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Criminal Intent

Almost three weeks from now in Olympia, on Tuesday, Dec. 21, Anthony Whitfield, 32, will be sentenced on 17 counts of first-degree assault, the most for anyone in recent state history. His crime: having unprotected sex with 17 different women while knowing he was HIV-positive. Whitfield, an unemployed methamphetamine addict, spent the last several years bouncing around among girlfriends, marrying one, having children with two others, maintaining multiple "long-term" relationships, and having a slew of shorter ones. Though he was informed he was HIV-positive in 1992, he never told his partners, in some instances outright lied about his condition, and often refused to wear condoms. Five of the women have since tested positive for HIV, and one has AIDS. After a two-week trial before a Thurston County judge last month, Whitfield was found guilty on all assault counts.

The case received some crime-of-the-day coverage on local TV news, but was mostly ignored in Seattle and elsewhere. That's surprising, since, based on Seattle Weekly research, no one in America has been charged, let alone convicted, of exposing so many people to the virus. And yet the Whitfield story may be worthy of attention less for the ways it's extreme than for the ways that it's typical. The case raises a number of questions about how HIV "crimes" are being prosecuted generally in the U.S. and how criminal enforcement can or should be used to help contain the AIDS epidemic. Consider the following:

*Whitfield is only the third person prosecuted for this crime in Washington since 1997, when legislators and Gov. Gary Locke made deliberate exposure of HIV a Class A felony, like murder and rape. As with Whitfield, the two previous defendants lived outside the urban centers (in Wenatchee and Skagit County, respectively) and their victims were women. Yet the vast majority of our state's HIV transmissions occur in and around Seattle among men who have sex with other men. No one on Capitol Hill has been going to jail, even though a new infection is happening in our city about every day, according to Seattle- King County public health department estimates. The pattern is seen nationally as well: HIV prosecutions are almost exclusively directed at men victimizing women and occur mainly outside the major cities where HIV is most concentrated. "The demographics of the prosecutions do not match the demographics of the epidemic," observes Jonathan Givner, an attorney with the gay advocacy group Lamda Legal in New York.

*Because of a focus on heterosexual encounters, HIV law has become yet another criminal arena where minorities are targeted out of proportion to their numbers. Heterosexual transmission is much more common among African Americans than whites, and while there likely are many reasons for this, one is clearly the sky-high rates at which black men are being sent to prison. Prisons are hothouses for HIV and a common place for black men to be infected with the virus. According to trial testimony, Whitfield was infected during a prison rape while serving time in the early 1990s. Once he got out, his meth-fueled "player" lifestyle was not just brazen but criminally dangerous; HIV has become one more stop on the cycle of incarceration. According to Seattle Weekly research, about half the defendants in recent HIV prosecutions across the country were black men. (Locally, it's two out of the three.)

*Given the scale of the epidemic and the fact that a majority of states, during the last decade, passed laws specifically criminalizing HIV exposure, there have been remarkably few prosecutions. Leaving aside cases of rape, prostitution, etc. (where the behavior was already criminal, regardless of the presence of HIV), Seattle Weekly found about a dozen prosecutions for HIV exposure per year in the U.S. since 2001, a tiny fraction compared to other sex crimes. The laws are "popular as a concept," says Leslie Wolf, a professor at the University of California-San Francisco who studies legal issues surrounding HIV/AIDS. "But after that, there's not much that people are pursuing. There is no state or federal policy on this, so it's kind of haphazard." Meanwhile, Dr. Bob Wood, the HIV/AIDS czar for Public Health-Seattle & King County, says that, based on the studies he's seen, roughly 20 percent of people who know they are HIV-infected are "hiding their status, not using condoms" at least some of the time. Some surveys have put that number as high as 75 percent.

*For those few perpetrators who are tried and convicted, punishment can be severe and generally has no connection to whether the victim actually contracts the virus. One 23-year-old HIV-positive man in Iowa City recently received a 25-year sentence for a few days of unprotected sex with a woman who has since tested negative. Washington law, too, prohibits "exposure," without regard to transmission. That makes it different from other crimes, where the outcome affects the penalty: A drunk driver who hits a pedestrian is subject to harsher punishment than someone who's just as dangerously intoxicated but makes it home without incident.

In short, there are many questions to be asked about the fairness of HIV prosecutions – about how the law is applied and against whom – as well as how well these prosecutions are serving the goals of justice and public health for which they're supposedly intended.

Too Many Hot Buttons

It was May of last year when health officials in Thurston County first got wind of Anthony Whitfield, after a cluster of women tested positive for HIV and mentioned him as a recent sex partner. Whitfield was tested again around that time, too, and on Aug. 1, a Thurston County health officer notified him of his infection and "counseled him" on the necessity of using protection, according to court records. One of Whitfield's girlfriends claims he had unprotected sex with her that very night: "I know because he always came over and had sex with me on the first [of the month]," she said. (As victims of a sex crime, the women in the case have not been publicly named; they were identified in court papers by initials only.)

Whitfield was supposed to remain in contact with the local health authorities and report his sex partners, but instead he disappeared, apparently to his native state of Oklahoma. In the meantime, health department officials learned of two more women who had contracted AIDS, both of whom listed Whitfield as a possible source of their infection. One of them claimed Whitfield was her first and only sex partner. (The second did not end up testifying in the case.)

By March of this year, health officials had located Whitfield again in the Olympia area and took the next enforcement step, issuing a cease-and-desist order that required him to inform sex partners of his condition and to use protection. Whitfield signed the order and, at the same time, offered the names of two more women he was sleeping with. Both women were located and tested; one said she'd had unprotected sex with Whitfield on March 14 – two days after he'd signed the order.

At that point, the case was shifted to law enforcement. In late March, police went to Whitfield's home in Lacey, where he was loading his belongings into a U-Haul truck, and arrested him.

Health departments are not permitted to disclose the names of people who've been diagnosed with a sexually transmitted disease. When the health officer approached Whitfield's girlfriends, she could not use his name; she could only say she had reason to believe they might have been exposed to the virus and suggest that the women get tested. Nor was there any way to find out Whitfield's other partners, except by asking him. Once Whitfield was in custody and criminally charged, however, those rules no longer applied. The Thurston County prosecutor issued a news release asking women who'd slept with Whitfield to come forward for confidential testing; health officials received close to 40 calls from "primary contacts" of the defendant. Ultimately, prosecutors found 17 victims to testify against him at trial.

Five of the women tested positive for HIV, but there was little rhyme or reason to the distribution of misfortune. "Some who had hundreds of incidents of unprotected sex, including anal sex, they're negative," says Thurston County deputy prosecutor Jodilyn Erikson-Muldrew. "Another woman who had protected sex all but twice, she's positive."

It's for precisely this reason that Mark Kleiman, a professor of policy studies at UCLA, believes that HIV exposure law is right to disregard actual infection – unlike, say, the distinction in homicide law between attempt and success. "You could argue that if a shooter misses, perhaps he didn't have as strong an intent to kill. But in this case, whether or not transmission occurs is mostly a random fact and doesn't say much about culpability. The wrongful act is pretty much exhausted when he gets out of bed, and whether she gets sick is a different question."

Whitfield's public defender, Charles Lane, fearing that the case had "too many emotional hot buttons" (i.e., as he put it, "a black man spreading AIDS to a bunch of white women"), and facing a plea offer from prosecutors that he called "not realistic," opted for a trial before a judge instead of a jury. But that proved to be no help.

The judge rejected Lane's attempt to defend his client based on "consent" of the women. "Every one of them knew that he slept around," Lane argued. "They had the ability to protect themselves and they didn't. Everyone in this day and age knows you shouldn't have unprotected sex because you don't know what the other person is going to have. In that sense they're consenting to what they might get because they're a willing participant." But the judge found that consent could be a defense only if Whitfield had, in fact, informed them of his condition. The women's general knowledge of the risks of unprotected sex "was not relevant," argued Erikson-Muldrew, who won that day.

Anticipating a jury trial, Thurston County paid for some genetic research to determine if the virus infecting Whitfield matched the one present in his victims. But the research was never completed and never introduced at trial. As the judge well knew, prosecutors were not obliged to prove that Whitfield had infected anyone. They only had to show that he knew he was HIV- positive, had engaged in unprotected sex without telling his partners, and had done so "with intent to inflict great bodily harm" – a requirement for first-degree assault.

The last point was always going to be the crux of the trial. Whitfield's girlfriends mostly described him as a caring man who made them feel "special." Several of them remained loyal to him and testified only because they were forced to by the prosecutor's subpoena. But Whitfield was done in by a remark he made to friends, on two separate occasions, seemingly in jest: "If I had AIDS, I'd give it to everyone I could." The statement, recalled by several witnesses, was enough – alongside Whitfield's callous behavior – to convince the judge that the defendant had intended to inflict "great bodily harm" on every one of the 17 women. Whitfield now faces a sentence of between 130 and 190 years. Lane says that the conviction will be appealed.

Good For Our Health?

"I don't think this is the way to do public health," admits Thurston County health officer Dr. Diana Yu. Indeed, public health officials are wary of any interaction with law enforcement because their work depends on a safe and confidential atmosphere for patients. "The majority of people we counsel want to be responsible and avoid making other people sick," she says. But in this case, she says, "It was not logical" to think that further entreaties were going to have much effect on Whitfield.

I asked Dr. Wood, the Seattle-King County HIV/AIDS expert, whether he thought Whitfield's prosecution would have a positive or negative effect on the overall effort to stem the spread of HIV. He said, "It's clear to me that a bunch of people who were infected discovered they were. That's good." But he added: "I do worry that another person who's using meth and having lots of partners might never come in to be tested or treated because they heard about this. I can't say what we [in King County] would have done if we'd had the same case."

African Americans are already less likely than whites to seek testing or early treatment for HIV, and some observers worry that cases like Whitfield's will exacerbate the situation. David Lee, who works on minority outreach at a Seattle HIV clinic and serves on Gov. Locke's Advisory Council on HIV/AIDS, notes that African Americans "have a distrust of the medical profession. The possibility of being prosecuted only makes things worse." He observes, as have many others, that the law creates a perverse incentive, at odds with the central public-health message regarding HIV: "Get tested." "Knowledge is what gets you into trouble," Lee points out. "If you don't know [you're infected], you can't be accused of anything."

Officials at the Centers for Disease Control believe roughly a quarter of those who are HIV-positive do not know they have the virus – which is one of the main factors driving the epidemic. And they may not want to know. Prosecutor Erikson-Muldrew observes, with some chagrin, that some of Whitfield's victims have failed to repeat their testing. (It can take up to six months for HIV antibodies to be detectable in the blood.)

That still leaves the question of how to deal with reckless and informed infection spreaders like Whitfield. His attorney argues that Thurston County officials should have continued following the civil steps that are prescribed by Washington code when someone appears to be a threat to public health. The law specifically allows the health department to hold such people in jail for 90 days, for instance, so they can be "educated" about the seriousness of their behavior.

But even professor Wolf of the University of California-San Francisco, who does not support aggressive prosecutorial action, nonetheless concedes, "You may not reach some people without the stick that criminal law provides." That certainly seems to have been the case with Whitfield, who, when asked by police what he had done with the cease-and-desist order he signed, replied that he had thrown it in the trash.

Gay Bingo

In Seattle, where the bulk of HIV cases involve gay men, Public Health has issued just seven cease-and-desist orders related to dangerous HIV behavior in the last 10 years, reports Dr. Wood. His agency has never had to take the next step of incarcerating someone or transferring the case to law enforcement because he never heard of those individuals again; he suspects the subjects "either get smart, leave town, or become more clandestine." He can't recall coming across anyone in the Seattle area like Whitfield, who appeared to be the source for multiple HIV infections.

But that may speak more to the difficulty in tracing the labyrinthine paths of gay sex than it does to the actual existence of such perpetrators. As Wood points out, some gay men have so much anonymous sex that it's nearly impossible to track down any particular source of infection. "They don't even know the name [of their partners], let alone the address," he says. "Very few places in the country are able to get very far with gay male contacts." Since months or even years may pass before a person learns of their infection – during which time a gay man may have dozens or hundreds of sex partners – it becomes highly unlikely that they will know who infected them, let alone have any grounds for complaint.

The privacy rules and protections that govern HIV also make it hard to uncover who might be exposing whom. Wood notes that 70 percent of the gay men who get tested at King County clinics do so anonymously. They are only identified by name once they seek treatment. And their partners generally remain unknown to Public Health as well. Even if an HIV-positive man does provide the names of some prior sex partners, those records have to be destroyed, per Washington law, after 90 days. "That's an exceptional feature of the way HIV is handled," says Wood. "With all other STDs [sexually transmitted diseases], partner records are kept indefinitely." Once records are destroyed, obviously, it's impossible to discover if one particular name is showing up regularly on the partner lists of men who become infected.

All this analysis is much easier, of course, in the case of heterosexual women, who are, by and large, so much less promiscuous than gay men that their partners can be much more readily traced. No doubt, this is part of the reason prosecutions have arisen, almost exclusively, from heterosexual encounters. It may also help explain why prosecutions have occurred in places like Iowa City; Natchez, Miss.; Huron, S.D.; and Lacey, Wash., rather than Chicago, New York, Atlanta, and Seattle: Where there are far fewer HIV cases in general, it may be much easier to isolate a bad actor.

Dr. Wood notes that the city's health agency is in a passive role with respect to dangerous behavior. "We basically wait for people to report [misdeeds]. We're not out there combing the woods, searching medical records." Washington's administrative code requires that Public Health neither accept nor investigate anonymous complaints.

Katie Mitchell, a counselor at the People of Color Against AIDS Network (POCAAN) in Seattle, recalls speaking to one woman whose cousin was infected. "She knew he was going around having unprotected sex," says Mitchell. "She wanted to report him – that is, until she was told she'd have to give her name."

The health department has to strike a balance between warning against reckless behavior and not turning into a community cop. "In general," Wood says, "Public Health wants to stay out of the criminal realm. We want to encourage people to come forward and get tested, and if there's a perception that we're going to attach ankle bracelets and install a camera in your bedroom, that's going to provide a disincentive."

Wood believes only a small proportion of HIV transmissions result from some kind of deliberate deception in any case. Most occur "through carelessness," he says – "people being horny, using alcohol and drugs, and not caring about themselves."

Unsystematic System

The Whitfield case is remarkable not just for the number of charges and victims but because it grew out of the health department's initiative, rather than a complaint from a victim. None of Whitfield's girlfriends called the cops; it was health officer Dr. Yu who ultimately called the police. In most cases around the country, prosecution for HIV exposure follows not from health officials doing their own sleuthing but from wives and girlfriends finding bottles in a medicine cabinet or hearing a rumor that proves to be true, then filing a complaint. That is how Washington's previous HIV assault convict, Mitchell Anfield, was busted in 1999: A woman from the Swinomish Indian Reservation who'd had sex with Anfield later heard he was HIV-positive, and went to the Skagit County sheriff. (Anfield was charged with two counts of first-degree assault and plead to one; he was sent to prison for 12 years.)

"People are very reluctant to come forward and say they've been victimized," says Tom Verge, who prosecuted the Anfield case. "This was a brave and determined woman."

But under such a complaint-driven system, behavior that society wants to discourage in general is instead condemned only sporadically, leaving room for prejudice and inconsistency. In his recent book, "Notorious H.I.V.," which examines the 1997 case of Nushawn Williams, a 20-year-old African American man who was alleged to have serially infected white women in a small New York town, Ithaca College professor of politics Thomas Shevory writes: "Although there has been a tremendous proliferation of formal rules regarding the knowing transmission of HIV, the application of these rules has been somewhat random and thus highly inequitable."

Examining 15 years' worth of cases, the authors of a 2001 study by researchers at Johns Hopkins School of Public Health wrote, "We found no evidence of systematic enforcement of HIV exposure law. The main thing that seems to determine who gets prosecuted is the accident of being caught and brought to the attention of a willing prosecutor."

Instead of being a crime that is pursued to protect the public, HIV exposure has become a recourse of retribution, often after the relationship is over. "People are loyal to their partners until they break up," says Dr. Yu. In Provo, Utah, last year, a woman called police to report that her husband was at a local motel with another woman. As one newspaper account put it: "The wife said she was concerned that the woman may not know that her husband may be HIV-positive." Once fully informed by police, the woman sought to press charges. Professor Kleiman at UCLA likens our handling of HIV exposure to statutory rape. "It's consensual private activity that's not going to come to the attention of law enforcement unless someone gets pissed off," he says. "That's not obviously a bad system. You're giving the victim the power to damage the perpetrator if the perpetrator, in addition to committing the technical crime, pisses her off. If I were the prosecutor or the cops, I wouldn't be expending a huge amount of law-enforcement energy to ferret out these cases. But the statute is there if somebody wants to complain."

Of course, this also allows dangerous men to be protected. Edith Allen, a public health specialist at Harborview's STD clinic, describes a typical situation in Seattle, where most of the HIV-positive women are not African American but from Africa: "A woman is infected by her partner; he may have known, but she did not. When you ask her, 'How do you feel? What do you think should be done about it?' she'll say: 'I'm angry and everything, but I love him. I don't want to do anything right now.' Or she'll say, 'We're both positive now; nobody else is going to want me.'"

A Case of Buyer Beware

Dr. Wood points to the fact that HIV "assault" requires proof of intent to infect someone. "That's an area that the AIDS directors around the state have felt for some time needs to be fixed," he says, adding: "There is a lot of resistance on the part of the AIDS activist community."

Some legislators tried to pass an HIV exposure law that did not require "intent" back in the mid-1990s, but without success. AIDS activist groups have generally opposed any attempts to criminalize consensual behavior. Attorney Givner of Lamda Legal argues "it's extraordinarily rare that a person intentionally attempts to infect someone with HIV, and intentional harmful behavior is what criminal law is supposed to deter." As for other cases, where it's simply unclear who knew what about whose status, Givner says, "Putting people in jail is just not an appropriate way to remedy the ills of sexual miscommunication." California has "intent" as part of its statute as well, while other states, with less powerful activist groups, do not – another reason, perhaps, why prosecutions often occur outside the major HIV centers.

Wood describes one individual with whom he's recently been in contact: "The guy is depressed, he has HIV, and is having a lot of [unsafe] sex. We tried to find out from his [medical] provider – did he intend to infect people? Did he ever say, 'I want to take as many people with me as I can?' And it's clear that he didn't, he's just saying, 'I want to have as much sex as I can, and buyer beware.' I would call that reckless endangerment, but it's not something, according to my attorney, that I can do much about."

On the other hand, court rulings may have made it easier to establish intent than has been widely recognized. In 1999, a state court heard the appeal of Randall Louis Ferguson, a southwest Washington man who was believed by authorities to have infected dozens of people through many years of needle-sharing and unprotected sex. Because of a three-year statute of limitations and other issues, prosecutors in 1996 were only able to charge Ferguson with one count of second-degree assault. It was in response to this case that Olympia legislators elevated deliberate exposure of HIV to first-degree assault in 1997, despite the opposition of groups that advocate on behalf of people with AIDS and Seattle legislators.

In appealing Ferguson's conviction and sentence, his attorney argued that testimony from additional women who'd had sex with the defendant – besides the one he was charged with exposing – should not have been admitted at trial. But the appeals court disagreed, saying their testimony was relevant to the case. In their decision, the appeals court judges wrote:

"If a man who knows he has HIV has sex once or twice without a condom, he may be acting forgetfully or in the heat of passion (i.e., without an intent to inflict harm). If a man who knows he has HIV repeatedly has sex with many women, without advising them of his HIV status and without using a condom, it may be inferred from the facts alone ... that he is acting with intent to inflict harm."

Such a view of "intent" broadens the playing field considerably. Anyone, gay or straight, who is acting recklessly, could be culpable, with no expressions of malice – no statements like Whitfield's "I'm going to give AIDS to everyone I can" – required. Whether we would want to see criminal law deployed in such an aggressive manner in the war against AIDS is an open question. But Dr. Wood says there are many in the medical community who feel we "ought to have more ability to corral the [dangerous] behaviors." The current law, imperfect as it is, seems to be serving some public good, but the arbitrariness and harshness with which it is enforced may be doing an equal amount of harm to public health. More moderate punishment, imparted more consistently, could provide a more useful deterrent than the unpredictable, life-shattering bolt from the blue. But that kind of reliability may be more than any law regarding sexual behavior can deliver.

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