US: Media, police, judge conspire in ‘hate crime’ against gay HIV-positive man in biting case

I am so mad I could spit and bite! I’ve seen a lot of bad reporting and bad legal decisions during my time blogging, but never before have I seen the media conspire with the criminal justice system in such a calculated, prejudiced, stigmatising, and ultimately harmful way.

A gay man from a small city in Michigan who has been harrassed and beaten up by neighbours for years, has been charged with “assault with intent to maim, assault with intent to commit great bodily harm and possession or use of a harmful device” after the latest assault resulted in biting his neighbour the lip whilst he was defending himself.

The story first appeared on October 30th in the Detroit News.

Although police allege [the accused] was the lone attacker — biting neighbor Winfred Fernandis Jr., 28, on the lip following the Oct. 18 confrontation — [the acccused] says he’s long been the target of bigotry on his street, and Fernandis, along with several of Fernandis’ family members, took turns beating him.

“I have no memory of biting him,” said [the accused], who is due in 41-B District Court for a preliminary hearing Monday. He divulged his HIV status after questioning from the media. “This person has been threatening me for years. The hatred needs to stop.”

“He divulged his HIV status after questioning from the media.”

How did that happen? Well, Fox News did some ‘investigating’ and discovered he was HIV-positive. They asked him to confirm it on camera – he did. They then told the bitten neighbour on camera. That’s when it got ugly.

Here’s the Fox News report.

Since HIV is involved, Clinton Township District Court Judge Linda Davis said during a preliminary hearing on November 2nd that just knowing he was HIV-positive and biting the neighbour is enough to sustain these very serious charges, reports a second story in the Detroit News.

“He knew he was HIV-positive, and he bit the guy,” Davis said. “That on its own shows intent.”

No it doesn’t, Judge Davis, because saliva from a bite does not expose someone to HIV. Now she is implicated, along with the police and the complainant (and his wife), in a hate crime.

“I am still maintaining my client is the victim of a hate crime,” [the man’s attorney, James L. Galen Jr.] said. “He will be exonerated. This is the very first battle in what I think is going to be a long war.”

A pretrial and arraignment will take place on November 16th.

US: Arkansas man accused of HIV exposure not HIV-positive despite confession

A 41 year-old man in El Dorado, Arkansas, appears to have admitted under police questioning that he was HIV-positive after being arrrested in September for allegedly having unprotected without disclosing his HIV status.

However, a brief report from the police log of the El Dorado News-Times notes that the man was, in fact, HIV-negative, something he’d maintained during his arrest.

One can only wonder what went on during his time being questioned by police that could have made this man confess to something that wasn’t true, and why he was arrested in the first place.

Charges will not be filed against an El Dorado man who was arrested on Sept. 17 for knowingly/willfully exposing another person to HIV. Police said an investigation determined that [name of accused] 41, does not have HIV. According to an affidavit for warrant of arrest, [he] initially told officers he was not HIV-infected, but upon further questioning, he said he had the virus. Police said testing and a review of [his] medical records led to the charge being dropped.

US: Miami man gets 15 years in prison for biting cop

A 35 year-old man with mental health issues, and characterised as a “drifter”, has been sentenced to 15 years in prison “for threatening to kill with his illness then biting a Miami cop.”

If this case doesn’t exemplify HIV-related ignorance and stigma amongst law enforcement and the judiciary, I don’t know what does.

According to the report from the Miami Herald, Johnson Jamerson

a former furniture delivery man who suffers from schizophrenia, was arrested in January 2008 for trespassing after he was found sleeping under the Interstate 395 bridge at North Miami Avenue. On a police bus later, Jamerson slipped out of his handcuffs. [Officer Matthew] Hall grappled with him. Wile struggling on the ground, Jamerson yelled out that he had HIV, the virus that causes AIDS, threatened to kill Hall and then sank his teeth into the officer’s right shin…He bit through Hall’s pants, drew blood and caused a permanent bruise.

Originally charged with attempted murder, a jury found him guilty of the lesser charge of aggravated battery on a law enforcement officer in June.

Circuit Judge Daryl E. Trawick was told by Miami-Dade prosecutor Ankur Sevak that although Officer Hall was not infected,

doctors did not clear him for eight anxious months. “He could not have any contact with his wife or children for fear he could severely affect them.”

Obviously, the cop experienced a tremendous (and unnecessary – as you will see below) amout of mental and emotional suffering, reflected in the sentence, but how much of this suffering is Mr Jamerson’s fault?

As I have written in a previous blog post about the police overreacting to the risk of HIV transmission from a bite, the risk of transmission is so low that PEP is not really warranted – and it certainly has never been proven to reduce the risk of transmission in such cases. The fact that the cop was worried enough to take PEP is not Mr Jamerson’s fault.

In addition it should not have taken eight months from the incident for the cop to have been considered to be definitely HIV-negative – a viral load test (PCR testing) could have figured that out within a few weeks. Again, that is not Mr Jamerson’s fault.

And as for the cop not having “any contact” with his wife or children – surely he was counselled that he could not transmit HIV casually. But then, if he believes he can get HIV from a bite, I guess he probably thinks he could pass it on via sharing cutlery or a toilet seat, just like 5% and 4% respectively of the UK public surveyed in 2004.

Once again, that is not Mr Jamerson’s fault.

Then again, it seems Miami police doctors appear to give PEP for three-times longer than any study has ever found it to be necessary.

“For three months afterward, I had to take a cocktail of medication three times a day, causing diarrhea, vomiting, nausea — everything you can think of,” Hall, a Coconut Grove patrolman, said after the sentencing.

What is strange is that, if he is telling the truth about his experience of PEP, he appeared to be following guidelines to take drugs that are way out-of-date: no HIV regimen needs to be taken three times day.

However, it seems that the US Centers for Disease Control’s PEP guidelines were last updated in 2005 and the currently recommended PEP regimen for basic 2-drug PEP is Combivir (AZT and 3TC in a single pill, taken twice a day) for 28 days.

Amazingly, the guidelines still include an option to take the drugs separately, and for AZT to be given three times a day. This is ridiculous and totally unnecessary. So, perhaps I can’t blame it all on the ignorance of the police and judiciary: the CDC need to update their PEP guidelines to prevent unncessary suffering. And by unnecessary suffering, I’m talking about Mr Jamerson as well as Officer Hall.

Ireland, UK, US: Spitting and biting cases highlight police ignorance

Whether its Fort Mill, South Carolina; Jacksonville, Florida; Rutland, Vermont; or Wimbledon in the UK, the police and media have been over-estimating the risk of HIV transmission from biting or spitting over the past two weeks with devastating consequences for all concerned.

South Carolina: Where biting is attempted murder
In Fort Mill, a man who bit his neighbour in a fight had his charges upgraded from simple assault to assault and battery with attempt to kill once police learned of the man’s HIV status, according to a report in The Herald.

Assault and battery with intent to kill is a felony that carries a prison sentence of up to 20 years upon conviction, Fort Mill Police Capt. Bryan Zachary said. “Upon review of the facts of the case,” Zachary said, the solicitor’s office “confirmed because of the malicious intent involved that the charge of assault and battery with intent to kill was warranted.

And yet, according to local TV station WSOC the bite did not break the skin.

London: Policeman’s unnecessary agony
There may be no attempted murder charges for biting under English law, but in Wimbledon, according to This is Local London, “a policeman bitten by an HIV-positive drug addict [during his arrest] faces an anxious wait to see whether he has contracted the virus.”

And during his wait he will, according to the report, “need at least seven months of anti-viral medication.” Yet Post Exposure Prophylaxis for HIV exposure lasts just 28 days and is not actually warranted for a bite.

Vermont: Where post-spit anxiety lasts a year
A policeman in Rutland faces totally unnecessary anxiety after being spit on by an HIV-positive man who had been trying to commit suicide.

The Times Argus reports:

A man diagnosed with the virus that causes AIDS is charged with a felony for spitting into the face of a Rutland police officer who must now undergo a year’s worth of testing to discover whether he was infected with HIV. […]

It was while doctors in the emergency room were treating [the man] that he allegedly cocked his head back and spit into the face, eyes and mouth of city police Sgt. David Schauwecker, who was trying to control [his] head, according to the affidavit. [The man], who was arrested more than a week later after his release from the hospital, has no prior criminal record.

But the charge he faces now is tantamount to a life-threatening assault, according to Rutland County Deputy State’s Attorney Kathryn Smith. “The nature of this offense is extremely concerning,” Smith said. “He knows he has a deadly disease and yet he exposed another human being to that disease. … This case before us is an actual act of violence.”

“Everything in my life is basically put on hold for a year,” said Schauwecker, who will be tested every three months to look for signs of HIV. “I went there that night trying to save someone and now I’m looking at a life sentence.”

Today, the Rutland Herald ran a letter from AIDS NGO, Vermont Cares, entitled ‘Clearing up HIV myths’. They wrote:

Enforcing the myth that HIV is spread through saliva… protects the health of no one. In fact, unfounded fears about HIV transmission and misunderstanding of risk can endanger people with HIV.

To be clear, the U.S. Centers for Disease Control and Prevention offers no demonstrated cases of saliva ever transmitting HIV. Transmittable HIV is present in four bodily fluids only: blood, semen, vaginal fluids, and breast milk.

Having someone spit in your eye or mouth is definitely frightening and may transmit other pathogens from influenza to tuberculosis. However, HIV is a highly unlikely risk in this instance.

Enforcing fear and misinformation about HIV, and promoting the belief that HIV testing is a variable enough science to postpone relationships and life, would be a terrible consequence of this incident. HIV testing, by CDC recommendations, is nearly 100 percent accurate at six or even three months.

Florida: Where attempted spitting is now a felony
In late July, Jacksonville police charged a 29 year-old HIV-positive man with aggravated assault with intent to commit a felony after he attempted to spit on a police officer following his arrest for shoplifting.

The arresting officer said that on the drive to jail, [the man] started coughing and trying to spit on the officer from the back seat of the patrol car in an “effort to transmit his HIV disease.” The officer had to put a “spit mask” on [the man]’s face before taking him to jail.

The short piece on firstcoastnews.com included the man’s name and photo. There are now seven pages of readers comments that range from the homo- and trans-phobic to pure HIV hatred. One reader even found and published the man’s previous (minor) criminal record. I genuinely fear for the man’s safety in- or out of jail.

Ireland: Judge concerned about police’s lack of education of HIV transmission risks of biting and spitting
The Irish Times reports that a High Court Judge, Ms Justice Mary Irvine, recently brought in a medical expert to testify over the risk faced by police of occupational exposure to HIV and other blood-borne diseases “as a result of the high number of Garda [Irish police] compensation claims involving fear of transmission of such diseases coming before the court.”

The judge awarded a policeman €8000 compensation after hearing testimony that “he had been “petrified” and suffered nightmares and sleeplessness after having been bitten during the arrest of a known drug user”.

Colm Bergin, a consultant in infectious diseases, told the court that in 10 years’ practice he had never come across a case of transmission of HIV or Hepatitis C through saliva.

The court also heard that:

the risk of contracting HIV or Hepatitis C from saliva can be as low as one in 100,000; and
that transmission of such diseases through contact with blood was also negligible.

[The judge] had expressed concern as to how well [police] were educated about risks to members contracting saliva and blood transmitted diseases through bites, spittle or needle stick injuries. “Such attacks are happening on a daily basis and there are huge numbers of compensation cases coming before the court,” the judge said. She has asked for reports on the risks involved and what is being done to reassure [police] injured in assaults as to the low level of risk.

Canada: Alberta judge, police believe that spitting transmits HIV

An Edmonton, Alberta man who claimed he was HIV-positive and then spat in the eye of a police officer has been sent to prison for five months for assaulting a peace officer, with the policeman’s fear of infection being an aggravating factor in sentencing. The man was later (mandatorily?) tested and found not to be HIV-positive.

According to the Edmonton Sun, Judge Michael Stevens-Guille requires some HIV transmission training like his Ontario counterpart Jon-Jo Douglas.

“Spitting is disgusting,” said Judge Michael Stevens-Guille, pointing out that, years ago, expectorating on someone was not considered to be worse than punching the person in the nose. However, as a result of the dangers of transmitting communicable diseases, it is now considered far more dangerous and there is a need to protect people like the police from such perils, said Stevens-Guille. The judge also noted it was aggravating that the police officer involved was “very frightened’ by the potential he might have contracted the HIV virus and had to go through the worry of waiting for blood test results.

I agree with Judge Stevens-Guille on just one point: spitting is disgusting. However, although being spat upon is unpleasant, and may be a symbolic assault, it is not a way to transmit HIV.

Read this fascinating blog entry from Sally’s Trove on what can be transmitted by spitting, and the history and legacy of US spitting laws.

US: New HIV as a ‘deadly weapon’ case in North Carolina (updated)

Another US jurisdiction has classified a person living with HIV as a walking deadly weapon. North Carolina police yesterday charged a 45 year-old HIV-positive man with “assault inflicting serious bodily injury and assault with a deadly weapon” after he resisted arrest in Durham.

According to a brief report in The News & Observer, the police report says that the man

knowing he is HIV-positive, twice tried to expose the officer to his blood, once by cutting the officer’s thumb and also by head-butting him and biting his ear.

This prompted one local citizen to write in the comments section

This was a vicious act. If the officer had escalated the continuum of force level to shooting and killing this person he wwould [sic] have been justified. We don’t know how this individual acquired HIV and that doesn’t matter in that a decent human being would not knowingly have exposed another to the disease.

Another wrote

This event should lead to a charge of attempted murder because that is what it is. This act by this infected man is willful and intentional. May God be with the officer and find him or her free and clear of this dreadful disease.

The man, who was also charged with “injury to real property and unauthorized use of a motor vehicle,” will appear in court on June 29th.

Update: June 23rd

The man actually appeared in court yesterday. The hearing was filmed by local TV station, News14.

It is now patently clear to me, from the details revealed, that the risk of HIV transmission from the acccused to the police officers was so slim as to be negligable.The facts are that he cut a police officer’s right thumb while he was bleeding (interestingly, it doesn’t say how he got to be bleeding) while that officer was trying to arrest him (and it doesn’t say that he intentionally did so). He also didn’t actually bite the other policeman’s ear, but only “tried to bite that officer’s ear”.

And yet, Judge William Marsh III tells the court

“If Mr. Perry is engaged in the behaviour described, knowing that he has a potentially fatal condition with the ability to infect others, I consider that a serious offence, and could very well have potential to be increased to something more serious.”

This still suggests that when someone who is HIV-positive resists arrest, they can be seen as being ‘deadly weapons’ in the absence of any real possibility of transmitting the virus. This surely is a prime example of HIV-related discrimination based on ignorance and stigma.

Canada: Hamilton woman pleads guilty to HIV exposure

A 28 year-old woman from the same Ontario town as Johnson Aziga yesterday pleaded guilty of one count of aggravated sexual assault for not disclosing her HIV status to a man she met for a one-night stand in 2007. She will be sentenced in August.

The case was reported today in The Toronto Star and highlights the real problems HIV-positive Canadians are facing due to the current oppressive, discriminatory – and ultimately harmful – legal obligation to disclose before sex. When the woman was arrested in March 2007, police held a press conference saying the woman posed “huge threat”. According to the CBC website on the day of the press conference:

Det. Joseph De Lottinville called [the woman] “a huge threat” to public safety, amid police fears that she deliberately slept [my italics] with a number of people without revealing that she had HIV, the virus that causes AIDS.

Police allege that [she] has known of her HIV status since March 2003, but didn’t follow the legal requirement that people with HIV disclose the condition to sexual partners.

Officers said [she] is believed to have frequented several bars in the Greater Toronto Area, specifically in Hamilton, Brantford and Toronto, particularly in its downtown Entertainment District.

More than 10 men who allegedly had sexual contact with her are being interviewed by police.

This is phrased slightly differently on CityNews.ca, published the same day:

The 26-year-old from Hamilton was arrested on Sunday and police are alerting the public of her case. They allege she deliberately withheld [my italics] her important health information in order to have sex with men she met in bars in and around the GTA.

Detectives say [the woman] frequented bars in Hamilton, Brantford and Toronto on a regular basis and had sex with men she met at those establishments. She was diagnosed with HIV four years ago.

[She] deliberately failed to tell [my italics] one Toronto man about her HIV-status, according to police, and allegedly did the same to other men in order to have sex with them, often unprotected. Authorities are urging anyone who’s had sex with her to seek medical attention immediately.

“From what we’ve learned, she will disclose it sometimes and she won’t disclose it on other times,” Det. Joseph De Lottenville said Thursday.

The use of ‘deliberate’ in these different ways is really interesting. The first allegation that she “deliberately slept with a number of people without revealing that she had HIV” suggests that she intended to infect these men. However the second allegations, that she “deliberately failed to tell” one man that she had a one-night stand with that she was HIV-positive, is purely about nondisclosure. The knee-jerk reaction of the police was to create the myth of a female ‘HIV predator’ when the reality was that she and another man agreed to have (or probably did not even discuss) unprotected sex, putting themselves equally at risk – she of infecting another to HIV, he of becoming infected with HIV. I assume the man had the capacity to protect himself. Did he really need to be specifically warned about the risks? Why, then, is he is not held responsible for putting himself at risk?

And so, even after police released the woman’s name and photo for their ‘fishing expedition’, and even after interviewing more than ten of her other past sexual partners, she was still only charged with one count of aggravated sexual assault for nondisclosure. How then was this woman “a huge threat”? Aren’t the ten or more men who slept with her without using condoms who will have gone on to sleep with others, much more of a threat?

Canada: Another attempted murder charge for HIV nondisclosure; rally planned in Ottawa

A 46 year-old bisexual Toronto man has become the second man in Canada to be charged with attempted murder following allegations that he did not disclose his HIV status before having unprotected sex.

According to a Toronto Police Service news release quoted on Xtra.ca

“the accused had unprotected sexual intercourse on multiple occasions after being informed that he was HIV-positive in March 2009” and that although the charges stem from sex the accused had with a woman “his partners may have been in both the gay and heterosexual communities.”

The Montreal Gazette quotes Constable Wendy Drummond, who provides an emotive, rather than legal, reason for the attempted murder charges.

“We’re dealing with somebody’s health. This could ultimately lead to somebody’s demise, to their death.”

The man actually faces one count each of attempted murder, aggravated sexual assault, assault causing bodily harm and assault with a weapon – all of the charges are based on him not telling his female partner that he had recently tested HIV-positive and continuing to have unprotected sex with her.

As has become common practice amongst Canadian investigations, police have released a photo of the man, claiming public health interests. However, it is obviously a fishing expedition for more complainants (the more complainants, the more likely charges will stick).

CityNews.ca interprets this as follows:

Police allege that [the accused] is a menace to society. And even though they now have him in custody, they’re not sure everyone who had contact with him is still safe.

The 46-year-old (top left) is accused of having unprotected sex, despite knowing that he’d been diagnosed with HIV last March. As a result, authorities have charged him with attempted murder, aggravated sexual assault, assault causing bodily harm and assault with a weapon.

Cops know of at least one person who had sexual contact with him without knowing his status. But they say [he] was known to hang around in Toronto’s gay and straight communities, and they’re worried he may have had similar relationships with people who may not be aware of his past.

If he’s crossed your path, seek medical treatment as soon as possible, and contact police at (416) xxx-xxxx or Crime Stoppers at (416) xxx-xxxx.

Interestingly, however, the Montreal Gazette story doesn’t buy it. Although they quote Constable Drummond…

“We make their names and images known to the public out of concern that they may have had relations with other people, and may have infected other people.”

…they also include the counterpoint of Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network.

“Police say they’re public safety notices,” he said. “But it’s a police tactic. They’re using the releases as an investigative tool, to build a case against the accused.”

What’s worse, he said, is that actions like this feed into the “very persistent stigma related to HIV and people with it. It creates this image of a person with HIV as a public-health menace. This just perpetuates the misinformation, fear, hysteria and prejudice that has always surrounded HIV.”

Exactly.

RALLY IN OTTAWA, CANADA

In response to this, and other draconian measures taken by police and prosecutors against HIV-positve individuals, a grassroots collision of concerned community groups and individuals in Ottawa, fuelled by anger, and inspired by hope, have come together to condemn the criminalization of HIV. They will be rallying in Canada’s capital, Ottawa, next Wednesday June 10th 2009, between 12:30pm – 1:30pm, meeting at Parliament Hill in front of the eternal flame.

For more information visit their the Facebook event page: Stop The Criminalization of HIV Positive People!

Canada: Gay man charged with attempted murder for HIV non-disclosure

In an escalation of the usual charges facing people in Canada for allegedly not disclosing their HIV status before unprotected sex, a 28 year-old Toronto man is now facing attempted murder as well as aggravated assault charges.

How do we know this? Because the Toronto police held a press conference, making it appear as if the man was some kind of serial killer. Xtra.ca reports:

“We have reason to believe he attended Church and Wellesley and may have actually engaged in sexual activities without disclosing his HIV status,” said Const Brad Stapleton of the Toronto Sex Crimes Unit at a May 7 press conference.

There appears to be no evidence of this, but according to the Globe and Mail:

“We are appealing to the gay, lesbian, bisexual and transgender community. If you had any contact with this male, contact the Toronto sex crime unit,” Constable Stapleton said.

A more obvious fishing expedition is hard to imagine (it was issued under the smokescreen of a ‘public safety alert’). There’s scant information from any of the Toronto papers that ran stories, most of which published the man’s name and photo. The most detailed is from the aforementioned G&M:

Police laid charges after the alleged victim, who is said to have met [the man] on an Internet dating service, came forward. Police believe [he] has had sexual relations with additional people in which he did not disclose his status. Constable Stapleton said [the man] has known he was HIV positive since 2000 and has been a regular in the Church and Wellesley area for the past five years…He wouldn’t elaborate on the charges or say whether the alleged victim contracted HIV from [the accused man].

The man is due in court in Toronto for a bail hearing tomorrow.

US: Missouri man charged after ‘HIV threats’ during arrest

An HIV-positive Missouri man has been charged with “two counts of reckless exposure to HIV” because he “scuffled” with two police officers who were trying to arrest him and shouted at them that he was HIV-positive and “hoped they would catch the virus and die.”

The report, from The Columbia Daily Tribune, takes the (non-existent) HIV transmission risk seriously probably because the policeman did.

“This is something we deal with,” [a cop] said. “It is not something that happens every day, thankfully. It’s one of those things that we’re aware of” as a risk.

[The man] was eventually subdued and taken to a local hospital for treatment of injuries. The deputies also went to the hospital to begin treatment to minimize the possible risk of infection.

Unfortunately for the man, Missouri has pretty wide-ranging HIV exposure laws, which state:
“It is also unlawful for a person knowingly infected with HIV to act in a reckless manner by exposing another person to HIV without the knowledge and consent of that person…[by] purposely doing anything else which causes the HIV infected person’s semen, vaginal secretions, or blood to come into contact with the mucous membranes or nonintact skin of another person.”

It doesn’t say anything about empty threats, though. This sounds like a repeat of 2008’s Willie Campbell debacle.