suffering, reflected in the sentence, but how much of this suffering is Mr Jamerson's fault?

As I have written in a previous blog post about the police overreacting to the risk of HIV transmission from a bite, the risk of transmission is so low that PEP is not really warranted - and it certainly has never been proven to reduce the risk of transmission in such cases. The fact that the cop was worried enough to take PEP is not Mr Jamerson's fault.

In addition it should not have taken eight months from the incident for the cop to have been considered to be definitely HIV-negative - a viral load test (PCR testing) could have figured that out within a few weeks. Again, that is not Mr Jamerson's fault.

And as for the cop not having "any contact" with his wife or children - surely he was counselled that he could not transmit HIV casually. But then, if he believes he can get HIV from a bite, I guess he probably thinks he could pass it on via sharing cutlery or a toilet seat, just like 5% and 4% respectively of the UK public surveyed in 2004.

Once again, that is not Mr Jamerson's fault.

Then again, it seems Miami police doctors appear to give PEP for three-times longer than any study has ever found it to be necessary.

"For three months afterward, I had to take a cocktail of medication three times a day, causing diarrhea, vomiting, nausea -- everything you can think of,'' Hall, a Coconut Grove patrolman, said after the sentencing.

What is strange is that, if he is telling the truth about his experience of PEP, he appeared to be following guidelines to take drugs that are way out-of-date: no HIV regimen needs to be taken three times day.

However, it seems that the US Centers for Disease Control's PEP guidelines were last updated in 2005 and the currently recommended PEP regimen for basic 2-drug PEP is Combivir (AZT and 3TC in a single pill, taken twice a day) for 28 days.

Amazingly, the guidelines still include an option to take the drugs separately, and for AZT to be given three times a day. This is ridiculous and totally unnecessary. So, perhaps I can't blame it all on the ignorance of the police and judiciary: the CDC need to update their PEP guidelines to prevent unncessary suffering. And by unnecessary suffering, I'm talking about Mr Jamerson as well as Officer Hall.

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: Florida woman accused of HIV exposure

A woman from Florida has been arrested (and named and shamed) for not disclosing that she was HIV-positive before having sex with three men. She is charged under Florida's HIV disclosure law for every time she had sex with the men - seven times.

According to the Orlando Sentinel, she was first arrested on February 5th following a complaint from a man

who alleged he had consensual sex with [the woman] but did not know she was HIV positive.After a second alleged victim told officials said he "had consensual sex with [the woman] but did not know about the disease,'' she was arrested, a report said.

She was charged with "four counts of unlawful acts, one charge for every sexual encounter."

Following media coverage of her first arrest, she was arrested again last week after another man came forward.

[He] said he was in a three-month relationship with [the woman] while living at the apartment complex [she] managed, a news release [from the Osceola County Sheriff's Office] today said. "At no time during the relationship did [the woman] disclose to the victim she was HIV positive. [She] was booked into the Osceola County Jail and has since been released on bond,'' the statement said.

Enough of these non-crimes, already!

US: Florida woman guilty of mother-to-child HIV transmission

In what appears to be the first successful case of a criminal prosecution for mother-to-child transmission of HIV in the US (a Canadian woman was prosecuted under similar circumtances in 2006), a Florida woman has been sentenced to two years' probation after she pleaded guilty to felony child neglect.

She had faced up to 15 years in prison, but "prosecutors agreed to the deal because sending her to prison would significantly hinder her ability to care for him financially in the future."

I've included two articles from the Herald Tribune here: the first details her sentencing and the second, from January, goes into more detail of how and why she was arrested in the first place.

Mother who gave HIV to newborn gets probation
By Frank Gluck
Herald Tribune
Thursday, October 2, 2008

MANATEE COUNTY -- As part of a plea deal approved this afternoon, an HIV-positive mother will serve two years of probation for not taking medical steps to decrease her son's risk of getting the virus that causes AIDS.

Cecelia Sliker, 37, pleaded guilty to felony child neglect and had faced up to 15 years in prison. Instead, she will serve probation only. She must also find a job and is required to take health and parenting classes.

Investigators said Sliker did not get the boy, who was born in 2004, proper medical care because she did not want her son's father to know her HIV status.

Prosecutors agreed to the deal because sending her to prison would significantly hinder her ability to care for him financially in the future.

HIV can be transmitted from mother to child during pregnancy, delivery or after birth. Proper medication can prevent infection.

The boy eventually developed AIDS, authorities said earlier this year. His health now appears to be stable, witnesses told Judge Circuit Judge Debra Johnes Riva.

Officials: woman with HIV didn't seek care for baby
By MICHAEL A. SCARCELLA
Herald Tribune
Friday, January 11, 2008

BRADENTON -- Cecelia Ann Sliker knew she was HIV-positive before her son was born in 2001, and authorities say she followed the steps to block the transmission of the deadly virus.

Three years later, Sliker had another boy. But this time she ignored medical attention, fearing she would draw ire from the father, Manatee County sheriff's detectives say.

Authorities say Sliker did not get the boy care -- exposing him to risk -- because she was keeping her HIV status secret from her younger son's father.

Sliker's 3-year-old now has AIDS.

Sliker, 37, was arrested this month in Sarasota on a felony-level child neglect charge, a rare prosecution considering that the number of pediatric HIV and AIDS cases has fallen considerably across the country since the beginning of the epidemic.

"As far as I'm concerned this is total neglect and irresponsibility," said Richard Trifari, community health director at the Michael C. Bach Treatment Center in Bradenton. "This is mind-boggling. There is no excuse for this."

Authorities and AIDS experts said Thursday that medical attention before birth and after would have considerably reduced the chance of transmission and possibly eliminated it entirely.

The support network for HIV-infected pregnant women is widespread, and the medicine is free, Trifari said.

Sheriff's officials declined Thursday to address specific details of the investigation because the case is open. Also, federal laws protect patient privacy and make medical records confidential.

Whether Sliker's doctors were aware she was HIV-infected in 2004 was not immediately known Thursday.

Children Medical Services, a division of the state health department, documents HIV-infected pregnant mothers and provides care for children with special health needs.

But physicians cannot force a pregnant woman to take an HIV test, according to several experts in AIDS prevention.

Sliker, a New Jersey native who has lived in Sarasota and in Bradenton in recent years, was booked Wednesday at the Manatee County Jail with bail set at $25,000. She could not be reached for comment.

The Manatee County Sheriff's Office child protective service unit began a child neglect case in April, according to charging documents released Thursday.

But it was not immediately clear how protective services got involved -- whether, for instance, a relative or friend anonymously phoned in a complaint.

A Manatee County sheriff's deputy who was called out to Sliker's house in Bradenton said the younger boy appeared in good health. His room was clean. There was food in the refrigerator. He said the boy had a cough and that his mother gave him cough medicine.

The boy's uncle told the deputy he believed his nephew had been tested for HIV and that he did not have the virus. The uncle said he had never seen Sliker give the boy any medicine other than over-the-counter medicine for colds.

Sheriff's reports did not say when Sliker found out she was HIV-positive. But a detective said Sliker knew she before the birth of her first son in 2001.

Authorities said Sliker followed up with proper care after that pregnancy -- medication and doctor's appointments -- and the boy did not develop the virus.

HIV can be passed on from mother to child during pregnancy, delivery or afterbirth -- during breast-feeding, for instance.

Early intervention is critical in reducing the risk of transmitting the virus. Without the medication, a newborn has a 30 percent chance of contracting HIV.

The number of AIDS cases attributed to mother-to-child transmission has decreased dramatically in recent years, from 118 reported cases in 2001 to 67 in 2005, according to the federal Centers for Disease Control and Prevention in Atlanta.

In Manatee County, only a couple of cases have been reported in recent years, said Trifari of the Michael Bach Center, an HIV/AIDS patient care center in Bradenton.

Most HIV-infected women know they are carrying the virus that causes AIDS before giving birth, according to the CDC.

"Most of them get great prenatal care," said Susan Terry, director of the Community AIDS Network in Sarasota said.

She called the transmission of HIV "extremely preventable."

In the United States, about 100 to 200 infants are infected with HIV annually, according to the CDC. Women who were not tested early enough during pregnancy or who did not participate in prevention services make up the bulk of the cases.

"Why wouldn't someone want to make sure they were doing everything possible?" said Maj. Connie Shingledecker of the Manatee County Sheriff's Office.

Shingledecker, a longtime child welfare advocate, said mothers should be told early on that criminal charges are possible if appropriate care is not provided.