HIV Law Will Draw Constitutional Appeal
A woman sentenced to 10 years for failing to disclose her HIV status to her former husband plans a constitutional challenge to the Georgia law under which she was convicted. HN was convicted Oct. 12 in Hall County Superior Court of “reckless conduct by an HIV infected person,” a felony, following a four-day trial. Her ex-husband – who does not have HIV – testified against her. Senior Judge John Girardeau sentenced her immediately, over the objections of her lawyer, Senior Assistant Public Defender Travis Williams of the Northeastern Judicial Circuit Public Defender Office . The judge gave her the maximum sentence of 10 years, with two years to serve in prison and eight on probation.
Williams said he plans to appeal the conviction. On the day the trial began, Oct. 9, he filed a demurrer to quash the indictment, asserting that it “denies the defendant equal protection under the law as guaranteed by the Fourteenth Amendment of the U.S. Constitution.” The judge denied the motion to quash after a brief hearing, Williams said. He plans to appeal that decision as well. “The statute purports to punish individuals solely because of their HIV status and community standing,” the motion states. “Under this code section, HIV, a recognized disability, is criminalized.” A constitutional challenge would skip the Georgia Court of Appeals and go directly to the Georgia Supreme Court, he said. Part of the equal protection challenge is that the law treats people with HIV differently than people with other sexually transmitted diseases. Another point is that the law is unconstitutionally vague.
“The criminalization of HIV is deplorable and unacceptable,” said Williams. “We’re prosecuting people who should be treated with respect and dignity.” Despite advances in the treatment and prevention of AIDS even in those who are HIV-positive, the disease still has a “ridiculous stigma attached,” Williams said. In voir dire, he said, 63 percent of potential jurors answered yes when asked if they believed they had a right to know if a co-worker had HIV. When asked why, one said they worked in close quarters and someone might sneeze.
The prosecutor who tried the case, Hall County Senior Assistant District Attorney Juliet Aldridge, said the case “wasn’t based on stigmatizing HIV.” Instead, she said, “It was a violation of Georgia law to not notify a sexual partner of the risk that they were taking.” The case, Aldridge said, “was about the law, not about either attorney.” She also said her office is “confident in the constitutionality of the statute.”
The statute used in this case is 16-5-60 of the Georgia Code: “Reckless conduct causing harm to or endangering the bodily safety of another; conduct by HIV infected persons; assault by HIV infected persons.” The law, passed in 1988, says the information must be shared “prior to” a sexual act. The maximum penalty is 10 years.
In the N trial, her ex-husband, Kevin Franklin, testified that he learned of her HIV status in 2009 when she was hospitalized for an unrelated medical condition. He divorced her later in 2009. They had been married for two years but together for eight. She disputed his claim and said she had told him. Williams said she testified that she told him before they had sex. “She’s had HIV since 1998, and it never turned into AIDS,” Williams said. “There’s only one way you can do that.” To keep healthy, she took 32 pills a day for a time, later cutting down to 16, he said.
Williams tried to discredit the ex-husband’s testimony, questioning how he could have not seen her taking those medications. He said he did not. Williams said he asked the ex-husband on cross-examination whether he planned to disclose to his next sexual partner that he was exposed to HIV through N. “He said he wouldn’t,” Travis said, noting that Franklin never contracted HIV in the years he was with N. Williams also called witnesses who were friends with the husband and said they knew and thought he knew that she had HIV.
Stephen Bright, president and senior counsel of the Southern Center for Human Rights, said it’s difficult to understand what harm was done, since the ex-husband does not have HIV. “It’s very troubling that the prosecution executed it’s discretion to pursue this and even more troubling that she got prison time,” Bright said.
Williams is now concerned about how his client can stay healthy in jail. He plans to ask that she be kept in the local jail rather than being sent to prison while her appeal is pending. It was an emotional trial for N and her family, and also for her lawyer. “The trial started on the seventh-year anniversary of the day my sister died of AIDS,” Williams said. He shared that with the jury. Williams is one of the public defenders featured in the 2013 HBO film “Gideon’s Army.”
Gainesville woman convicted of reckless conduct in HIV case
A Gainesville woman was found guilty Saturday of reckless conduct by an HIV-infected person in Hall County Superior Court. HN, 36, was convicted of the felony for withholding knowledge of her HIV status to her then-husband and longtime partner, in violation of Georgia criminal statutes.
Senior Superior Court Judge John Girardeau sentenced N immediately after the trial, to the objection of public defender Travis Williams. N was sentenced to the maximum 10 years, two to serve in prison and eight on probation.