Update: Dec 8th 2010
Macomb County Circuit Court Judge Peter Maceroni today sentenced the 46 year-old Michigan man once charged under terrorism laws for allegedly biting his neighbour to eleven months on probation after pleading guilty to a single assault charge. 

“This was nothing more than gay-bashing,” attorney James L. Galen Jr. told Fox 2.  “The only reason my client took a plea deal was because of his health, and one of the witnesses didn’t show up for the defense.”

Mlive.com’s headline, ‘All bark, small bite: Probation for Clinton Twp man with HIV once charged with bioterrorism’ can only hint at the ridiculousness of the charges and the pain and financial cost suffered by this man.  In the end, probation is still too much of a penalty, and it is far too late to repair the damaged reputations of both the man accused and HIV itself.

Update: Nov 5th 2010
Todd A Heywood of the Michigan Messenger, who has been following the case of the 46-year-old Michigan man who was charged with terrorism after biting his neighbour in October 2009, reports that the man has reached a plea deal on the two felony charges that remained following the rejection of the bioterrorism charges in June 2010.

Daniel Allen was originally charged with one count of bioterrorism, one count of assault with intent to maim and one count of assault with intent to do great bodily harm less than murder. Macomb County Circuit Court Judge Peter Maceroni rejected the bioterrorism charges in June, leaving Allen facing the two, ten-year felonies.

The charges stem from an October 2009 altercation between Allen and his neighbor Winfred Fernandis, Jr. Fernandis alleges that Allen attacked him without provocation, while Allen says the incident was part of a long running series of anti-gay harassment by Fernandis and his family. Fernandis says Allen bit his lip during the fight.

Under the plea deal, Allen has agreed to plead no contest to assault with intent to maim. Under the deal, if Allen successfully concludes a probation period, the charge will be changed to a misdemeanor of aggravated assault and the second charge, assault with intent to maim would be dismissed.

But Fernadis, the victim, told the Daily that he might back out of the agreement. He specifically told the newspaper he would be OK with the deal if Allen moved from the home he owns in Clinton Township.

Allen faces a sentencing hearing in front of Maceroni Dec. 8.

Update: Nov 20th 2009
Journalist Todd A Heywood reports in another Michigan Messenger article that

HIV activists from the group Michigan Positive Action Coalition have issued a press statement encouraging people with infectious diseases, including H1N1, HIV or the common cold, to call the Macomb County prosecutor and “voluntarily turn themselves in” to be charged with terrorism. In the statement issued by Mark Peterson, a director for the group, activists called the charges leveled against 44-year-old Clinton Township resident Daniel Allen “ridiculous.”

Update: Nov 18th
Journalist Todd A Heywood has published a second article in the Michigan Messenger that includes an interview with the man’s lawyer, James Galen Jr.

The story has also been picked up by Michael Carter at aidsmap.com.

Original post: Nov 10th
Last week I reported on the case of an HIV-positive gay man in Michigan whose HIV status was revealed in a TV interview and who is now facing serious criminal charges for biting his neighbour during a fight.

Todd A Heywood of the Michigan Messenger has followed up on this story and discovered that one of the charges the man faces is a Kafkaesque terrorism charge – possession or use of a harmful device – that would create a legal precedent in Michigan if the charges actually stick.

The piece also includes an interview with a Republican State Rep. Rick Jones, who sits on the Judiciary Committee, and who believes that spitting should remain criminalised.

Jones said during an interview that if someone 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.

The entire article is posted below, with Todd’s permission.

State lawmakers question terrorism charges for HIV-positive man
Bite during fight called use of a ‘harmful device’ under anti-terror law

By Todd A Heywood, Michigan Messenger

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, who chairs the House Judiciary Committee said in an interview he does not believe the legislature had the neighborhood fight situation in mind when it drafted the terrorism laws. The Democrat from East Lansing also said he thought the prosecution was “silly.”

“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,” 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, including bite marks to Allen’s body. Allen and his attorney maintain Allen 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 refused to return multiple messages left for him. Allen’s attorney, James Gallen, did not return calls.

HIV Becomes the Feature of the Story

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 being infected with HIV 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 found:

We therefore conclude that HIV infected blood is a ‘harmful biological substance,’ as defined by Michigan statute, because it is a substance produced by a human organism that contains a virus that can spread or cause disease in humans.

The three judge panel was silent on whether the hepatitis infection weighed in as a factor as a harmful biological substance. 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, non-HIV specific 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.

But, even allowing for that case, experts say there are other factors to consider. In 2003, the most recent year available for statistics on the CDC website, about 1 million people in the United States were living with HIV/AIDS, putting the prevalence of HIV transmission via biting at .000000001 percent. In contrast, an online search of news reports finds hundreds of media reports of biting incidents involving HIV-positive people.

“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, she said, 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 [with HIV] to be kicked out of karate case.”

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. “I think it is a very dangerous thing for prosecution to proceed with a charge or an enhanced charge based on a person’s HIV status. Typically these prosecutions are based on ignorance about HIV transmission. 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.

“Its a very dangerous notion that somebody who has a physical condition such as H1N1 or HIV or some other virus, that, that person then can then be charged with having a harmful biological substance and then if they are out there in contact with other people and they are putting other people at risk it is troubling.” said Anderson. “That’s not something that is legitimately criminalized and these prosecutions start us in that direction in a very dangerous way, I think.”

Anderson said to her knowledge this is the first time she has seen a terrorism law used in connection with an HIV-infected persons prosecution. 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.

“What seems new is there seems to be a sudden uptick in the number of these type of cases in the last year or so,” Anderson said.

HIV activist Mark Peterson, from Michigan POZ Action said he is also concerned about this case. In an email statement to Michigan Messenger, Peterson said:
“This sort of conflict is sad anytime it happens. 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…Its interesting to see how the impact of stigma and homophobia that still surrounds HIV shows up in our legal system.”

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, said in an interview 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.

“I don’t think our legal system should treat everyone that has a disease that could be communicated to some one else differently,” Clarke said.

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 someone 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.”