CARNAL NATION

A fight between two neighbors in Macomb County, Michigan, and the resulting criminal charges have led to necessary if belated soul-searching among the state's legislators and legal experts. On October 18, a quarrel between Daniel Allen and Winfred Fernandis Jr. escalated to violence, including biting. Fernandis required medical attention after Allen bit through his neighbor's upper lip. While both men have differing accounts of the incident, police arrested Allen, charging him with aggravated assault and assault with intent to maim. However, during an interview with a Detroit-based Fox News affiliate, Allen admitted to being HIV positive, which led Macomb County Prosecutor Eric Smith to amend the charges against him. In addition to the original misdemeanor and felony charges, Smith added a charge of the possession or use of a harmful device, a felony created under Michigan's 2004 terrorism laws.

The law defines a harmful device as anything biological, chemical, electronic, or radioactive intended to cause harm. Smith argues that Allen's serostatus during the fight was “a device designed or intended to release a harmful biological substance." He further justifies the charge using prior court rulings in Michigan. District Court Judge Linda Davis upheld the charges, saying, "[Allen] knew he was HIV-positive, and he bit the guy. That on its own shows intent.” The terrorism charge carries a penalty of up to 25 years in prison upon conviction.

Meanwhile, HIV advocates and a growing number of legislators and legal experts are calling the charge "cowardly" and "nonsense" and even "silly." State Representative Mark Meadows, Chair of the House Judiciary Committee, said in an interview. “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.” He added, “The other charges are more than sufficient to deal with the issues involved.” Legislators from both parties have gone on record against the use of terrorism laws in this case and against crimes involving HIV in general.

The hyperbolic, incendiary charge of terrorism in relation to this incident throws into relief the inadequacy and fear-mongering of most criminal law regarding HIV transmission in this country. While laws differ from state to state, most require that HIV-positive individuals proactively disclose their status prior to engaging in any penetrative sexual activity, even if condoms are used. Other laws focus on the deliberate and violent transmission of or intent to transmit the virus through such activities as spitting or biting. Scientists, HIV advocates, and their legal allies say that since many of these laws were first enacted twenty years ago, science has a better understanding of how HIV is transmitted and that the risk associated with modes such as spitting or biting are negligeable. The Centers for Disease Control estimates that the likelihood of transmitting HIV through biting is on the order of .000000001 percent. In this way, such laws further stigmatize a disease that already instills fear in most people.

Bebe Anderson, HIV Project Director of the Lambda Legal Defense Fund, notes that criminal cases involving HIV-positive people with charges based on their serostatus have been on the rise in the last year or so. “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.” Anderson and other advocates are calling for a wholesale reexamination of the legal infrastructure around HIV/AIDS in which the law is measured against the science. The extreme nature of the charges against Allen prove her point.

As for Allen's case, most legal experts believe that the terrorism charge is not sustainable and will be dropped. But how many more HIV-positive people will be persecuted for their disease before the law and the public develop some common sense on the issue?