Lawmakers question charges for HIV-positive man

By | 2009-11-12T09:00:00-04:00 November 12th, 2009|News|

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 (D-East Lansing), who chairs the House Judiciary Committee, said he does not believe the legislature had the neighborhood fight situation in mind when it drafted the terrorism laws. He also said he thought the prosecution was “silly.”
“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 on Allen’s body, including bite marks. Allen and his attorney maintain he 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 and Allen’s attorney, James Gallen, did not return calls.

HIV comes center stage in case

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 HIV infection 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 concluded that HIV-infected blood is a “harmful biological substance because it is a substance produced by a human organism that contains a virus that can spread or cause disease in humans.”
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 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.
“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 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 to be kicked out of karate class.”
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. “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. 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.
HIV activist Mark Peterson of Michigan POZ Action said he is also concerned about this case. “This sort of conflict is sad anytime it happens,” he said. “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.”
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, agreed 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.
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 some one 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.”

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