By Brian Teets
Yesterday [December 1] was World AIDS Day, which has been dedicated to raising awareness of the AIDS pandemic since 1988.[1] This year’s theme was “Focus, Partner, Achieve: An AIDS-free Generation.”[2] To better achieve an AIDS-free generation, it is important to understand the mechanisms by which the human immunodeficiency virus (“HIV”), the virus causing AIDS, is transmitted. A thorough understanding of transmission mechanisms could not only further the cause of World AIDS Day, but it could also alleviate the amount of people prosecuted on assault with a deadly weapon charges.
While it is safe to conclude that the general understanding of HIV transmission in 1992 was significantly less than it is today[3], people with HIV continue to be prosecuted for assault with a deadly weapon and attempted murder across the country.[4] Since antiretroviral therapy became available, the death rate due to AIDS has decreased by two-thirds.[5] In 2010 alone, an estimated 700,00 lives have been saved due to the increase in antiretroviral medicine.[6] Yet, courts still rule that HIV is deadly.[7] Moreover, courts continue to find that HIV is deadly even when there is no likelihood of transmission.[8] These rulings occur when the defendant is charged for assault with a deadly weapon or attempted murder after the defendants have either spat at or bitten a victim.[9]
The problem arises because there is an issue of fact – whether spitting or biting can transmit HIV – before a jury. In Weeks v. State, Curtis Weeks, an HIV positive inmate, faced life in prison after he was charged with his third felony, attempted murder, for spitting on a security guard in 1992.[10] The State introduced three doctors who were qualified as experts in HIV virology.[11] All three testified that a likelihood greater than zero existed that HIV could indeed be transmitted through saliva, especially since Weeks had gingivitis.[12] None of the State’s experts, however, had tested Weeks’ saliva to conclude that HIV was present.[13] Weeks introduced his own expert who questioned the data upon which the State relied and testified further that HIV found in saliva was inactive.[14]Despite evidence that HIV cannot be transmitted through saliva, the judge allowed the jury to decide this issue of fact.[15] Consequently, the appellate court found that any rational trier of fact could reach the conclusion that HIV could be transmitted through saliva and upheld the verdict.[16]
Similarly, in Campbell v. State, Willie Campbell was found guilty of assault with a deadly weapon.[17] In this case, a doctor for the State testified that there was a very low risk that transmission of HIV could occur through saliva and cited the fact that 2% of transmission causes of HIV are unknown.[18] This verdict would seem consistent with the general understanding of HIV transmission if the case has been decided in 1992 like Weeks. However, this case was decided in 2009 when it is well known that HIV cannot be transmitted through saliva.[19] The scientific understanding in 2009 is consistent with today’s research from the Center for Disease Control,[20] yet people continue to serve substantial prison sentences.[21]
From these cases and several others that occur every year, it is evident that the general understanding of HIV transmission does not match the scientific understanding.[22] This lack of understanding has drastic effects on society and further stigmatizes individuals who already suffer from degradation.[23] In fact, United Nations Secretary General has said that “[s]tigma remains the most important barrier to public action.”[24]Education can remove the stigma surrounding HIV[25], and in many situations, courts could take the lead by instructing juries of the ways that HIV can and cannot be transmitted. If this were to happen, society could be one step closer to achieving an AIDS-free generation.
[1] See How World AIDS Day Began, National Public Radio (Dec. 1, 2011),available at https://www.npr.org/2011/12/01/143017936/how-world-aids-day-began.
[2] Focus, Partner, Achieve: An AIDS-free Generation, U.S. Dep’t of Health and Human Servs., available at https://aids.gov/news-and-events/awareness-days/world-aids-day/ (last visited Nov. 26, 2014).
[3] See A Timeline of AIDS, U.S. Dep’t of Health and Human Servs.,available at https://www.aids.gov/hiv-aids-basics/hiv-aids-101/aids-timeline/ (last visited Nov. 26, 2014).
[4] Compare Weeks v. State, 834 S.W.2d 559, 566 (Tex. App. 1992) withCampbell v. State, No. 05-08-00736, 2009 WL 2025344, at *1, 3 (Tex. App. July 14, 2009). See also Prosecutions and Arrests for HIV Exposure in the United States, 2008-2014, Ctr. for HIV Law & Pol’y, available athttps://hivlawandpolicy.org/sites/www.hivlawandpolicy.org/files/Chart%20of%20US%20Prosecutions%202008-2014.pdf (last visited Nov. 30, 2014).
[5] Anthony S. Fauci & Gregory K. Folkers, Toward an AIDS-free Generation, 308 J. Am. Med. Ass’n 343, 343 (2012).
[6] Id.
[7] Campbell, 2009 WL 2025344, at *3.
[8] Id.
[9] Ctr. for HIV Law & Pol’y, supra note 4.
[10] Weeks v. State, 834 S.W.2d 559, 560 (Tex. App. 1992).
[11] Id. at 562.
[12] Id. at 562-64.
[13] Id.
[14] Id. at 564.
[15] Id. at 565.
[16] Id. at 566.
[17] Campbell v. State, No. 05-08-00736, 2009 WL 2025344, at *1, 5 (Tex. App. July 14, 2009).
[18] Id. at *3.
[19] Jennifer LaRue Huget, How Not to Spread AIDS, Washington Post (Mar. 16, 2009), available athttps://voices.washingtonpost.com/checkup/2009/03/how_not_to_spread_aids.html.
[20] HIV Transmission, Ctr. Disease Control, available athttps://www.cdc.gov/hiv/basics/transmission.html (last visited Nov. 30, 2014).
[21] Prosecutions and Arrests for HIV Exposure in the United States, 2008-2014, Ctr. for HIV Law & Pol’y, available athttps://hivlawandpolicy.org/sites/www.hivlawandpolicy.org/files/Chart%20of%20US%20Prosecutions%202008-2014.pdf (last visited Nov. 30, 2014).
[22] The Top 10 Myths and Misconceptions about HIV and AIDS, WebMD,available at https://www.webmd.com/hiv-aids/top-10-myths-misconceptions-about-hiv-aids (last visited Nov. 30, 2014).
[23] HIV and AIDS Stigma and Discrimination, AVERT, available athttps://www.avert.org/about-avert.htm (last visited Nov. 30, 2014).
[24] Id.
[25] Id.