Colo. HIV+ Man Charged With Deadly Assault - for Spitting

A Colorado man faces charges for spitting--because he is HIV-positive.

A preliminary charge of attempted second-degree assault has been brought against Denver resident William O'Kelly, reported local newspaper the Colorado Independent on June 9.

"We are at the point in the case where it has gone to the deputy district attorney who will handle it and he is currently reviewing it," said District Attorney spokesperson Lynn Kimbrough. "The circumstances here are not common," added Kimbrough.

But such cases do occur, and when they occur, they provoke controversy. Critics of laws that treat the saliva of HIV-positive persons say that there is no scientific rationale for classifying spittle as a deadly weapon, since HIV is not transmitted via saliva. Critics of such cases have suggested that prejudice drives such laws.

In 32 states, there are laws on the books--many of them passed during the height of fear and anxiety over AIDS, in the 1980s and early 1990s--that criminalize HIV-positive individuals, in many cases in terms of their sexual activities, but in at least two states--Pennsylvania and Louisiana--for biting or even spitting at others, even though HIV is not transmitted through saliva.

In some instances, a person's HIV-positive status can leave that person liable to additional charges of "assault with a deadly weapon," the weapon being HIV. In one case, a HIV-positive man named Phillipe Padieu was charged last year in McKenney, Texas on six counts of aggravated sexual assault with a deadly weapon after having sex with half a dozen women; Padieu was found guilty and sentenced to a cumulative total of 250 years. And in Gatesville, David Castillo, the DA for Coryell County, says that he will try a suspect believed to be HIV positive on similar charges after the suspect allegedly sexually assaulted a 16-year-old boy. "You can fire a gun at someone and miss, and it's still aggravated assault with a deadly weapon," Castillo told the press, explaining that he would issue the charges even if the alleged victim tested HIV negative.

But advocates for people living with HIV disagree about the application of the law in these cases. "HIV should not be an aggravating factor unless there's some evidence that he intended to do some harm and did some harm," said the executive director of the Center for HIV Law and Policy, Catherine Hanssens, the article reported. "Criminal law in every state is adequate to deal with it," added Hanssens. "But to treat it as evidence of guilt and a deadly weapon wasn't appropriate in 1985, and it isn't appropriate now. To refer to HIV as a deadly weapon in 2010 speaks of just unforgivable ignorance."

Worldwide, the question of whether sexually active people with HIV should be face criminal charges if they knowingly expose others to the disease has been thorny. In Uganda, a proposed bill to punish gays with life imprisonment or worse stipulates that the penalty will be capital punishment for HIV-positive men who have sex with other men. In New Zealand, an Auckland man was charged with having sex with a number of partners after being diagnosed as HIV-positive; half of his sexual partners reportedly tested positive after their encounters. The suspect killed himself in his jail cell last May.

In O'Kelly's case, the charges stem from an altercation with a technician who had come to O'Kelly's home to install a court-ordered monitoring system following a drunk-driving incident. When O'Kelly objected to the amount of money he was being charged for the system, the technician replied that he would report O'Kelly to the probation officer, the Independent story said. O'Kelly then spat in the technician's face. The technician learned of O'Kelly's HIV status and pressed charges.

But the very issue of such charges being applied due to a person's HIV status, in the absence of scientific justification, is uncertain. The charge itself makes a medical leap in stating that O'Kelly's saliva was "infected," with the charge being that O'Kelly "unlawfully and feloniously attempted to cause bodily injury... by means of a deadly weapon, namely, infected saliva." Under Colorado law, the article notes, intent determines what a weapon is, and whether it is a "deadly" weapon. Arguably, if O'Kelly believed his saliva could transmit HIV, he might be criminally liable for spitting on another person.

Kimbrough noted to the press that state law applies to other instances in which disease is a factor, such as HIV-positive prostitutes, or laws that deal with a suspect's health status with regard to "tuberculosis, Hepatitis C, those kinds of things."

The article noted that, according to a June 3 article in the Michigan Messenger, a HIV-positive man in that state faced charges under Michigan's bio-terrorism laws because he bit another person. That case was thrown out of court, with the judge, Peter Maceroni, writing that, "the mere fact that defendant was HIV positive when he allegedly bit the complaining witness is insufficient to meet the elements of [the law]. There is no evidence that demonstrates defendant manufactured or possessed a harmful biological substance, i.e. HIV infected blood, with the intent to frighten, terrorize, intimidate, threaten, harass, injure or kill any person, i.e. for an unlawful purpose."

Continued Maceroni, "The fact the defendant is HIV positive, alone, cannot demonstrate he manufactured or possessed HIV infected blood for an unlawful purpose. In addition, defendant's alleged action of biting the complaining witness, without the presence of blood, is not a documented manner in which HIV can be transmitted."

"I think somebody was trying to be creative or reach way too far outside the box," the ACLU Michigan's Jay Kaplan told the press. "The unfortunate thing is that it gives credence to the misperception that HIV can be spread through saliva."