AIDS as murder

By: Gay.com
10.7.2008


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Tricky topic here.  AIDS and murder.  There is a trial going on in Ontario, Canada, in which a 52 year-old man is charged with murder in the deaths of two women.  The allegations are the man knowingly had unprotected sex with these women – and knowingly transmitted the HIV virus to them.  Subsequently, according to the prosecution, these women died from AIDS related causes.  And now he is standing trial for murder.

Tricky topic, indeed. There are lots of legal arguments that can be made – and are made – for criminal prosecutions against people who knowingly transmit HIV to their sexual partners. Depending on the set of circumstances and the specifics of any given case, prosecutors in the United States have wide latitude to bring criminal charges in this area.

According to Ms. Bebe Anderson at the Lambda Legal Defense Fund, there are a myriad of criminal statutes that specifically speak to HIV/AIDS in terms of criminal acts against others, ranging from a Class C misdemeanor in Alabama to felony charges that carry the same penalties as second-degree murder in Pennsylvania.

All these states and all their laws, and all the cases that could be prosecuted under them, are fact-specific. And that’s where this starts getting really, really messy.

As Lambda pointed out to me, one of the biggest problems in this area of prosecution is the absolute paucity of medical evidence that is presented to courts in these cases to establish the actual transmission of the HIV virus that caused a person’s AIDS and then his or her AIDS-related death. Moreover, more severe prosecution (under more severe criminal statutes) relies on intent. Proving someone has the intent to first infect someone with HIV, and then cause his or her death as a result of the AIDS that would come from the HIV infection, is pretty much impossible to establish.

Murder 1 or 2 requires intent on the part of the accused. Thus, one would have to prove that the accused intended to kill his partners via AIDS. On the other hand, manslaughter charges can be brought under reckless endangerment theories, in which the accused should have or did know that the likely outcome of his act would result in another person's death. This approach could, potentially, stick. Should it?

Do we prosecute caregivers on charges of neglect, or on criminal endangerment, or for child abuse, when adults feed their children fats and sugars to the point that the kids develop adult onset (Type II) diabetes by the age of ten? No. Should we? Hell no. And if we don’t in this type of scenario – a scenario where an adult, with absolute control over a minor is responsible for causing life-threatening medical harm – how can we in a situation involving sex between consenting adults that ends with the transmission of HIV? Don’t both parties to a sexual liaison have mutual responsibility to protect themselves to whatever degree is reasonable, especially given the facts of STD transmission in our society? Simply accepting the word of your sexual partner that he/she is not HIV infected does not, to me, seem to constitute a reasonable level of self-responsibility. And the failure of an adult to take reasonable steps to defend his or herself does not, seem to me, to warrant state action in loco parentis.

I am not a lawyer, just a guy trying to figure this stuff out. There is something truly immoral about a person who would knowingly infect another with HIV against that person’s knowledge or wishes. And, if there is a hell, I am sure that there is a nice warm room waiting for them. But morality is not the basis for criminal prosecutions. That is a slippery slope, which, I assure you, we don’t want to go sliding down.

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