US: New York Court of Appeals Says HIV+ Man’s Saliva Is Not a “Dangerous Instrument” (Press Release)

New York Court of Appeals Says HIV+ Man’s Saliva Is Not a “Dangerous Instrument”

Punishing People on the Basis of Physical Attributes Would Create “Sliding Scale of Criminal Liability”

New York, June 7, 2012 – Legal and public health experts are applauding the New York Court of Appeals, decision today to vacate the 2006 conviction and sentencing of David Plunkett, an HIV-positive man, for aggravated assault for biting a police officer. The state prosecutor argued that Plunkett had used his saliva as a “dangerous instrument” when he allegedly bit a police officer during an altercation involving several police who were restraining him following an outburst in a medical facility. Plunkett currently is serving a 10-year prison term in Sing Sing.

New York’s highest court vacated Mr. Plunkett’s conviction and dismissed the aggravated assault complaint against him on the basis that his saliva, or any body fluid or part, cannot be treated as “dangerous instruments” and a basis for charging someone with aggravated assault under New York law.

In a 1999 decision, The NY Court of Appeals had ruled that a person’s teeth cannot be characterized as a dangerous weapon, or “instruments” under the terms of the law, as an element of an assuault charge.  The prosecutor and lower court attempted to get around this by stating that the "dangerous instrument" in the indictment was in fact the defendant’s saliva, which was “readily capable of causing death or other serious physical injury.”

In its ruling, the Court “sought not simply to reach a textually and historically correct understanding of what the Legislature meant” the law to include, but also to avoid the injustices that “would result if criminal liability varied with the corporeal attributes of assailants and their victims.”  This interpretation would make an individual’s health, disability or even physical characteristics relevant to a determination of the ability to do harm, resulting in a “sliding scale of criminal liability,” the Court concluded.

The ruling is particularly important because it makes clear that a person's health status, disability or other physical attributes should never be the basis for increased charges or sentencing.

Medical and public health experts long-ago dismissed the risk of HIV transmission through spitting or biting as near-zero, too small even to be measured.

“HIV is not a particularly easy virus to transmit, and it is virtually impossible for it to be transmitted through biting,” explained Terrance Moore,Director, Policy and Health Equity at the National Alliance of State and Territorial AIDS Directors (NASTAD). “However, it is important that we realize that treating HIV or any disease as something that should be the basis of criminal charges, absent actual harm, is terrible for public health efforts. The Court’s implicit recognition of the injustice of basing liability on health status is a huge boon for our work.”

The Plunkett case is one of hundreds across the country where HIV-positive individuals face criminal charges and long sentences on the basis of their HIV status for no-risk conduct and consensual adult sex. Members of the Positive Justice Project, a national group challenging the medical, legal and ethical support for such laws, object to the gross scientific mischaracterizations reflected in HIV-specific criminal laws and prosecutions as “flying in the face of national efforts to get people with HIV tested and into treatment.”

“The decision has important implications for cases where people with HIV essentially are being charged and imprisoned on the basis of their health status rather than any intent to do harm,” said Catherine Hanssens, Executive Director of the Center for HIV Law and Policy (CHLP). “The Court of Appeals has gone beyond the issue of transmission risk to say that relying on disability or health status at all is an unfounded and unjust application of aggravated assault statutes.”

Dr. Jeff Birnbaum, Executive Director of the Health and Education Alternatives for Teens (HEAT) Program and the Family, Adolescent and Children’s Experience at SUNY (FACES) Network added, “I have to battle the type of stigma reflected in the prosecutor’s point of view all the time.  I treat young people who are being told on one hand that HIV is something they can manage, that it doesn’t make them a pariah, and on the other that their spit and blood are lethal weapons and that they are dangerous to be around. The prosecutors bringing these cases make my job so much harder. Today’s decision is really good news.”

Dozens of U.S states and territories have laws that criminalize HIV non-disclosure and “exposure,” such as through spitting or biting. Sentences imposed on people convicted of HIV-specific offenses have ranged as high as 50 years, with many getting decades-long sentences despite lack of evidence that HIV exposure, let alone transmission, even occurred. A growing number of defendants are also being required to register as sex offenders.

In New York, prosecutors have used the general criminal law to pursue people with HIV charged with HIV transmission or exposure, resulting in long prison terms despite a lack of proof that the individual charged even was the source of a partner’s infection, and even when no transmission occurs.

David Plunkett was represented by Audrey Baron Dunning. Lambda Legal submitted an amicus brief joined by the the American Academy of HIV Medicine, the Association of Nurses in AIDS Care, the Center for HIV Law and Policy, and the HIV Medical Association

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The Positive Justice Project (PJP) is the first coordinated national effort to address HIV criminalization in the United States, and is coordinated by the Center for HIV Law and Policy. For more information on PJP and HIV criminalization, go to http://www.hivlawandpolicy.org/public/initiatives/positivejusticeproject.

UK: Reckless HIV transmission case dismissed due to insufficient evidence

Some good news from the UK (actually, it's the law of England and Wales that this case is relevant to). I reported this story today on NAM's website, aidsmap.com.

Reckless HIV transmission case dismissed due to insufficient evidence
Edwin J. Bernard, Monday, February 11, 2008

The case against an HIV-positive man charged with grievous bodily harm for allegedly ‘recklessly’ sexually transmitting HIV was dismissed at Manchester Crown Court last Thursday following legal argument.

A 39 year-old man had been charged under Section 20 of the Offences against the Person Act 1861 (OAPA) – recklessly causing serious bodily harm – last September. An application for bail had been refused on the grounds that there was a risk other offences could be committed; consequently, the man had been in custody since his arrest.

The complainant was a 37-year-old woman who tested HIV-positive in September 2007, after the accused man had provided her name to clinic staff for contact tracing purposes.

In his application to dismiss the case, defence barrister, Alan Walmsley, noted that since this was her first-ever HIV antibody test, and since the complainant had admitted to at least five sexual partners in the twelve months before her diagnosis, the evidence was insufficient for a jury to be able to convict.

Judge Martin Rudland agreed, and said that this opened up the “possibility of the infection...being potentially from sources other than the defendant. The more the arguments have unfolded, the more I've become alive to the prospect of an injustice.”

“I suspect the defendant probably infected the complainant,” he noted, “but that is a long way short of what the prosecution need to prove."

According to a report in today’s Manchester Evening News, Judge Rudland freed the defendant with these words: "You are still HIV-positive. You still have clear obligations [to those] with whom you have sexual relations. You are still likely to be a defendant in criminal proceedings if you do not behave. Do you understand?"

The man answered that he did, and then left the court a free man.

This is the third time that a lack of evidence in an English prosecution for HIV transmission has resulted in the defendant being cleared.

In August 2006, a gay man was acquitted of 'reckless' HIV transmission at Kingston Crown Court, following evidence that phylogenetic analysis could not definitely prove that the defendant infected the complainant.

In February 2007, in a case that went unreported at the time, a Preston Crown Court judge dismissed a 'reckless' HIV transmission charge against a gay man due to the fact that other sexual partners of the complainant – who may have been the source of his infection – did not agree to have blood samples taken for HIV testing or phylogenetic analysis.

The defence lawyer in all three of these cases, Khurram Arif, of London solicitors, Hodge Jones & Allen, tells aidsmap.com: “This case highlights the principle that the Crown Prosecution Service has the burden of proving the reckless transmission of HIV. Proving who caused whom to be infected without scientific and medical evidence is extremely difficult. The sexual history of complainants and medical records are material when considering the possible sources of infection and in my opinion should be made available to the defence very early when causation is in issue.”

Canada: HIV exposure charge dismissed following dramatic Ontario courtroom scene

In a rare piece of good news to come out of Canada, Mark Hinton, of London, Ontario, left the court a free man yesterday after a charge of attempted aggravated sexual assault – for allegedly exposing another man to HIV two years ago – was dismissed.

Mark was originally charged with aggravated sexual assault – reckless HIV transmission – when he was arrested in July 2006, but because the Crown could not prove definitively that the complainant's infection came from him, the charges were reduced to attempted aggravated sexual assault – HIV exposure.

In a dramatic turn of events yesterday, the complainant – a 23 year-old – admitted during cross-examination by Mark's defence lawyer, Ron Ellis, that HIV was not a concern to him before he engaged in "moderately high-risk" unprotected sexual activity with previous sexual partners: basically an admission of consent to HIV exposure.

This was enough for the Crown to concede that they were unable to prove the allegation beyond a reasonable doubt, and Superior Court Justice Johanne Morissette then informed Mark that the charges were dropped and that he was free to leave the court.

Full details are in Mark's the local paper, the London Free Press, reproduced below.

Let's hope that Mark's case is the beginning of the end of the witch-hunt against HIV-positive gay men that is currently taking place in Ontario.

Charge dismissed against HIV-positive man
By Jane Sims, Sun Media.
Tue, February 5, 2008

Two years ago, Mark Hinton was singled out as a public danger after he was arrested for trying to spread the virus that causes AIDS. Yesterday, the slight man who has been HIV positive for 22 years let out a breath of relief after a judge dismissed a criminal charge of attempted aggravated sexual assault against him.

"The nightmare is over after two years," said Hinton, 41, moments after Superior Court Justice Johanne Morissette told him he was free to leave the courtroom. "This has been the hardest two years of my life."

Hinton has maintained he never infected a 23-year-old man who testified yesterday they had unprotected sex twice after meeting on a gay Internet chat line in early 2006. However, Hinton never got a chance to tell his version of events. The case ended after the man said during cross-examination by defence lawyer Ron Ellis that HIV was not a concern to him before he engaged in "moderately high-risk" unprotected sexual activity with previous sexual partners.

The man, whose identity is protected by court order, gave what Middlesex Crown attorney Geoff Beasley described as "incredibly honest" answers to Ellis's questions. That admission of consent substantially weakened the Crown's case to prove the allegation beyond a reasonable doubt, Beasley told Morissette.

The 23-year-old man testified that he and Hinton met on gay.com, an Internet chatline. They met in person and had unprotected sex twice. He said when he asked Hinton if he was "clean and healthy," Hinton told him he was fine. He testified he was unaware of Hinton's HIV status until he was told by other people. He said he sent Hinton an e-mail and the reply was he was "fine" and the rumour of his infection was not true. Later, when they met again, Hinton had a small bandage on his arm and said he was HIV negative. The man found out he was HIV positive later that spring.

Hinton was in custody for a week before he was released on bail in July 2006. He couldn't find work and said he was treated like a social pariah.

Hinton's original charge of aggravated sexual assault was reduced to attempted aggravated sexual assault because the Crown could not prove definitively that the man's infection came from Hinton.

He said after his case was dismissed that he and the man had met over three days, but never had sex. Hinton said he was being used as a "scapegoat" for the younger man's HIV status that was discovered in the spring of 2006.

Ellis said after the dismissal he planned to have Hinton tell his side of the story. He wanted to point out that after Hinton's charge and photograph were circulated in the community, no one came forward to say they had become infected with HIV through sexual activity with him. He also said his client was always forthright in disclosing his HIV status to health and police officials.

The original details of Mark's arrest and charges were reported in the London Free Press in July 2006.

Man charged with assault in HIV case gets bail
Must abide by health-unit order
By Jane Sims, London Free Press Justice Reporter
Fri, July 7, 2006

A man charged with aggravated sexual assault in connection with the possible spread of HIV to another man was released on bail Friday.

Mark Hinton, 40, thin with bleached blond hair, walked out of the prisoner’s box, paused to thank his lawyer, Jack Hardy, then sat with his friends waiting in the London courtroom following his release. He was hugged by one of his sureties. Hinton had been in custody since his arrest last week.

London police issued an order last week asking anyone who had a sexual relationship with Hinton to call the sexual-assault section at xxx-xxxx-xxx. Hinton was released with the Crown’s consent and two sureties pledging $2,000 each. A publication ban was placed on the evidence at the hearing and the person named as a victim in the charge.

Justice of the Peace Elaine Babcock said Hinton must reside with one of the sureties in London, not possess any weapons and abide by the specific conditions of a health-unit order already imposed on him.

London police arrested Hinton after a man claimed to have been infected with the sexually transmitted virus after his partner assured him he was disease-free. He had sex with the man twice between Feb. 1 and March 31, 2006. The man later learned his partner was intentionally spreading diseases.

Assistant Crown attorney Geoff Beasley did not disclose the nature of the order under the Health and Protection Promotion Act. However, there is a legal order available that can be imposed upon persons who are not complying with disclosing their infection to other people.