A judge in another state allowed his court bailiff to wear surgical gloves and a mask as he officiated in a case involving a defendant who had AIDS.
The attitude of this judge obviously affected the jury, Jane H. Aiken, expert on AIDS-related legal issues, told Utah judges gathered at Snowbird for the Southwest Judicial Conference on Friday.Given the magnitude of legal issues evolving from AIDS dilemma, most judges will at some time be faced with a taxing decision involving the rights of a person with AIDS, she said.
Recent state legislative efforts to answer some of these questions have been impressive. In 1987, more than 550 AIDS-related bills were introduced in state legislatures through the country, with 90 bills enacted in 31 states.
Aiken, law professor at Arizona State University College of Law, illustrated the complexity of the legal issues judges will ultimately face, by citing the following examples:
-In Los Angeles, a paramedic arrived at a scene of an accident. The man injured was having a cardiac arrest. Someone at the scene informed the paramedic that the man had AIDS. Consequently, the paramedic quit giving medical assistance and the man died. His family is suing for damages.
-In Arizona, a patient went to his physician for an AIDS test. He tested positive and the results were given in the presence of a nurse. The nurse then told the patient's employer, a grocery store manager, that his employee had AIDS. The man was fired. The patient could appeal to a court based on a breach of confidentiality.
-In New York, an apartment manager refused to rent an apartment to a person with AIDS, leaving himself open to a discrimination complaint.
-In Arizona, guards in a prison refused to assist a female inmate who was pregnant and beginning to go into labor because they knew she had AIDS. Their lack of cooperation posed a threat to the health of the mother and the child.
A judge must assess the risk factor in making decisions on legal issues involving persons with AIDS, she said.
Judges in some states have ordered employers to be educated on the real risks of AIDS to dispel some of the hysterical reactions to the virus, said Aiken. If an employer fires an employee who has AIDS, he is acting improperly.
"There is not sufficient evidence to conclude that a person with AIDS presents a health hazard," the law professor said.
One of the most difficult decisions facing judges will be determining whether to order the administration of the test that shows if someone is infected with the AIDS virus, she said.
A judge must consider: Is the test result relevant? What will happen to the person if the test if positive?
"Discrimination against persons with AIDS is immense. A judge must know that public disclosure of an AIDS-positive test could mean the person will be thrown out of his home, fired from his job, etc. It puts that person at risk in the courtroom and outside of the courtroom."
Another point of law posing a challenge to judges is the criminal element involving a persons with AIDS who infects someone else.
Charges of assault with a deadly weapon may be filed against someone accused of intentionally transmitting the deadly virus. Intent is the sticky element to consider, said Aiken. It involves knowledge that the person knew he had AIDS, knew he could transmit it and intended to transmit it.
Judges need to take extra precautions to ensure a defendant with AIDS receives a fair trial and an unbiased jury. With the hysteria surrounding AIDS, it's easy for the courtroom to become tainted with bias.
"We're not going to let a person with unreasonable fears cause discrimination," said Aiken.