Canadian HIV+ Man Accused of 'Attempted Murder' for Having Sex

In another episode of a HIV+ individual being targeted with criminal charges for having sex, a Canadian man faces a rap for attempted murder and exposing another individual to a "noxious substance," the substance in question being HIV, the virus that causes AIDS, GLBT site Queerty reported on July 6.

According to the Queerty report, an 18-year-old sexual partner of HIV+ Steven Paul Boone told the police that he had been diagnosed with an unspecified sexually communicated disease following sexual contact with Boone. When Canadian authorities asked for other sexual partners to come forward, four additional counts of attempted murder against him resulted.

Boone's photo was released by Ottawa police following the accusations made by the unnamed 18-year-old. A May 7 CBC story said that Canada's laws define exposing others to HIV as a form of "aggravated sexual assault." The article did not say that Boone deliberately exposed others, but a June 29 Ottawa Citizen article reported that Boone and the 18-year-old had engaged in unprotected sex several times.

But a press release from the Ottawa police indicated that Boone had "knowingly failed to disclose details to the victim regarding his infectious medical condition," and said that Boone had found numerous sexual partners online.

The issue of HIV+ individuals facing criminal charges is a contentious one. On the one hand, people with HIV have on occasion deliberately sought to infect others. In other instances, however, HIV+ individuals have faced assault charges in cases where HIV- people would not have been similarly charged, such as cases in which HIV+ people faced charges for spitting.

Just such charges were brought against Denver resident William O'Kelly, who faced charges of attempted second degree assault stemming from an incident in which O'Kelly allegedly spat on a technician dispatched to his home to install court-ordered equipment following O'Kelly's conviction for drunk driving, according to a June 9 story in local newspaper the Colorado Independent. Critics of laws that treat the saliva of HIV-positive persons as a "deadly weapon" say that there is no scientific rationale for such a classification, since HIV is not transmitted via saliva. Critics of such cases have suggested that prejudice drives such laws.

The original 1990 version of the Ryan White CARE Act, which provides funding for care of individuals living with HIV / AIDS, mandated that states receiving such federal funds have laws on the books "adequate to prosecute any HIV infected individual" who deliberately attempted to transmit the virus to others. In 2000, that language was dropped, according to a fact sheet from the University of California San Francisco.

Though all 50 states do have such laws, in some cases, critics allege, the laws go too far. At least two states--Pennsylvania and Louisiana--penalize HIV+ individuals for biting or even spitting at others.

In some instances, a person's HIV-positive status can leave that person liable to additional charges of "assault with a deadly weapon," the so-called weapon being HIV. In one case, a HIV-positive man named Phillipe Padieu was charged last year in McKenney, Texas on six counts of aggravated sexual assault with a deadly weapon after having sex with half a dozen women; Padieu was found guilty and sentenced to a cumulative total of 250 years. And in Gatesville, David Castillo, the DA for Coryell County, says that he will try a suspect believed to be HIV positive on similar charges after the suspect allegedly sexually assaulted a 16-year-old boy. "You can fire a gun at someone and miss, and it's still aggravated assault with a deadly weapon," Castillo told the press, explaining that he would issue the charges even if the alleged victim tested HIV negative.

But advocates for people living with HIV disagree about the application of the law in these cases. "HIV should not be an aggravating factor unless there's some evidence that he intended to do some harm and did some harm," said the executive director of the Center for HIV Law and Policy, Catherine Hanssens, the article reported. "Criminal law in every state is adequate to deal with it," added Hanssens. "But to treat it as evidence of guilt and a deadly weapon wasn't appropriate in 1985, and it isn't appropriate now. To refer to HIV as a deadly weapon in 2010 speaks of just unforgivable ignorance."

Worldwide, the question of whether sexually active people with HIV should be face criminal charges if they knowingly expose others to the disease has been thorny. In Uganda, a proposed bill to punish gays with life imprisonment or worse stipulates that the penalty will be capital punishment for HIV-positive men who have sex with other men. In New Zealand, an Auckland man was charged with having sex with a number of partners after being diagnosed as HIV-positive; half of his sexual partners reportedly tested positive after their encounters. The suspect killed himself in his jail cell last May.

In O'Kelly's case, the charges stem from an altercation with a technician who had come to O'Kelly's home to install a court-ordered monitoring system following a drunk-driving incident. When O'Kelly objected to the amount of money he was being charged for the system, the technician replied that he would report O'Kelly to the probation officer, the Independent story said. O'Kelly then spat in the technician's face. The technician learned of O'Kelly's HIV status and pressed charges.

But the very issue of such charges being applied due to a person's HIV status, in the absence of scientific justification, is uncertain. The charge itself makes a medical leap in stating that O'Kelly's saliva was "infected," with the charge being that O'Kelly "unlawfully and feloniously attempted to cause bodily injury... by means of a deadly weapon, namely, infected saliva." Under Colorado law, the article notes, intent determines what a weapon is, and whether it is a "deadly" weapon. Arguably, if O'Kelly believed his saliva could transmit HIV, he might be criminally liable for spitting on another person.

Kimbrough noted to the press that state law applies to other instances in which disease is a factor, such as HIV-positive prostitutes, or laws that deal with a suspect's health status with regard to "tuberculosis, Hepatitis C, those kinds of things."

The article noted that, according to a June 3 article in the Michigan Messenger, a HIV-positive man in that state faced charges under Michigan's bio-terrorism laws because he bit another person. That case was thrown out of court, with the judge, Peter Maceroni, writing that, "the mere fact that defendant was HIV positive when he allegedly bit the complaining witness is insufficient to meet the elements of [the law]. There is no evidence that demonstrates defendant manufactured or possessed a harmful biological substance, i.e. HIV infected blood, with the intent to frighten, terrorize, intimidate, threaten, harass, injure or kill any person, i.e. for an unlawful purpose."

Continued Maceroni, "The fact the defendant is HIV positive, alone, cannot demonstrate he manufactured or possessed HIV infected blood for an unlawful purpose. In addition, defendant's alleged action of biting the complaining witness, without the presence of blood, is not a documented manner in which HIV can be transmitted."

"I think somebody was trying to be creative or reach way too far outside the box," the ACLU Michigan's Jay Kaplan told the press. "The unfortunate thing is that it gives credence to the misperception that HIV can be spread through saliva."