US: Michigan bite man charged under anti-terrorism laws gets 11 months probation in plea deal (update-4)

Update: Dec 8th 2010
Macomb County Circuit Court Judge Peter Maceroni today sentenced the 46 year-old Michigan man once charged under terrorism laws for allegedly biting his neighbour to eleven months on probation after pleading guilty to a single assault charge. 

"This was nothing more than gay-bashing," attorney James L. Galen Jr. told Fox 2.  "The only reason my client took a plea deal was because of his health, and one of the witnesses didn't show up for the defense."

Mlive.com's headline, 'All bark, small bite: Probation for Clinton Twp man with HIV once charged with bioterrorism' can only hint at the ridiculousness of the charges and the pain and financial cost suffered by this man.  In the end, probation is still too much of a penalty, and it is far too late to repair the damaged reputations of both the man accused and HIV itself.

Update: Nov 5th 2010
Todd A Heywood of the Michigan Messenger, who has been following the case of the 46-year-old Michigan man who was charged with terrorism after biting his neighbour in October 2009, reports that the man has reached a plea deal on the two felony charges that remained following the rejection of the bioterrorism charges in June 2010.

Daniel Allen was originally charged with one count of bioterrorism, one count of assault with intent to maim and one count of assault with intent to do great bodily harm less than murder. Macomb County Circuit Court Judge Peter Maceroni rejected the bioterrorism charges in June, leaving Allen facing the two, ten-year felonies.

The charges stem from an October 2009 altercation between Allen and his neighbor Winfred Fernandis, Jr. Fernandis alleges that Allen attacked him without provocation, while Allen says the incident was part of a long running series of anti-gay harassment by Fernandis and his family. Fernandis says Allen bit his lip during the fight.

Under the plea deal, Allen has agreed to plead no contest to assault with intent to maim. Under the deal, if Allen successfully concludes a probation period, the charge will be changed to a misdemeanor of aggravated assault and the second charge, assault with intent to maim would be dismissed.

But Fernadis, the victim, told the Daily that he might back out of the agreement. He specifically told the newspaper he would be OK with the deal if Allen moved from the home he owns in Clinton Township.

Allen faces a sentencing hearing in front of Maceroni Dec. 8.

Update: Nov 20th 2009
Journalist Todd A Heywood reports in another Michigan Messenger article that

HIV activists from the group Michigan Positive Action Coalition have issued a press statement encouraging people with infectious diseases, including H1N1, HIV or the common cold, to call the Macomb County prosecutor and “voluntarily turn themselves in” to be charged with terrorism. In the statement issued by Mark Peterson, a director for the group, activists called the charges leveled against 44-year-old Clinton Township resident Daniel Allen “ridiculous.”

Update: Nov 18th
Journalist Todd A Heywood has published a second article in the Michigan Messenger that includes an interview with the man's lawyer, James Galen Jr.

The story has also been picked up by Michael Carter at aidsmap.com.

Original post: Nov 10th
Last week I reported on the case of an HIV-positive gay man in Michigan whose HIV status was revealed in a TV interview and who is now facing serious criminal charges for biting his neighbour during a fight.

Todd A Heywood of the Michigan Messenger has followed up on this story and discovered that one of the charges the man faces is a Kafkaesque terrorism charge - possession or use of a harmful device - that would create a legal precedent in Michigan if the charges actually stick.

The piece also includes an interview with a Republican State Rep. Rick Jones, who sits on the Judiciary Committee, and who believes that spitting should remain criminalised.

Jones said during an interview that if someone with HIV spits at a police officer while screaming ‘I hope you get AIDS,’ that that person should be charged with a crime, because that shows an intent, even if the mode of possible transmission via spitting “would be a very difficult way to transmit” the virus. He said the intent to spread the disease is the issue, not necessarily the mode.

The entire article is posted below, with Todd's permission.

State lawmakers question terrorism charges for HIV-positive man
Bite during fight called use of a 'harmful device' under anti-terror law

By Todd A Heywood, Michigan Messenger

An HIV-positive Macomb County man is facing charges created under Michigan’s 2004 terrorism laws for biting another man in a neighborhood scuffle. That, HIV advocates, state lawmakers and legal experts say is “cowardly” and “nonsense” and increases ignorance and stigma surrounding the virus.

State Rep. Mark Meadows, who chairs the House Judiciary Committee said in an interview he does not believe the legislature had the neighborhood fight situation in mind when it drafted the terrorism laws. The Democrat from East Lansing also said he thought the prosecution was “silly.”

“Is this a dangerous instrumentality? It’s like saying that because I breathed on you and I have tuberculosis and we are fighting, that somehow because I have this disease it suddenly becomes more than just that I have this disease,” said Meadows, a former assistant attorney general. “The other charges are more than sufficient to deal with the issues involved.”

In the end, Meadows believes that the circuit court judge will toss out the terrorism charge, which he said was “a stretch.”

A fight among neighbors

The case arose out of an Oct. 18 fight between 44-year-old Daniel Allen and his neighbor Winfred Fernandis Jr. What happened that day is disputed.

According to a report from Clinton Township Police Department, Fernandis said Allen jumped him without provocation when he went to retrieve a football neighborhood kids accidentally threw onto Allen’s yard. Fernandis, according to the police report, said Allen “hugged up” to him and began to bite him. Fernandis suffered a bite wound on the lip so severe, police say, it went all the way through the lip. Fernandis sought medical treatment and the wound was sewn shut.

Allen, however, alleges that Fernandis, his wife Denise and Fernandis’ father assaulted him, and he does not recall biting the younger Fernandis. He too sustained injuries during the incident, and his lawyer during a Nov. 2 hearing presented 37 photographs of injuries, including bite marks to Allen’s body. Allen and his attorney maintain Allen was the victim of a hate crime because Allen is gay. Since the incident, Allen has filed a personal protection order against the Fernadis family and a criminal complaint with the township police.

Following the incident, police were called in and after a brief investigation, placed Allen under arrest and charged him with two crimes: aggravated assault, a misdemeanor charge which carries a punishment of up to one year in jail and/or $1,000 fine and assault with intent to maim, a 10-year felony.

Macomb County Prosecutor Eric Smith refused to return multiple messages left for him. Allen’s attorney, James Gallen, did not return calls.

HIV Becomes the Feature of the Story

The story, a man severely biting another man, drew the attention of the Detroit-area media, and Fox 2 News soon had Allen on video admitting he was HIV-positive.

That admission lead Smith, a Democrat, to say he would seek additional charges. On Nov. 2, Smith’s office amended its complaint to add a charge of possession or use of a harmful device. That law is a 25-year felony and was part of a 2004 package of terrorism laws created by the legislature in the wake of the Sept. 11, 2001, attacks.

The law makes it a crime to have a harmful device, which is defined as either biological, chemical, electronic or radioactive. Smith’s office is arguing that Allen being infected with HIV was “a device designed or intended to release a harmful biological substance,” and that his bite was thus an attempt to spread HIV.

Smith’s office is relying on a Michigan Court of Appeals ruling in a case of an HIV-positive, and hepatitis B infected prisoner who spit at prison guards during an altercation in the prison. In that case, People v. Antoine Deshaw Odom, the three judge panel found:

We therefore conclude that HIV infected blood is a ‘harmful biological substance,’ as defined by Michigan statute, because it is a substance produced by a human organism that contains a virus that can spread or cause disease in humans.

The three judge panel was silent on whether the hepatitis infection weighed in as a factor as a harmful biological substance. As a result of this finding, the court upheld a stricter sentencing score for Odom. In 2008, the Michigan Supreme Court refused to hear an appeal on the matter, upholding the Appeals Court decision.

On Nov. 2, District Court Judge Linda Davis concurred with Smith’s office and bound Allen over to Macomb Circuit Court to face the three charges.

According to The Macomb Daily, the judge said:

“[Allen] knew he was HIV-positive, and he bit the guy,” Davis said from the bench. “That on its own shows intent.”

Criminalizing HIV with traditional, non-HIV specific laws not new

HIV experts say it is a near impossibility to spread HIV through a human bite.

The Centers for Disease Control and Prevention in Atlanta said it has one case on record where it believes HIV was transmitted through a human bite. But the case, out of South Carolina, is of an older man who claims to have had no other risk factors except being bit by a sex worker who was infected with HIV. That sex worker claims the man refused to pay for her sexual services, and she bit him in an attempt to get her money.

But, even allowing for that case, experts say there are other factors to consider. In 2003, the most recent year available for statistics on the CDC website, about 1 million people in the United States were living with HIV/AIDS, putting the prevalence of HIV transmission via biting at .000000001 percent. In contrast, an online search of news reports finds hundreds of media reports of biting incidents involving HIV-positive people.

“Even if you accepted that as a transmission case,” said Catherine Hanssens, executive director of the New York City-based Center for HIV Law and Policy. The charges against Allen, she said, simply aren’t warranted. “It’s just nonsense. It’s cowardly. It’s the kind of thing that keeps kids [with HIV] out of day care and camps and allows kids [with HIV] to be kicked out of karate case.”

She said cases like Allen’s are proof that the nation is failing to address the epidemic with common sense. “It’s continuing the boogey-man characterization of people with HIV,” she said.

“This troubles me very much,” says Lambda Legal HIV Project Director Bebe Anderson. “I think it is a very dangerous thing for prosecution to proceed with a charge or an enhanced charge based on a person’s HIV status. Typically these prosecutions are based on ignorance about HIV transmission. These prosecutions add to ignorance in the general public about HIV transmission, and they certainly add to the stigmatization of people living with HIV.”

The move to charge Allen with terrorism-related charges, Anderson said, was deeply troubling.

“Its a very dangerous notion that somebody who has a physical condition such as H1N1 or HIV or some other virus, that, that person then can then be charged with having a harmful biological substance and then if they are out there in contact with other people and they are putting other people at risk it is troubling.” said Anderson. “That’s not something that is legitimately criminalized and these prosecutions start us in that direction in a very dangerous way, I think.”

Anderson said to her knowledge this is the first time she has seen a terrorism law used in connection with an HIV-infected persons prosecution. She said she believes the terrorism law is being misapplied, and that Allen’s defense is going to have to make basic information about HIV and its transmission clear to the courts.

“I think it is very important to try to get in front of the judges and the prosecution accurate information about HIV,” Anderson said. “I think what happens is that these prosecutions are fueled by ignorance, then unfortunately that ignorance gets compounded because the judge makes a ruling or the jury makes a ruling based on fear and myths of HIV and not the actual risk posed by particular conduct.”

Hanssens and Anderson said that the trend of charging HIV-positive people with charges based on their HIV status is nothing new, but both say there has been an increase in cases in recent years.

“What seems new is there seems to be a sudden uptick in the number of these type of cases in the last year or so,” Anderson said.

HIV activist Mark Peterson, from Michigan POZ Action said he is also concerned about this case. In an email statement to Michigan Messenger, Peterson said:
“This sort of conflict is sad anytime it happens. At the same time, charging a person with possession or use of a harmful device simply because they have an infection, especially where the is NO scientific evidence of HIV ever being spread this way, is just another example of how our laws are based on fear and ignorance and not science…Its interesting to see how the impact of stigma and homophobia that still surrounds HIV shows up in our legal system.”

And Meadows is not the only legislator sounding off on the case.

State Sen. Hansen Clarke, a Detroit Democrat and a vocal advocate on behalf of people living with HIV/AIDS, said in an interview that the charges are out of proportion.

“I think we need to put this in perspective in light of the tragic events at Fort Hood,” Clarke said. “That should be investigated as terrorism. The magnitude of the instances is not even similar.”

He said the impact of such a prosecution was “harmful” to addressing HIV stigma in the state.

“I don’t think our legal system should treat everyone that has a disease that could be communicated to some one else differently,” Clarke said.

State Rep. Rick Jones, a Republican from Grand Ledge who sits on the Judiciary Committee, said the terrorism charge was likely not appropriate.

“If it was a fight and people were biting each other I would not think that is an appropriate charge,” said Jones, a former Eaton County sheriff. “I think you should able to be charged with attempt to transfer HIV if it can be shown in a court of law you made a genuine attempt to transfer [it].”

Changes in law deemed necessary

While the use of non-specific HIV laws to criminalize those infected is not a new trend, neither are the laws to criminalize HIV. Michigan passed a law in 1988 which makes it a felony for a person who knows he or she is infected with HIV to engage in sexual penetration, however slight, without disclosing that status first.

In April, Michigan Messenger highlighted the story of Michael Holder who spent eight years in a Michigan prison for allegedly failing to disclose his HIV-status to his partner. The Iowa Independent, Michigan Messenger’s sibling site, has closely followed the criminal prosecution and conviction of Nick Rhoades, who was convicted of failing to disclose his HIV status and sentenced to 25 years in prison. He was released in September and is serving a five-year stint on probation after a judge reconsidered his harsh sentence.

Federal law mandated all states to certify each had a law in place to criminally prosecute people with HIV who did not disclose that to people before engaging in behavior which might spread the virus. That mandate was made in 1990 and by 2000 all 50 states had certified.

But two decades into the epidemic, with science getting a better understanding of HIV and how it is spread, lawmakers are beginning to say the current laws need to be revisited.

Jones said during an interview that if someone with HIV spits at a police officer while screaming ‘I hope you get AIDS,’ that that person should be charged with a crime, because that shows an intent, even if the mode of possible transmission via spitting “would be a very difficult way to transmit” the virus. He said the intent to spread the disease is the issue, not necessarily the mode.

Jones, who also once served as a jail administrator, was tasked with knowing universal precaution rules inside and out. He also added that the law should be expanded to include other diseases, such as tuberculous and hepatitis.

Jones discussed Michigan’s 20-year-old disclosure law which makes it a crime for an HIV-positive person to engage in sexual penetration, however slight, without first disclosing their HIV infection. He was surprised to learn the law did not address sharing needles, but including activities that cannot spread HIV, such as sex toys. Asked if he believed it was time to revisit the disclosure law, he said: “Yes. Yes, I would agree with that. But I might add things like needle sharing, and I might subtract things to make more of an intent crime.”

US: Michigan woman gets 11 months for non-disclosure

A 54-year-old woman has been sentenced to 11 months in prison to failing to inform her male sex partner that she was HIV positive under Michigan's disclosure laws.

Todd Heywood of the Michigan Messenger covers the case in two reports covering her March arrest and her sentencing following her 'no contest' plea.

She is accused of failing to tell a 45-year-old Traverse City man that she was HIV-positive before engaging in sex with him. Police say she had sex with him six times June 2009 and January [2010]... [She] told the court she had recently moved to Michigan, and owned nothing, “just my clothes.”... She told the court she was a recovering cocaine and alcohol addict, and had moved to Michigan from Florida.... 

[Earlier this week, she] pleaded no contest to failing to inform her male sex partner that she was HIV positive. She has been sentenced to 11 months in jail, inpatient drug rehabilitation and five years of probation by an Isabella County Circuit Court Judge. While the woman’s viral load and other factors determining the infectiousness of her virus were not disclosed, or discussed, Judge Mark Duthie called her behavior “reckless and dangerous,” reports the Mt. Pleasant Sun.... 

She has pleaded no contest on similar charges in Clare county stemming from the same relationship with the Traverse City man. She is expected to be sentenced in that case next month. The woman’s male partner did not attend the Isabella County sentencing of the woman. “He’s embarrassed to have his name on the charge,” Chief Assistant Isabella County Prosecutor Risa Scully told the Sun.

 Todd also very helpully highlights myriad problems with Michigan law as it currently stands.

Michigan disclosure law is considered “overly broad,” and “open for abuse” by experts. Under the law, before any penetration “however slight” occurs, an HIV-positive person must disclose their HIV status to a partner. The law does not criminalize the sharing of needles, which is a well known mode of transmission for HIV, however, it does criminalize sex toy use without a disclosure. The Centers for Disease Control and Prevention in Atlanta has never identified a case of HIV where the virus was transmitted by a sex toy.

Michigan is one of 32 states with an HIV-specific criminal law. Most of the laws were passed in the late 80s and early 90s, before the discovery of powerful anti-retroviral medications which dramatically decrease the progression of HIV infection. In July, President Barack Obama issued the nation’s first National HIV/AIDS Strategy and part of the strategy includes reviewing and repealing the HIV-specific criminal laws because “the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment.”

US: Michigan man gets nine months for HIV exposure

A 21-year-old from Bay City, Michigan, who pleaded guilty under Michigan'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 has been jailed for nine months. The age of consent in Michigan is 16, so this was not statutory rape.

The Midland Daily News reports that Isaiah Diaz

had unprotected sex with a 16-year-old girl on June 13, and told her the next day that he was infected with AIDS. She talked to her parents, who in turn notified police. The teen was tested for AIDS, but the results of that test are sealed, police said. Diaz was arrested and was arraigned on June 15. The case was bound to the circuit court on July 13. He entered a guilty plea to the offense on Oct. 22. Court records show state guidelines based on the offense and Diaz' previous record called for up to nine months in jail. He was sentenced by Midland County Circuit Court Judge Michael J. Beale to serve nine months in jail with credit for 152 days, to be monitored on probation for three years, and pay a total of $1,250 fines and costs. The Midland attorney appointed to represent Diaz, Lisa Blanton, asked that he be subject to counseling and substance abuse treatment while incarcerated, records show. Beale ordered jail staff to complete a mental health evaluation.

The story was also covered by Todd A Heywood of the Michigan Messenger who highlights that

Some lawmakers in the state House have started talking about possibly revisiting the law, including State Rep. Rick Jones, a Republican from Grand Ledge.

US: Media, police, judge conspire in 'hate crime' against gay HIV-positive man in biting case

I am so mad I could spit and bite! I've seen a lot of bad reporting and bad legal decisions during my time blogging, but never before have I seen the media conspire with the criminal justice system in such a calculated, prejudiced, stigmatising, and ultimately harmful way.

A gay man from a small city in Michigan who has been harrassed and beaten up by neighbours for years, has been charged with "assault with intent to maim, assault with intent to commit great bodily harm and possession or use of a harmful device" after the latest assault resulted in biting his neighbour the lip whilst he was defending himself.

The story first appeared on October 30th in the Detroit News.

Although police allege [the accused] was the lone attacker -- biting neighbor Winfred Fernandis Jr., 28, on the lip following the Oct. 18 confrontation -- [the acccused] says he's long been the target of bigotry on his street, and Fernandis, along with several of Fernandis' family members, took turns beating him.

"I have no memory of biting him," said [the accused], who is due in 41-B District Court for a preliminary hearing Monday. He divulged his HIV status after questioning from the media. "This person has been threatening me for years. The hatred needs to stop."

"He divulged his HIV status after questioning from the media."

How did that happen? Well, Fox News did some 'investigating' and discovered he was HIV-positive. They asked him to confirm it on camera - he did. They then told the bitten neighbour on camera. That's when it got ugly.

Here's the Fox News report.


Since HIV is involved, Clinton Township District Court Judge Linda Davis said during a preliminary hearing on November 2nd that just knowing he was HIV-positive and biting the neighbour is enough to sustain these very serious charges, reports a second story in the Detroit News.

"He knew he was HIV-positive, and he bit the guy," Davis said. "That on its own shows intent."

No it doesn't, Judge Davis, because saliva from a bite does not expose someone to HIV. Now she is implicated, along with the police and the complainant (and his wife), in a hate crime.

"I am still maintaining my client is the victim of a hate crime," [the man's attorney, James L. Galen Jr.] said. "He will be exonerated. This is the very first battle in what I think is going to be a long war."

A pretrial and arraignment will take place on November 16th.

US: Michigan strip club employee pleads 'no contest' to HIV non-disclosure (updated)

The 23 year-old Michigan woman named and shamed following her arrest along with five other employees of the Escape Reality strip club in May, has pleaded 'no-contest' to "one count of engaging in a sex act without informing her partner of her positive HIV status." Her real crimes were dealing drugs, but it is her HIV status that makes her so much more of a criminal in the State of Michigan's eyes.

There's definitely something very fishy about this case, which highlights how the police, courts and media conspire to make HIV-positive people appear to be far more dangerous to society than we actually are.

Orginally, the woman was charged with "three counts of engaging in sexual penetration without advising the partner that she has been diagnosed as being HIV positive" each of which can result in "up to four years in prison and a fine of up to $5,000."

However, according to the South Bend Tribune the woman entered into a plea agreement that meant the mother of three faced lesser charges and "an 18-month cap on jail time".

As well as pleading 'no contest' to one count of engaging in an act of sexual penetration while failing to inform her partner she was HIV-positive, she pleaded guilty to four drug-related charges and one charge of "engaging in lewd and lascivious conduct."

Other drug charges were dropped under the plea agreement, as were two other counts of failure to inform partners of her HIV.

The article goes on to say that she and another woman "both performed sex acts on a confidential informant at the club."

However, the evidence presented to the court, via testimony from Detective Sgt. Dave Toxopeus, "a Dowagiac police officer working with the Cass County Sheriff Office's Narcotics Unit" does not support this statement. He actually testified that the confidential informant

told him she... provided him with lap dances during which she exposed private body parts and would stop just short of offering him the opportunity to engage in a sex act.

Let's just take a look at Michigan's HIV-specific law

“Sexual penetration” means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body; emission of semen is not required.

Given the incredibly wide range of ways to break this stupid, discriminatory and out-of-date law, and the testimony that they didn't actually engage in a sex act, I'm guessing that, perhaps, she allowed the confidential informant to place his finger (or tongue?) on her clitoris or something equally as benign. She certainly didn't appear to do anything that risked the transmission of HIV. (And didn't he have a responsibility to protect himself anyway if he had gone 'all the way'?)

And although the police had engaged in a fishing expedition by naming the woman, and asking for "anyone with information related to this case" there appear to have been no further evidence that the woman had exposed anyone to HIV. Instead, she is treated like a pariah because of her HIV status.

A second report, from the Niles Daily Star, which erroneously states that the woman pleaded guilty to "five sex-related convictions" adds some drama to the court scene

[She] admitted she did not inform her male partners at the club that she was HIV-positive. She cried as she sat at the bench before Judge Michael Dodge and pleaded guilty to charges as follows: 1.) conspiracy to deliver or manufacture methamphetamine or ecstasy; 2.) delivery or manufacturing of methamphetamine or ecstasy; 3.) conspiracy to deliver or manufacture cocaine less than 50 grams; 4.) delivery or manufacturing cocaine less than 50 grams; and 5.) lewd and lascivious conduct.

The woman will be sentenced on Friday August 7th.

Update: September 22nd. She received a rather strange sentence - a mimum of 16 months but a maximum of 20 years, according to The Niles Daily Star.

Judge Michael Dodge sentenced Melissa Goodman, 24, of Elkhart, Ind. saying she had a plea agreement of 18 months. He told her she would have gone to prison for 30 months but with the sentence bargain the court could accept it or reject it.

He told her that her cooperation and Assistant Prosecutor Diab Rizk’s agreement of 16 months, the court will deviate from her guideline range. That was 30 to 50 months. Other related counts were dropped of the April 22 offense at the strip joint at Pleasant Lake, 68502 Dailey Road.

Rizik said Goodman performed serious actions and jeopardized a number of individuals. But she did agree to cooperate with criminal investigations. He said the prosecutor’s office believed 16 months was appropriate.

Defense attorney Dale Blunier said he appreciated the recommendations of the prosecutor and noted Goodman has no prior record. He said she is a 24-year-old single mother and was trying to support her children.

“She cares about her children and knows what she did was wrong. She does have HIV,” he said. She has changed her life and wants to finish her education and go to college to improve herself. Her children were taken away, and she is trying to get them back. He said she may be eligible for boot camp.

Goodman apologized to the public.

US: Excellent Michigan Messenger article on abuse of ineffective HIV disclosure laws

Here's a truly excellent, and sobering, article from the Michigan Messenger - an independently-produced political news daily featuring original and investigative reporting – that spells out in an interview with an African-Amercian man convicted under the state's HIV exposure law – just how these laws are open to abuse, both by individuals and the criminal justice system itself.

In brief, Michael S. Holder was accused of not disclosing his status before having sex by his (white) ex-girlfriend. Five members of the jury admitted during jury selection that they were prejudiced either against inter-racial relationships or against African-American men, but were allowed to remain on the jury. The complainant retracted her original testimony on the stand, and admitted that Mr Holder had, in fact, disclosed his HIV status before they had sex.

On Dec. 3, 2001, the jury of 11 white women and one white man — including the five jurors who noted their opposition to inter-racial relationships on their questionnaires — voted to convict Holder of violating the disclosure law. He was sentenced to 10-15 years in prison, three times the recommended sentence. That sentence was reduced in 2003 to 7 1/2 to 15 years because of an appeal that the state Attorney General’s office failed to respond to. But Holder’s pleas for justice in regard to incompetent counsel were denied by the Michigan Court of Appeals and the Michigan Supreme Court. A writ of Habeas Corpus filed in federal court was denied and is currently slated for a hearing in the U.S. Court of Appeals for the Sixth Circuit in June.

The article also includes a brief history both of how Michigan's HIV exposure laws came to be enacted, and US HIV-specific laws in general.

In 1990, the Ryan White Care Act required states receiving federal funds for the assistance of those impacted by HIV to certify the state had laws to prosecute HIV transmission. By the time the bill was sent for reauthorization in 2000, this mandate was removed, because 32 states had passed laws specific to HIV, and all 50 had certified they had criminal laws to address HIV transmission.

HIV is the only virus with a felony attached to it in Michigan. Those persons with human papillomaviruses, which have been linked to cancers, herpes, Hepatitis B and C, and other viral or bacterial infections are not required under state law to disclose their infection to potential sexual partners.

[...]

State Sen. Samuel Buzz Thomas, a Detroit Democrat, toyed with the idea of introducing legislation to expand the disclosure law to include persons infected with Hepatitis B and/or C last session. But the legislation was never introduced, his chief of staff Dennis Denno said. Thomas declined multiple requests for an interview on this topic.

It also includes interviews with Lance Gable, associate professor of law at Wayne State University; Bebe Anderson, Lambda Legal's HIV project director; Jay Kaplan, staff attorney for the LGBT project of the American Civil Liberties Union of Michigan; and, most strikingly, a Michigan Senator.

“By criminalizing sexual activity, it hasn’t been able to protect the public,” said State Sen. Hansen Clarke, a Detroit Democrat. “We’ve [the legislature] got to look at a different policy because the current one is not effective. It could be something counterproductive, but I have to research that more.”

Click here to read Michigan’s HIV disclosure law: Overly broad and open to abuse, by Todd A. Heywood.

US: Michigan dancer charged with HIV exposure

A woman working in a Kalamazoo strip club, somewhat ironically named Escape Reality, was arraigned earlier this week and charged under Michigan's HIV-specific law with "three counts of engaging in sexual penetration without advising the partner that she has been diagnosed as being HIV positive."

According to the brief story in the Kalamazoo Gazette:

All three HIV-related incidents are alleged to have occurred inside the business between Feb. 11 and April 15. Each HIV-related count carries with it a penalty of up to four years in prison and a fine of up to $5,000.

The story then asks "anyone with information related to this case" to call the police.

The woman was one of six Escape Reality employees arrested last week and accused of prostitution and drug delivery; the club is now padlocked pending an order to close it down for a year.

US: Michigan man re-sentenced following appeal

A Michigan man, previously sentenced to a prison term lasting five to 15 years after pleading no contest to two charges of criminal HIV exposure in early 2007, has been re-sentenced by the same judge to four to 15 years in prison following an appeal.

Russell Willis, 40, had appealed the original sentence arguing that he had made a plea agreement for a minimum of two years in prison. But Judge James Kingsley gave him a harsher sentence because Willis, out on bail at the time, did not appear for his sentencing hearing.

The Michigal Court of Appeals ruled that the sentencing agreement could not be changed just because Willis did not appear, but the new sentence is still double the agreement.

According to The Battle Creek Enquirer:

The case stemmed from sexual acts with two women, one in 2004 and the other in 2006. They both told Battle Creek police Willis did not tell them he had HIV, or human immunodeficiency virus, which can lead to AIDS. Willis knew he had the virus and had been told by the Kalamazoo County Health Department he was required by law to notify sexual partners, police and prosecutors said. Willis contends he told the women.

"Callous disregard earned you a prison sentence," Calhoun County Circuit Court Judge James Kingsley said. "You deceived and took advantage of women, knowing you are diseased."

The case and original sentencing had previously been reported on the website of local TV news channel, WWMT. Both women are now HIV-positive, but Michigan's laws have a low proof theshold and do not have to prove that Mr Willis was the source of their infection, only that he did not disclose his HIV status before having unprotected sex with them.

US: Michigan man pleads 'no contest' to HIV exposure charges; faces life in prison

Update: February 1st 2009. Gerald Campbell Jr. has been sentenced t0 between 10 and 15 years in prison, according to a report in Montcalm County's Daily News.

A quote from the Montcalm County Assistant Prosecutor, Christopher Hekman, sums up how much ignorance there is amongst those working in the criminal justice system about HIV. None of his four 'victims' were infected with HIV, and yet following a comment by Campbell's attorney, Dennis Moore, that this may well be a life sentence for his client, Hekman tells the paper:

"We're talking about four women who are not out of the woods yet," Montcalm County Assistant Prosecutor Christopher Hekman responded. "They may still come down with this fatal disease (AIDS). Mr. Moore talks about a life sentence for his client, but he (Campbell) may have handed down four life sentences to these women, two of whom are not even adults yet."

Today's sensitive HIV antibody tests have reduced the 'window period' between infection and diagnosis to a few weeks. A few people may produce antibodies outside this period, but all tests are now accurate by 3 months. Mr Campbell had unprotected sex with four women (two of whom were under 16) at least six months ago, and probably closer to a year. There is no way that they could now possibly test HIV-positive as a result of those sexual encounters.

Original post: A 32 year-old Michigan man has pleaded 'no contest' to two counts of HIV exposure and two counts of underage sex, after complaints from two women led to widespread publicity and a police 'fishing expedition', which resulted in two further complainants, both of whom were under 16.

He faces a life sentence.

The brief AP story, published in the Detroit Free Press, is below.

HIV-positive man pleads no contest to 4 sex charges

ASSOCIATED PRESS
December 5, 2008

STANTON, Mich.— A man accused of molesting two underaged girls and having unprotected sex with two women who did not know he carries the AIDS virus has pleaded no contest to four felony sex charges.

Thirty-two-year-old Gerald Campbell Jr. of Crystal entered the pleas Thursday in a Stanton courtroom. Crystal is about 45 miles northeast of Grand Rapids.

A no-contest plea is not an admission of guilt but is treated by the court as such at sentencing.

Campbell pleaded no contest to two counts of AIDS sexual penetration with an uninformed partner and two counts of third-degree criminal sexual conduct.

He faces up to life in prison when sentenced.

Defense lawyer Dennis Moore declined to comment when contacted at his Edmore office.

HIV-positive Crystal man is sent to prison
Elisabeth Waldon, The Daily News
30 Jan 2009

STANTON - An HIV-positive Crystal resident was sent back to prison for up to 15 years Thursday after pleading no contest to four sex charges.

Gerald Campbell Jr., 32, appeared handcuffed and wearing jail clothes alongside his attorney, Dennis Moore of Edmore, for sentencing before Judge Suzanne Hoseth Kreeger in 8th Judicial Circuit Court.

Campbell pleaded no contest last year to two counts of AIDS sexual penetration with an uninformed partner and two counts of third-degree criminal sexual conduct.

A no contest plea does not admit guilt but is treated as a guilty plea by the court.

The crimes involved two women from Carson City and Hubbardston plus two underage girls from Belding and Crystal. Carson City Police Chief Jeff Hilliker investigated the case. He said the two underage girls came forward after The Daily News published a Sept. 3, 2008, story about the two women victims.

"This sentence that is to be imposed may very well be a life sentence for this young man," Moore said.

"We're talking about four women who are not out of the woods yet," Montcalm County Assistant Prosecutor Christopher Hekman responded. "They may still come down with this fatal disease (AIDS). Mr. Moore talks about a life sentence for his client, but he (Campbell) may have handed down four life sentences to these women, two of whom are not even adults yet."

Before sentencing, Kreeger told Campbell he had "a reckless disregard for the welfare of others."

Campbell testified in this week's arson trial against Jim Westra, owner of the former Haunted Mill in Greenville. During that trial Campbell said he was testifying because his conscience was bothering him. Despite his testimony, he did not receive a deal from the prosecutor's office.

"I hope that you do have a conscience and that it does eat at you because this type of behavior is criminal," Hoseth Kreeger said Thursday.

She then sentenced Campbell to from 10 to 15 years in prison with no credit for time already served, since he was on probation at the time of his offenses. He also must register as a sex offender.

"I just hope the best for the victims," said Hilliker, who was present during Thursday's sentencing. "I hope they come out OK."

Campbell previously served prison time from the ages of 17 to 31. He was sentenced to from 12 to 25 years in prison on Dec. 3, 1993, for assault with intent to commit murder. Campbell was paroled from prison on Sept. 25, 2007.

US: Michigan woman second to face HIV exposure charges in Kalamazoo within a month

Update: Dec 9th

Ms Williams was sentenced to time served, 68 days, and placed on probation for five years by Judge Pamela L. Lightvoet. She had pleaded guilty in November to one count of failing to tell sexual partners she had tested positive for HIV.

Original post

A 36 year-old woman has been charged under Michigan's HIV exposure laws for failing to inform two of her sexual partners of her status before the men had sex with her without using condoms. (Putting it that way does make the law seem absurd, doesn't it?)

This is second HIV exposure case in the small southwestern Michigan city (pop 71, 145) in three weeks. Last month, a 25 year-old Kalamazoo man was also accused on two counts of breaking HIV exposure laws in 2005. A police fishing expedition has now resulted in two more complainants from 2004 coming out of the woodwork.

The woman is now the subject of a similar fishing expedition.

Each charge carries a maximum prison term of four years.

Kalamazoo woman with HIV is the second person to face charges within a month
Rex Hall Jr.
Kalamazoo Gazette
October 08, 2008

A Kalamazoo woman faces felony charges for allegedly failing to tell two of her sexual partners that she has tested positive for carrying HIV.

Bobbi Jo Williams, 36, was arraigned Monday in Kalamazoo County District Court on two counts of having sex with an uninformed partner, according to the Kalamazoo Department of Public Safety. She was being held in the county jail on $5,000 cash bond, Detective Sgt. Karianne Thomas said.

It is the second such arrest in the Kalamazoo area in less than a month.

In September, Travis Kurtz, 25, of Kalamazoo, was charged with two counts of failing to notify sexual partners that he is HIV-positive. The incidents allegedly occurred in 2005. Kurtz also was charged with two additional counts Oct. 1 for alleged incidents in 2004.

Williams is scheduled to be back in court Oct. 15 for a hearing regarding evidence against her. Kurtz's hearing is scheduled for Oct. 22.

Police ask those who have information about Williams or believe they are victims to call KDPS at xxx-xxxx or Silent Observer at xxx-xxxx, or go online to the Silent Observer Web site.

US: Another Michigan man accused of HIV exposure, libelled on TV and online

UPDATE Feb 3rd 2009: Mr Kurtz was sentenced to just two months in jail, according to a report from the Kalamazoo Gazette.

Travis Michael Kurtz, 25, could have faced up to four years in prison and a $5,000 fine for each count of failing to notify sex partners that he is HIV-positive...He pleaded guilty to two counts in December in an agreement with the Kalamazoo County Prosecutor's Office that included the provision he work with authorities to notify other sexual partners that he is HIV-positive. "He never intended to harm anyone,'' said Kurtz's defense attorney, Gary R. Peterson. Kalamazoo County Circuit Judge J. Richardson Johnson also ordered Kurtz to spend one year on probation, pay victim restitution, court costs and state fees.

ORIGINAL POST: A 25 year-old Michigan man, arraigned last week following two complaints (one from a gay man, and one from a woman) that he had unprotected sex without disclosure, is now subject of intense scrutiny (and gossip) in his home town of Kalamazoo thanks to the power of TV and the internet.

A local TV station interviewed the two complainants (surely that is prejudicial?) and the more than 125 comments on the TV station's news story webpage include details written by the two complainants that must not only be considered highly prejudicial but also libellous.

Obviously these comments aren't moderated, but how can this be tolerated? I'm not repeating any of the comments here, but if you click on this link to the story, you'll see what I'm talking about.

This is a very worrying trend. I'm often sent emails and comments for the website from complainants who want to tell me their side of the story, before the case has reached trial (and sometimes before there has been an arrest). I wouldn't consider publishing these allegations, not only for legal reasons, but for ethical reason, too. The legal system, as flawed as it is, is the only way that anyone accused of a 'crime' can have fair hearing - trial by media should not be an option.

He didn't tell them he was HIV positive, now they are speaking out
September 18, 2008
PORTAGE, Mich.

(NEWSCHANNEL 3) - An HIV positive man is facing big trouble for having unprotected sex without telling his partners that he was HIV positive.

Travis Kurtz, a 25-year-old man from Kalamazoo, was formally charged Thursday with two counts for failing to notify his partners that he was HIV positive. Kurtz faces up to four years in prison for each count.

Newschannel 3 spoke with two of the uninformed partners Thursday.

It's a very difficult situation for both of them. Both say the cared very much about Kurtz. Coming forward with their stories was a very brave and unselfish act.

"I asked him lots of times have you been tested?" Lisa Stoner told Newschannel 3, "Oh I've been tested. I'm good, I'm good."

Stoner started dating Kurtz three years ago, knowing that he was bi-sexual, she said that didn't bother her.

"I kept thinking you can't help who you fall in love with," Stoner said, "it was us against the world, and I loved him."

What Stoner didn't know is that Kurtz is HIV positive and that he was diagnosed as such years earlier, when he was just nineteen.

"It's blown my world apart," Stoner said, "not only have I found out that somebody I love has HIV, but that he didn't tell me, that the whole relationship feels like a lie."

Kurtz never told Stoner, they broke up in June and Stoner was finally told the truth by Kurtz's new boyfriend, Tim Welch, when she ran into him by chance in September while out with Kurtz. Welch himself had to be told by a mutual friend.

"The day I found out I wound up having a seizure and wound up in the hospital," Welch said, "and he came into the room and I just started crying."

Even then, Welch says that Kurtz was very combative and evasive.

"I wrote out a whole list of questions and he just simply said if he felt he was done with the conversation he would let me know and that would be the end of it," Welch said.

Welch never got an answer to most of his questions, now he and Stoner want to warn others who may have been intimate with Kurtz and to caution everyone about the continuing danger of HIV and AIDS.

"I want people to be aware," Stoner said, "I want people to be sure they get tested and be more cautious."

Both Welch and Stoner have been tested for HIV, the first tests came back negative, but they will need to be tested several more times in the coming year.

Portage Police are investigating to see if Kurtz may have infected anyone else.

More than a million people are living with the HIV virus in the United States, and studies show that 56,000 were diagnosed in 2006 alone. It's estimated that a quarter of the people who are infected are not even aware that they have HIV.

US: Michigan man accused of HIV exposure, underage sex, tattooing without disclosure

A 32 year-old Michigan man has been arrested under the State's HIV exposure laws, following a complaint from two women. Widespread publicity - including local media publishing his name and photo - and a police 'fishing expedition' has unearthed two further complainants, both of whom also under 16.

The case highlights many problems with HIV exposure laws, and the way that the privacy of HIV-positive individuals is being invaded through these laws. The media coverage also smacks of moral panic - as if it were totally unheard-of for an HIV-positive person to have unprotected sex without disclosure.

Adding to the complex nature of this particular case is the fact that the man was out on parole (for an unrelated crime) and may have been subject to mandatory HIV testing and subsequent HIV disclosure to local public health authorities. He also worked as a tattooist, and the Michigan police and local TV station journalists also appear to suffer from a stupefying amount of prejudice, stigma and ignorance regarding how HIV is transmitted.

Investigators say Gerald Campbell Jr., 32, of Crystal, didn't inform four women before having sex with them, and potentially 20 others before giving them tattoos. Police say they are not sure if the tattoo needles Campbell used are dirty, but the implications are there.

"I wish that it would just go away," one victim told 24 Hour News 8. "I'm frustrated, angry that he couldn't say nothing to nobody about it."

The woman says she got a tattoo in July and just found out the man who gave it to her is Campbell. She said he never told her about his infection.

Three reports below.

Man faces trial for hiding HIV infection from partners
Friday, September 05, 2008

By Pat Shellenbarger

The Grand Rapids Press

A Montcalm County man released from prison a year ago after serving 14 years for assault with intent to commit murder now is jailed on charges he had sex with two women without telling them he is HIV-positive.

Following a preliminary hearing this week, Gerald Ray Campbell Jr., 32, of Crystal, was ordered to stand trial on four counts of violating a 1988 state law requiring anyone infected with the human immunodeficiency virus, which causes AIDS, to disclose that information before engaging in sex.

A Carson City woman and a Hubbardston woman testified in Montcalm County District Court on Tuesday that Campbell did not warn them of his infection before having sex with them. A preliminary blood test for the Carson City woman came back negative, but public health officials said it can take as much as six months for the virus to reach detectable levels. The Hubbardston woman did not yet have the results of a blood test taken earlier this week.

Until last September, Campbell was in prison since 1993. At the age of 17, he pleaded no contest to randomly firing a rifle at cars passing his home on East Stanton Road in Crystal Township, wounding a Fenwick man in the shoulder.

Campbell was paroled on Sept. 25, 2007, but was in jail on a parole violation when the allegations surfaced that he exposed the women to HIV, Carson City Police Chief Jeff Hilliker said.

While investigating a theft case, Hilliker stopped by the home of the Carson City woman, he said.

The woman, in her early 30s, told him she recently had received a registered letter from the Central Michigan District Health Department in Mount Pleasant warning she might have been exposed to HIV and urging her to be tested.

While the letter did not name the person who might have exposed her, the woman told Hilliker she had met Campbell at a grocery store last February, and the two began a sexual relationship in March. She also told Hilliker of the second woman, who confirmed she, too, had a sexual relationship with Campbell.

"I went to the jail, and he admitted everything," Hilliker said, but added that Campbell claimed he had advised both women of his HIV status.

It is unclear how the health department learned of Campbell's HIV and the potential exposure of the Carson City woman, but all inmates coming into the state's prisons are tested for the infection. When an inmate tests positive, the Corrections Department notifies the state Department of Community Health.

Hilliker said Campbell apparently told the health officials he had been having sex with the Carson City woman.

Hilliker urged anyone who had unprotected sex with Campbell to be tested for HIV and contact the Carson City police at (989) 584-3515.

Campbell is facing four counts of violating the state AIDS Disclosure Law -- two counts for each woman, Montcalm County Prosecutor Andrea Krause said.

Each count normally carries a penalty of four years in prison and a $2,000 fine, but, since Campbell is charged as a habitual offender, he could face as many as six years in prison on each of the four counts.

Krause said Campbell is the first person to be prosecuted in Montcalm County for violating the AIDS Disclosure Law. The first person charged under the law pleaded no contest in Lake County in 1991.

Man with HIV arrested for not telling sex partners
Sep 5, 2008
WoodTV.com

CARSON CITY, Mich. -- What started as a tip to health officials has led to a criminal investigation.

A man who is HIV positive has been arrested for not telling his sex partners and people he gave tattoos about his infection. Police in Carson City say the case is snowballing and the victim list keeps growing.

Investigators say Gerald Campbell Jr., 32, of Crystal, didn't inform four women before having sex with them, and potentially 20 others before giving them tattoos. Police say they are not sure if the tattoo needles Campbell used are dirty, but the implications are there.

"I wish that it would just go away," one victim told 24 Hour News 8. "I'm frustrated, angry that he couldn't say nothing to nobody about it."

The woman says she got a tattoo in July and just found out the man who gave it to her is Campbell. She said he never told her about his infection.

She is not alone.

"Sit there and watch them break down, watch family members break down. There's no words to describe it. It's undescribable (sic)," Carson City Police Chief Jeff Hilliker said.

Investigators say all these victims have been in the dark about Campbell having HIV. Not even his family knew.

"It's a surprise. I didn't know he had AIDS," said Campbell's grandmother.

Investigators have been learning more about Campbell who has a criminal record. He got out of prison last year after serving 15 years for assault with intent to murder.

Officials from area health departments were on a conference call Friday. They are now urging people who have come into contact with Campbell to call police and get tested for AIDS.

"I urge people to think they'll always pass it on. I suppose not every encounter is going to result in an infection but you're playing Russian roulette when you have sex with someone who is HIV positive," said Dr. Robert Graham of the Mid-Michigan District Health Department.

The Mid-Michigan District Health Department is urging anyone who may have had unprotected sex with Campbell to be tested for HIV and other sexually transmitted diseases. They can call (989) 831-3615 Monday through Friday from 8 a.m. to noon, and 1 p.m. to 5 p.m. to schedule an appointment for a free, anonymous and confidential consultation.

Crystal AIDS man hit with more charges
Elisabeth Waldon
The Daily News/WZZM.com
September 12 2008

STANTON - A Crystal resident who earlier was charged with having sex with two women without telling them that he had AIDS was charged Wednesday with having sex with two underage girls.

Gerald Ray Campbell Jr., 32, originally was charged with two counts of AIDS sexual penetration with an uninformed partner and one count of being a habitual offender involving women from Carson City and Hubbardston.

On Wednesday, Campbell was arraigned in 64B District Court and charged with two counts of first-degree criminal sexual conduct and two counts of AIDS sexual penetration with an uninformed partner involving girls from Belding and Crystal.

He pleaded not guilty to the charges and faces a jury trial at a later date. Campbell faces up to life in prison if convicted.