Human Rights

They're Trying to Call HIV-Positive People Bioterrorists?

HIV-positive Daniel Allen was charged with 'possession or use of a harmful biological device' after biting his neighbor during a neighborhood fight.

The body of a 44-year-old man is a bioterror weapon, according to a Michigan county prosecutor who is charging Daniel Allen, with "possession or use of a harmful biological device" for biting his neighbor during a neighborhood fight. Allen is African American and HIV-positive; his case is believed to be the first in the nation where prosecutors are linking anti-terrorism laws to an individual's HIV infection.

On October 18, Allen and his neighbor, Winfred Fernadis Jr., got into an argument that quickly turned violent. Allen contends he was the victim of a hate crime -- Fernandis allegedly taunted him about his sexual orientation after a stray football landed in Allen's yard -- and he has filed a complaint with the FBI. (He also filed a personal protection claim against the Fernandis family.)

Fernandis, however, suffered a severe bite through his lip, as well as bites on his ear, nose and neck; he was hospitalized for his wounds. Allen too suffered injuries. At an early hearing on the case, Allen's lawyer presented 37 photographs of his wounds, including bite marks on his body. Allen was initially arrested on assault charges, but when Macomb County Prosecutor Eric Smith discovered he was HIV-positive from his disclosure on a local news broadcast, he decided to additionally charge him with using his body as a terrorist weapon.

In court on April 8, Allen refused a plea deal offered by the prosecution, which would have obligated Allen to plead guilty to "assault with intent to cause great bodily harm less than murder," a charge that carries a 10-year-sentence. In exchange, Smith would have dropped the charges of "assault with intent to maim" (another 10-year felony), and "possession or use of a harmful biological device" -- the "device" being Allen's own body. This last charge -- a 15-year-felony -- would apply a state anti-terrorism law that was broadly rewritten in the wake of the 9/11 attacks.

The American Civil Liberties Union of Michigan has filed an amicus brief in Allen's case that urges the terrorism charge to be dismissed. The Macomb Daily reports that Allen's lawyer, James Galen, intends to further file a motion to dismiss the charges. The case returns to court for final pre-trial hearings at the end of April.

HIV-Positive People as WMD

Contracting HIV through a bite is exceptionally uncommon, according to the Centers for Disease Control and Prevention. In fact, the CDC has only reported one case that suggests any possibility of blood-to-blood transmission of HIV by a human bite. Other possible cases all have involved "severe trauma with extensive tissue tearing and damage and presence of blood." What's more, the small number of these possible cases are dwarfed by the more than one million people in the U.S. who are living with HIV/AIDS. According to the National Institute of Allergy and Infectious Diseases, 33 million people live with the virus around the world.

While the terrorism charge against Allen is unprecedented, it comes in the context of public policy that increasingly characterizes people with HIV as "weapons of mass destruction." More than 30 states criminalize consensual sex when one of the individuals has HIV (even when no transmission occurs). Federal law requires each state to have a criminal procedure in place for people who fail to disclose HIV status before engaging in activity that could transmit the virus.

Willie Campbell, an HIV-positive man in Texas, was sentenced to 35 years in prison in 2008 for "harassing a public servant with a deadly weapon" when he spat on a police officer and taunted him, despite the fact that, in the entire history of the HIV epidemic, there has never been a case of the virus being transmitted via saliva. (In fact, saliva that is uncontaminated by blood inhibits the transmission of HIV.) Nevertheless, Campbell, who is African American and was homeless at the time of his arrest, must serve at least half his sentence before he is eligible for parole.

Campbell is not unique. HIV-positive individuals prosecuted for spitting have been convicted of, among other charges, attempted murder, assault with a deadly weapon, and "battery by body waste," according to the Yale University Center for Interdisciplinary Research on AIDS. One year ago, Canada issued what is believed to be the world's first murder conviction against a person with HIV for having unprotected sex with unsuspecting partners. Johnson Aziga, a native of Uganda, had unprotected sex with 11 women without disclosing that he is HIV-positive. Seven of the women contracted HIV, and two died of AIDS-related cancers. Aziga is serving a life sentence for first-degree murder with no parole eligibility for 25 years.

While some might argue that such a violation merits some form of sanction, criminal charges also loom over HIV-positive people who do disclose their status to their partners. In October, a U.S. military court sentenced Petty Officer 1st Class Steven R. Franklin to three months in prison after he pled guilty to having unprotected sex with two women who knew he was HIV-positive. Neither contracted HIV. Other charges -- such as adultery -- were dropped as part of the plea deal. The 37-year-old officer had signed a document through the military that pledged to disclose his status and use protection for sexual activity. This officer, who had been in the Navy for 18 years, was demoted and given a bad-conduct discharge.

The new intensity of HIV criminalization charges and convictions has dangerous implications. Current law provides a disincentive to getting tested and learning one's HIV status -- if a person is unaware he or she has HIV, that person is, legally, considered less responsible for the consequences of, say, infecting a sexual partner. High-profile cases like Daniel Allen's, then, have a serious public health cost.

They also spread misinformation, exacerbating the stigma on those who do get tested, as if getting tested is evidence that someone is promiscuous, gay, or a drug user. "Prosecutions that hinge on an individual's HIV status, without proof of any intent to harm -- and frequently resulting in convictions in cases where in fact no harm has been done -- perpetuate public mispercpetions of HIV as easily transmitted and people with HIV as toxic and dangerous to be around," Catherine Hanssens, executive director of the Center for HIV Law & Policy, told AlterNet. "This is not only a huge, unfair burden on people with HIV, it undermines public health goals of destigmatizing HIV and getting people tested and into care and is therefore terrible public policy."

Kristina Schmidgall, lead re-entry case manager with AIDS Partnership Michigan, contends that the stigma of HIV/AIDS is both exacerbated by legal cases like Allen's and is out of proportion with its threat on public health. "HIV is infectious, but it's much easier to transmit hepatitis C or hepatitis B -- though we don't have such a fuss about them," Schmidgall told AlterNet, adding that both hepatitis C and B are much more prevalent than HIV.

"We want to normalize testing (for HIV/AIDS) as a regular part of health care," Schmidgall said. "Nobody asks me why I had a Pap smear; it's just a basic thing you do to take care of yourself."

'People have to push back against and stand up to this kind of persecution'

William B. Turner is a lawyer and research fellow with the James Weldon Johnson Institute at Emory University. He believes that the criminalization of HIV/AIDS is rooted in the lingering suspicion of gay men as fundamentally irresponsible people who bring the disease upon themselves.

"Although information about how to transmit [HIV], and, more importantly, how not to transmit HIV is widely available, as the story of the Michigan man indicates, even people who should know better don't always have very accurate info," Turner, who is himself a gay man living with AIDS, told AlterNet. "Biting is perhaps the single least effective way to transmit HIV. This is all hangover from the beginning of the epidemic, when no one was quite sure how it got transmitted."

Turner said he believes the criminalization of HIV may have a concrete negative impact on the health of people who, like Allen, are prosecuted.

"Then there's the impact of stress on one's health, well enough documented," Turner said. "Few experiences are as stressful, presumably, as a criminal prosecution. It may literally shorten [Allen's] life, although that will never be provable."

Outside the realm of prosecutions and arrests, institutionalized misinformation has long led to policies that restrict people living with HIV, revealing the peculiar influence of the disease's stigma. In Michigan, for example, HIV-positive individuals are not allowed to work in the kitchens of state correctional facilities, despite the almost nonexistent possibility of anybody contracting HIV through contact with food. In contrast, Kristina Schmidgall points out, people with hepatitis C are permitted to work in these same kitchens. The ACLU is currently challenging the Michigan Department of Corrections on its policy's targeting of HIV positive prisoners.

Policies that affirm misinformation about HIV/AIDS persist, despite the fact that the virus has been thoroughly researched since it was first discovered in June 1981. "In the 29 years since, we figured out how (HIV/AIDS) is transmitted, how to test for it, how to treat it, and while we haven't found a cure, people can manage the disease," said Schmidgall, noting that this effort is supported by significant research funding. "In the spectrum of other diseases in history, that's not so slow."

Schmidgall compared the trajectory of HIV/AIDS with that of polio, another epidemic disease. While polio was depicted in prehistoric art, its first clinical description came in 1789. The polio vaccine wasn't announced until 166 years later.

But the wealth of research on HIV/AIDS over the last three decades contrasts sharply with ongoing public misperceptions that are codifed by polices that criminalize the disease -- paving the way for people like Allen to find themselves susceptible to terror charges for actions that not only are demonstrably incapable of spreading HIV, but would, for a non-HIV positive person, carry much less serious sanctions.

While much HIV/AIDS funding, from federal and local governments to foundations, supports research and treatment, much less money is available for public awareness campaigns that might change the trajectory of HIV criminalization. Schmidgall warns that the disproportionate impact on communities of color may also influence how HIV-positive people interact with the justice system. What's more, communities that bear the brunt of the HIV/AIDS epidemic traditionally have less voice in the media and legal system, making pushback against misinformation an uphill battle. As a result, myths persist that override the reality. "Most [HIV-positive] people would be horrified to infect anyone else. They have a greater sense of responsibility about it," Schmidgall said.

As for Allen, Turner believes his rejection of the plea deal and the ACLU's involvement is a good start in challenging the motives behind the terrorism charge. "People have to push back against and stand up to this kind of persecution -- a term I use advisedly," Turner said.

As of this writing, 1,240 have signed the petition for Prosecutor Smith to drop the HIV-as-terrorism charges against Allen.

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Anna Clark's writing has appeared in The American Prospect, Bitch, Religion Dispatches and ColorLines, among other publications. She is the editor of the literary and social justice Web site, Isak.