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Alleged Bite Leaves Bitter Taste of Unjust Law

December 6, 2011

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An incident last month in which an Oak Park man allegedly bit a police officer upon arrest has again raised questions about Illinois' HIV criminal transmission law, among the harshest of such laws in the country.

According to the Chicago Tribune brief, a 36-year-old man allegedly bit a police officer on Nov. 18 when he was arrested for felony retail theft. He was also charged with aggravated battery of a police officer after the alleged attack.

The incident -- and the subsequent police and legal response -- were deeply problematic on several levels, said Ann Hilton Fisher, executive director of the AIDS Legal Council of Chicago, (pictured at right).

Fisher responded, via email, to Inside Story's questions about the incident and why it matters. What follows is an edited transcript of that exchange.

 

Inside Story: What went wrong in charging this man with HIV criminal transmission?

Ann Hilton Fisher: A lot went wrong.  The alleged offender, for whatever reason, apparently disclosed his HIV status at the station.  There was no need for him to do that.  The officer who was bit was understandably angry and, I would guess, decided to “throw the book” at him.  The prosecutor backed up the police by authorizing the felony charge.  What I don’t know is whether the officer and the state’s attorney were really afraid there would be a risk of HIV transmission.   If they knew the real risks — none in this case — then their actions were purely vindictive.  If they did not know the real risk, they need some education. 

One of the stories suggested that the police officer did seek emergency treatment.  We don’t know what, if anything, he was told about the real risk of transmission at that point, or whether he was offered, or accepted, HIV prophylaxis. 

There’s a tendency in these situations, fueled by the fear and stigma surrounding HIV, to spin theoretical risks out of control, along the lines of “Well, maybe he had a cut in his mouth and maybe there was a lot of fresh blood on his teeth, and maybe when he bit the officer the fresh blood on his teeth could have made its way into the officer’s bloodstream and then maybe the officer could have caught HIV.”  Not in any way plausible, but frightening enough that people panic and make irrational decisions.

IS: How common is this sort of incident and ensuing felony charge in Illinois?

AHF: Rare but unpredictable.  On average, there are fewer than five cases a year statewide. 

IS: How does the HIV criminal transmission law perpetuate stigma and discrimination?

AHF: The HIV criminal transmission law suggests that HIV is a terrifying and scary disease — so terrifying and scary that it needs its own law.  It basically tells people with HIV that they shouldn’t be having sex at all and it allows all sorts of incidents, such as this bite, to fall under the definition of “intimate contact.”  It makes no distinction between sexual practices that have lower or higher risk and makes the use of a condom legally irrelevant.

Arrests like the one in Oak Park, with the accompanying publicity, fuel public fears and misconceptions about HIV transmission.  Because they suggest that HIV can be transmitted by a simple bite — or by spitting, which is often the case when prisoners are charged with HIV transmission after spitting on a guard — it makes people reluctant to have their children in school with someone with HIV, or perhaps even share a meal with someone with HIV. 

The law also discourages people from getting tested for HIV, because it only applies to people who know their status.  There is no evidence that these laws reduce the transmission of HIV.   

IS: How does Illinois’ HIV criminal transmission law compare to other states?

AHF: Thirty-four states have specific laws criminalizing HIV transmission.  Illinois’ is among the harshest, not only because of the 14 year sentence for conviction of a class B felony, but also because it allows conviction regardless of whether anyone catches HIV and regardless of whether or not there is an intent to transmit HIV.  But many other state laws are just as harsh.

IS: What needs to change?

AHF: Congresswoman Barbara Lee has introduced H.B. 3053, the Repeal HIV Discrimination Act, which would require a review of state and federal laws that unfairly target people with HIV for consensual sex and for activities that pose no real risk of transmission and provide incentives for states to modify their laws accordingly.  In Illinois, we should at the very least amend our law so that it no longer penalizes activities that pose no real risk of transmission. 

IS: Do you have anything to add about this particular case or the issue in general?

AHF: Yes.  One of the unfortunate aspects of this case, and most criminal transmission cases, is that it the mere fact of an arrest effectively and immediately ends HIV confidentiality.  This man’s name, photo and HIV status are now a matter of public record, and have received wide media distribution, including in his hometown papers.  Regardless of the outcome of this particular arrest, that damage cannot be undone.

For more information, check out the great resources available on this issue at http://www.hivlawandpolicy.org/public/initiatives/positivejusticeproject

To take action by urging your legislators to co-sponsor Congresswoman Lee's Repeal HIV Discrimination Act, go to this action alert.

Categorized under Inside Story.

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