Gender, Sexuality and Law:
Assault with a Deadly Virus?
Harper Jean Tobin
Contributing Writer
Two weeks ago, an Olympia, WA
jury found Anthony Whitfield guilty of deliberately exposing seventeen women to
HIV. Whitfield faces a minimum sentence of 137 years behind bars. He is one of
hundreds of HIV+ individuals who have been prosecuted for exposing others to
the virus over the last decade. But while Whitfield’s conduct was both
blameworthy and truly harmful – five of his partners have tested positive for
HIV – criminal laws targeting those with HIV cast a much broader net.
Twenty-four states have
specific criminal laws against exposing others to HIV through consensual sex.
They differ greatly in what forms of sexual activity they prohibit, what mental
state is required, whether using a condom affects criminal liability.
Additionally, some make nondisclosure of HIV status an element of the offense,
whereas others make disclosure an affirmative defense.
State courts have upheld these
laws despite claims that they are unconstitutionally vague, unlawfully
discriminate against persons with HIV, and violate the freedoms of association
and privacy. But some criticize the laws for making a public health issue into
a criminal one, and others say the laws do not reflect real risks and
blameworthiness.
Ohio’s law, for example, makes
it a crime to engage in any sexual act without disclosing that you’re HIV+. Using
a condom doesn’t matter, even though it reduces the risk by a factor of ten.
Neither does it matter if the act has virtually no possibility of transmitting
the virus, such as cunnilingus or manual penetration. Use of any kind of sex
toy is also prohibited if it has been exposed to the HIV+ person’s bodily
fluids.
Arkansas and Michigan, on the
other hand, include penetration with “any object,” without regard to whether it
carries one’s own bodily fluids. That’s right: in those states, if you’re HIV+,
and you penetrate your partner with a brand-new dildo that’s never even been
near your fancy bits, you still must tell them you have HIV or you can go to
prison. And as long as you know you’re positive, your intent or lack thereof
vis a vis transmission of the virus is also irrelevant.
Other states’ approaches are
equally out of touch with reality. Idaho’s law, for example, focuses on the
transmission of bodily fluids, including saliva and urine. There is simply no
evidence at all that HIV can be transmitted through these fluids, and yet in
Idaho it is possible to go to prison for French kissing.
Other states criminalize any act that is “likely” to
transmit HIV, or “could” transmit HIV. “Likely” is in the eye of the beholder;
it often means “more probable than not,” but under all but the most
extraordinary circumstances no sexual act carries anywhere remotely close to a
better-than-even likelihood. “Could” may embrace activities that have only an
unproven, theoretical risk.
Courts may say these laws are
not too vague, but they certainly leave a lot of room for interpretation. What’s
more, their overbroad terms may reinforce misperceptions about HIV and social
stigma on those who carry it. These laws provide a disincentive to disclose HIV
status after the fact – which would enable an exposed party to seek testing, if
necessary, treatment – and provide no incentive to use condoms.
In addition to HIV-specific
laws, prosecutors have frequently attempted to charge HIV+ individuals under
traditional assault or attempted homicide statutes. A sorry example of this is
the case of Jimmy Lee Bird, right here in Ohio. Bird was being arrested for
disorderly conduct in 1993 when he allegedly spat at a police officer. Though
Bird later claimed he was simply trying to clear his mouth of pepper spray, he
was charged with assault with a deadly weapon, to wit: saliva (this was before
Ohio’s HIV-assault law). Shockingly, Bird pled no contest at the advice of his
lawyer, and was convicted.
In 1998, Ohio’s Supreme Court held that Bird’s plea made
it unnecessary to consider whether spit could be a deadly weapon, and upheld
his conviction. Justice Pfeifer dissented to the effect that the plea only
admitted the facts, leaving the issue of whether the facts fit the charge an
open one. He also asked whether the state would now consider jelly doughnuts to
be deadly weapons. (I do not make this stuff up.)
There are any number of alternatives to the present criminal treatment of HIV exposure. These laws could be more narrowly focused on the most blameworthy individuals and the most risky acts (as they are in a few states). Prosecution could be abandoned in favor of tort liability -- long recognized for wrongful transmission of venereal disease. Or courts and legislatures could recognize the promotion of sexual honesty and responsibility as a public health and not a legal issue -- save perhaps for the rare Anthony Whitfield. But the current patchwork of laws, apparently based on distortions of medical fact, paranoia and prejudice, cries out for change.