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Critics assail crime laws aimed at people with HIV

By David Crary

Associated Press

Published: Monday, Jan. 2 2012 7:55 a.m. MST

Advocates for changes in the laws say many people have served long prison terms and been forced to register as sex offenders for conduct that posed no meaningful risk of HIV transmission. Catherine Hanssens of the Center for HIV Law and Policy, one of the key groups in the advocacy coalition, blames the longevity of the laws on "a seemingly invincible ignorance" about transmission.

Annual surveys by the Kaiser Family Foundation have documented this phenomenon. According to this year's survey, 1 in 3 Americans has a basic misunderstanding about HIV transmission — believing, for example, that one can get HIV from sharing a drinking glass or swimming in a pool with someone with HIV.

"We need to educate people," Hanssens said. "Before we change the laws, we have to change their minds."

As part of an initiative called the Positive Justice Project, Hanssens' center recently documented scores of cases since 2008 in which people were prosecuted on charges specifically related to being HIV-positive.

Among the cases:

—In March 2010, an HIV-positive man in Michigan faced bioterrorism charges of using HIV as a weapon after he allegedly bit a neighbor on the lip during an argument. Three months later, a judge threw out that charge; the defendant, Daniel Allen, was placed on 11 months of probation for assault.

—In Iowa, an HIV-positive man, Nick Rhoades, received a 25-year sentence in 2009 for failing to disclose his HIV status prior to a one-time consensual sexual encounter during which the virus was not transmitted. Rhoades' sentence was eventually suspended, but he was nonetheless required to register as a sex offender.

—In 2008, a homeless man with HIV, Willie Campbell, received a 35-year sentence for spitting at a Dallas police officer because under Texas law his saliva was considered a deadly weapon. Local health officials said the risk of HIV transmission from saliva was extremely low, but the prosecutor in the case said the tough sentence was warranted.

"No matter how minuscule, there is some risk," said Jenni Morse. "That means there is the possibility of causing serious bodily injury or death."

In Ohio, there have been several recent cases of people being charged with felonious assault under an 11-year-old state law making it a crime for anyone diagnosed with HIV or AIDS to have sex without disclosing that status to their partner. The law applies regardless of whether HIV is transmitted.

"If you participate in any sex act, no matter how major or minor, you must tell your partner you are HIV-positive before having sex — even if you are practicing safer sex!" warns a fact sheet distributed by Ohio health groups.

In an ongoing case in Cincinnati, former professional wrestler Andre Davis faces the possibility of decades in prison after being convicted in November of 14 counts of assault for having sex with women without telling them he'd tested positive for HIV. His sentencing is set for Jan. 6.

In accordance with the judge's instructions, it was never established at the trial whether any of the women actually became infected with HIV through contact with Davis, whose wrestling stage names included "Gangsta of Love."

Davis' attorney, Greg Cohen, said the law regarding HIV and felonious assault is "fear-based" and flawed because it doesn't require proof that there was any attempt to cause harm. He has said he may file an appeal.

"You can't just assume someone intended to harm someone else just by sleeping with them," Cohen said in a telephone interview.

However, prosecutor Amy Tranter, in closing arguments at last month's trial, said Davis should go to prison for a long time.

"He's shown no remorse, no responsibility for anything that he's done," she said.

William McColl, political director of the Washington-based advocacy group AIDS United, believes criminal prosecutions should be avoided in HIV-related cases except possibly for the rare instances when an HIV-positive person deliberately seeks to transmit the virus to someone else.

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