US: Media, police, judge conspire in ‘hate crime’ against gay HIV-positive man in biting case

I am so mad I could spit and bite! I’ve seen a lot of bad reporting and bad legal decisions during my time blogging, but never before have I seen the media conspire with the criminal justice system in such a calculated, prejudiced, stigmatising, and ultimately harmful way.

A gay man from a small city in Michigan who has been harrassed and beaten up by neighbours for years, has been charged with “assault with intent to maim, assault with intent to commit great bodily harm and possession or use of a harmful device” after the latest assault resulted in biting his neighbour the lip whilst he was defending himself.

The story first appeared on October 30th in the Detroit News.

Although police allege [the accused] was the lone attacker — biting neighbor Winfred Fernandis Jr., 28, on the lip following the Oct. 18 confrontation — [the acccused] says he’s long been the target of bigotry on his street, and Fernandis, along with several of Fernandis’ family members, took turns beating him.

“I have no memory of biting him,” said [the accused], who is due in 41-B District Court for a preliminary hearing Monday. He divulged his HIV status after questioning from the media. “This person has been threatening me for years. The hatred needs to stop.”

“He divulged his HIV status after questioning from the media.”

How did that happen? Well, Fox News did some ‘investigating’ and discovered he was HIV-positive. They asked him to confirm it on camera – he did. They then told the bitten neighbour on camera. That’s when it got ugly.

Here’s the Fox News report.


Since HIV is involved, Clinton Township District Court Judge Linda Davis said during a preliminary hearing on November 2nd that just knowing he was HIV-positive and biting the neighbour is enough to sustain these very serious charges, reports a second story in the Detroit News.

“He knew he was HIV-positive, and he bit the guy,” Davis said. “That on its own shows intent.”

No it doesn’t, Judge Davis, because saliva from a bite does not expose someone to HIV. Now she is implicated, along with the police and the complainant (and his wife), in a hate crime.

“I am still maintaining my client is the victim of a hate crime,” [the man’s attorney, James L. Galen Jr.] said. “He will be exonerated. This is the very first battle in what I think is going to be a long war.”

A pretrial and arraignment will take place on November 16th.

US: Arkansas man accused of HIV exposure not HIV-positive despite confession

A 41 year-old man in El Dorado, Arkansas, appears to have admitted under police questioning that he was HIV-positive after being arrrested in September for allegedly having unprotected without disclosing his HIV status.

However, a brief report from the police log of the El Dorado News-Times notes that the man was, in fact, HIV-negative, something he’d maintained during his arrest.

One can only wonder what went on during his time being questioned by police that could have made this man confess to something that wasn’t true, and why he was arrested in the first place.

Charges will not be filed against an El Dorado man who was arrested on Sept. 17 for knowingly/willfully exposing another person to HIV. Police said an investigation determined that [name of accused] 41, does not have HIV. According to an affidavit for warrant of arrest, [he] initially told officers he was not HIV-infected, but upon further questioning, he said he had the virus. Police said testing and a review of [his] medical records led to the charge being dropped.

Germany: Man accused of intentional sexual transmission; complainant gives interview

An HIV-positive man has been arrested in the northern German city of Kiel accused of grievous bodily harm following a complaint from a 39 year-old woman who recently tested HIV-positive and who claims the man lied about his HIV status before they had unprotected sex. She also claims that he admitted to her that he plans to infect more women.

The story appeared today as an interview with the female complainant in the Hamburger Morgenpost (not-quite perfect English translation from Google translate here).

The woman, known as Beate K. is also photographed, but appears to be heavily disguised in a wig and sunglasses. She names her accused as Volker W. whom she met on an online dating site following the end of her 20 year marriage.

According to Beate, who lives in a small village in Schleswig-Holstein (of which Kiel is the capital), Volker persuaded her to have sex after two months and told her that he was “clean” and was tested for STIs “regularly”. She claims he refused to wear a condom.

It’s not clear from the interview whether they had sex more than once or how long the relationship lasted. But “in the summer” she became ill, and was eventually diagnosed with HIV disease. She says that since Volker was the only man she had been intimate with since her divorce, she called him to let him know. It was at this point that Beate claims he infected her deliberately

“He admitted he had infected me, and boasted that he would infect other women, since he was already in a new relationship.”

The police became involved, arrested Volker W., and are keeping him in custody because there is a risk he will reoffend. According to spokesperson Uwe Wick, they know of three women “affected”. He asks that any other women “overcome their shame and report it to the police.”

Whilst I have no reason to doubt the veracity of Beate’s statements, I am concerned that this testimony will possibly prejudice any judge or jury that may come across this case in the future.

There are certainly good ethical and legal grounds for prosecution, but one of the things that stands out about cases where female complainants go public to talk about their experiences, is the missed opportunity to highlight that even divorced women in small villages in northern Germany are at risk of HIV, and that they shouldn’t rely on their male partner’s (lack of) disclosure to protect them.

The point of the criminal law is to punish actions that we consider to be morally harmful. In this case, it appears to be warranted (although I would like to hear both sides of the testimony in a trial before my mind is made up). Proponents of crimalisation point to cases like these and say: well, of course, there should be prosecutions. He’s bad, he must be punished.

But how has the criminal law (and the media reporting on it) impacted on HIV prevention, on public health? Has it stopped future infections? Possibly, if the man’s intention was to infect more women. But the implicit message here is that women need only worry about these rare “monsters” who deliberately set out to infect them.

In order to avoid even more infections, women need to be aware that it is not just “monsters” that can transmit HIV, and that unless they insist on condoms (where that is possible, as it was in this case) rather than rely on disclosure and reassurance, they will be protecting themselves from all partners who may have HIV and may not tell them, either because they don’t know they are infected or because they don’t disclose.

[Thanks to my German partner, Nick, for helping me understand the report.]

Canada: Newspaper editors charged over photo of Aziga complainant

The publisher and two editors of The Hamilton Spectator were charged yesterday with breaching a publication ban by publishing the photo of one of the complainants in their coverage of the murder trial of Johnson Aziga.

According to a report in today’s National Post, publisher, Dana Robbins, editor-in-chief, David Estok, and managing editor, Jim Poling, along with The Hamilton Spectator “as a corporate entity” have been charged on two counts of breaching a publication ban for publishing, at some point during coverage of the trial

a picture taken by a long-time staff photographer with a caption that included the words: “A woman, on right, who was infected by Aziga.”

Canada: Xtra publishes its anti-criminalisation piece-de-resistance

Just a week after Canada’s national gay paper, Xtra, published a radically anti-criminalisation interview on their website, Xtra.ca, comes their piece-de-resistance, Beyond the Courts: a smart, well-written and researched 5,000 word essay from queer Canadian writer/advocate Shawn Syms, whose previous writing on criminalisation and the HIV-positive/negative divide was equally insightful and thought-provoking.

In the piece – which will also be published in shorter form as the cover story of next month’s print edition of Toronto’s Xtra – Syms asks (and tries to answer) the question: How do we stop the spread of HIV without dividing our [unspoken HIV-positive versus HIV-negative and untested gay] communities?

Syms brings together many voices from Canada and abroad – including mine – to illustrate the “growing chorus of activists, civil-society advocates and community members [who are] rallying evidence to show that jailing people with HIV only quenches the individual and public thirst for retribution and blame—while failing to prevent onward HIV transmission.”

There’s much to recommend in the piece, but a few things stand out for me.

First, he turns the argument that the law protects HIV-negative people by punishing HIV-positive people for ‘victimising’ HIV-negative people on its head.

The media and police would have us believe that irresponsible people with HIV are out there victimizing others—but we should never forget that the reality is the other way around. People with HIV are an oppressed minority subject to frequent acts of discrimination by others who have power over them—including the accusers in criminalization cases.

Earlier in the piece, he explains how Canada’s criminalisation of HIV non-disclosure does this.

A vindictive person could use their knowledge of someone’s HIV status as a weapon against them. Many believe this is what happened last year in the case of “Diane,” a Montreal woman whose partner suddenly alleged she had not disclosed her HIV status once she pressed charges against him for domestic assault.

Some people with HIV have been threatened by people they’ve never even been intimate with. Fred Meikle of London, Ontario, says he had an exchange last year with an acquaintance in a gay.com online chatroom where the person stated, “I should call the police, tell them you didn’t disclose.” Meikle replied “We’ve never even had sex; you sat on my sofa and drank a beer.” He says the man replied, “Well, who do you think they will believe?”—highlighting the rift in social power between HIV-negative and positive gay men.

Understandably, this creates a climate of literal “terror” for people with HIV, says Angel Parks, Positive Youth Outreach coordinator for the AIDS Committee of Toronto (ACT). “This is spiraling out of control,” she says about the upswing in criminal charges. At a recent forum in Ottawa in June, she reports, people with HIV from across the country responded to the criminalization threat with “fear, shame, humiliation, and most of all confusion.” And at the weekly support group she coordinates, “individuals are scared… they don’t know to protect themselves” from the risk of bogus charges.

Now, Syms is not saying that all charges are bogus, but that the law as it had been created and is currently practised by the criminal justice system, is open to abuse. That relatively few cases have involved sex between men is irrelevent. It is the climate of fear and mistrust (on both sides) that worries him (and me).

He analyses this further later in the piece, when he rips apart the too-commonly-believed gay community myth that HIV only affects “hardcore risk takers” whose unbridled ‘barebacking’ turns them into “sexual predators.”

The common perception goes something like this. HIV is extremely dangerous, inevitably fatal and not that hard to get. People with HIV have an obligation to tell all partners before any sexual activity at all—because it’s not possible to consent to sex without knowing if the other person has HIV.

To this way of thinking, anyone who doesn’t disclose is dishonest, untrustworthy and probably addicted to barebacking—after all, if their sense of ethics and responsibility were not so obviously lacking, they wouldn’t have contracted the virus in the first place. And someone like that wouldn’t think twice about giving someone else HIV, on purpose. So the solution is to avoid these people, like the plague.

[…]

But gay men haven’t done a good job of passing on the harm-reduction message to new generations, says Richard Berkowitz, one of the originators of safe-sex education in 1983 and subject of the recent documentary Sex Positive. “Today, even progressive gay people fall into the trap of imagining that we are talking about sexual predators who deserve to be locked up.”

The perspective Berkowitz points out hinges upon seeing negative and positive gay men as fundamentally different from one another. This is a mistake, noted Sigma Research’s Ford Hickson in an address to a UK sexual health conference in March. What most often distinguishes positive and negative guys is not ethics or behaviour, but bad luck.

“HIV risk is widespread. It is not the case that a small group of hardcore risk takers account for the new infections,” said Hickson. “The transmissions that occur over the next year will be the unlucky ones in a large population each taking a few risks.”

Finally, he follows the lead of last week’s Xtra interviewee, Bob Watkin, the outgoing Chair of the HIV and AIDS Legal Clinic of Ontario (HALCO), asking readers to get “angry and loud.”

As Justice Cameron of South Africa told those assembled at the Canadian HIV/AIDS Legal Network’s recent symposium, “some of the Canadian cases are so outrageous, I have wondered why there weren’t protestors outside the courtroom with t-shirts and placards and activists shouting inside the court room. Have you lost your activist fervour?”

Cameron is right. We need to rekindle the queer rage and sense of injustice that fuelled historic LGBT protests, from the response to the bathhouse raids, to the efforts of Gay CourtWatch in the eighties to protect gay men busted on sex-related charges, to the beginnings of the original AIDS activist movement.

And we need a coalition of negative, positive and untested queers and allies to carry out this effort. Criminalization is an extreme manifestation of HIV stigma—and it shouldn’t be only people with HIV who put themselves on the line to fight it. With tools ranging from placard and megaphones to Facebook and Twitter, we need to combat the abuses of the police, the justice system and the media, and demand access to appropriate testing resources and consistent and high-quality sex education for all, regardless of HIV status.

Kudos to Syms, and to Xtra‘s editorial director, Matt Mills, for this piece: the best I’ve seen yet on the issue as it relates to gay men in Canada (and light years ahead of how New Zealand’s gay press is dealing with the issue).

Read the full piece on Xtra.ca.

Canada: ‘Enough, this is it, no more’ says advocate

Today, Xtra.ca has an extraordinary interview with Bob Watkin, the outgoing Chair of the HIV and AIDS Legal Clinic of Ontario (HALCO), that illustrates just how oppressed and under seige some HIV-positive Canadians (particularly gay men knowledgable about the law) are feeling about the approach of the criminal justice system to HIV non-disclosure before sex.

He is angry. So angry that he makes some pretty radical statements, including attacking his own!

One of those things [I disagreed with] is the way HALCO’s Ontario Working Group on Criminal Law and HIV approached the issue of HIV criminalization. Its position that criminalization — criminal charges against HIV-positive people for failure to disclose their serostatus to sex partners — may be called for in some instances is anathema to me. I will not accept it or agree with it.

I’ve read the Working Group’s position statement several times (and know and respect many of the people involved in the Group), and I can’t see anything in it that supports criminal charges for non-disclosure. It’s main message is: “The criminal law is an ineffective and inappropriate tool with which to address HIV exposure.”

He also suggests that anyone accused of non-disclosure engage in a one-person act of civil disobedience.

I’m suggesting to HIV-positive people that, if they find themselves charged in connection with failure to disclose allegations, they exercise their legal right to refuse to give statements that could end up being used against them in criminal court, that they should no longer cooperate with anyone, anywhere, anytime, or answer any questions about their sexual conduct…I’m not suggesting that anyone act irresponsibly. What I’m saying is it doesn’t matter what your actions are.

That this interview appears in a national gay forum, rather than one solely aimed at HIV-positive individuals, is remarkable (and brave not just of Bob Watkin, but also Xtra‘s editorial director, Matt Mills), but also somewhat problematic. If the pattern follows that of the UK, the majority of HIV-negative gay men support prosecutions, and even amongst HIV-positive individuals the sides are not clear-cut. Hence the rather strong comments (two so far, but it’s only just been published) from readers.

There’s no doubt in my mind that Canada (and Ontario in particular, where non-disclosure is now being charged as attempted murder ) is the front line in the fight against the criminalisation of HIV non-disclosure, exposure and transmission. What happens there may well determine the future for many other wealthy, low-prevalence countries with similar legal systems. The lines in the sand have been drawn, and Bob Watkin (and Xtra – which covers this issue almost every week: see also ‘Finding a way out of the HIV criminalization loop’ from September 10) is issuing a call to arms.

Below are highlights of Bob Watkin’s interview with Matt Mills.

I cannot condone in any way the conduct of anyone that results in someone else being infected. But there is no justification at all — anyway, anywhere, anyhow — for the criminalization of HIV and AIDS.

[…]

What led us to this point is an abject failure of the public health system and its proven inability to deal with a chronic long-term disease, HIV…It may be very difficult for people to accept being locked up by public health but it’s much better to be locked away, treated and educated in a medical setting, than to be locked in a prison.

[…]

The charges boil down to allegations. There is no other evidence that is really relevant. In all of these situations, no one disputes that the sex occurred. Two people make an irresponsible decision, one of them happens to be HIV-positive. Only one of them is absolved and that just isn’t right.

All this has created an environment in which people are not getting tested. They are afraid to know. People who have means are leaving the country, getting tested elsewhere and in fact getting treatment elsewhere, so they don’t leave evidence of their HIV status.

We as HIV-positive people have to say, “Enough, this is it, no more.” Unless we start saying that as a group we’re just going to find our lives become more and more and more dreadful.

Switzerland: New study examines every criminal prosecution; finds Swiss law discriminatory

A new and important study of criminal HIV exposure and transmission cases in Switzerland was published yesterday.

Update: An English-language version of the Swiss AIDS Federation’s six page summary is now available. Download the pdf here.

With the support of Swiss National Science Foundation (see the press release in French and German) and the Swiss AIDS Federation (AIDS-Hilfe Schweiz/AIDS Suisse Contre Le SIDA), researchers Kurt Pärli and Peter Mösch Payot examined 39 individual cases dealt with in 51 separate cantonal (lower and higher) and federal court hearings between 1990 and 2009.

Of the 27 accused where country of origin was known, 11 were born in African countries; 9 were born in Switzerland; 4 were born elsewhere in Europe; 2 were born in Asia and the near East; and one was born in the US.

Three cases did not involve sex. One case involved a doctor who disclosed the HIV-positive status of one of his patients; another case involved the Red Cross and contaminated blood; and the third one involved biting.

The remaining 36 cases involved sex – 31 heterosexual sex, and five sex between men. All but three of these 36 sexual cases involved consensual sex (as opposed to rape or sexual assault).

[Note: the only English-language report so far gets this wrong, saying that all 36 cases took place with the informed consent of the victim. That’s the problem with laws like these: in this case “consensual” means both parties agreed to have sex, and not that the HIV-positive partner had disclosed prior to sex.]

Admittedly, it is a bit complicated, since it is possible to be prosecuted for consensual, unprotected sex with disclosure under Article § 231 (spreading of dangerous diseases). In 21 cases, this law was used. Consequently, in more than half of the convictions there was no transmission of HIV, simply ‘HIV exposure’. Most prison sentences ranged between 18 months and 4 years, plus a fine of up to CHF 80,000 (c. €53,000) as compensation to the ‘victims’. The report authors point out that these sentences are longer than for other (non-HIV-related) ‘crimes’ charged under this statute.

Below is the table of cases (and scenarios discussed in court) adapted from the report.

Unfortunately, the impressive 149-page paper (complete with comparisons with other jurisdictions) is only available in German (this is the link to the complete pdf; 1.4MB ). A six-page fact sheet from the Swiss AIDS Federation summarising the findings is also available in German (and now English).

The authors conclude by recommending the repeal of Article § 231, because, they argue, the law is discriminatory by unfairly placing 100% responsibility on the HIV-positive partner which is in direct contradiction with public health policies.

[Many thanks to my native German-speaking partner, Nick, for helping me understand the paper.]

US: Padieu case gets the 20/20 treatment; phylogenetic analysis totally misrepresented

The case of Philippe Padieu, the French-born Texan found guilty in May 2009 on six counts of aggravated assault with a deadly weapon and sentenced to 45 years for five counts and 25 years for the remaining count – all of which run concurrently – was featured last Friday night on US ABC TV’s tabloid-style news magazine, 20/20.

Five and half million viewers watched as Mr Padieu faced trial by media yet again. All six parts of the one hour show (actually 39 minutes minus commercials) are available to watch online.

Part 1: Women recall HIV criminal’s allure
Part 2: HIV diagnosis rocks women’s lives
Part 3: Women take matters into own hands
Part 4: HIV serial dater faces victims in court
Part 5: Man convicted of HIV crime speaks
Part 6: Women want case known to protect others

It’s basically sold as the story of a group of scorned women uniting to put Mr Padieu behind bars, summarised beautifully by the accompanying story on the ABC news website headlined, ‘How Women United to Stop HIV-Positive Man, Women’s Horror at Diagnosis Replaced With Mission: Stop Man From Infecting Others.’

There’s so much I could say about the show, which is something of a milestone in criminal HIV transmission reporting in the mainstream media, but I’m going to limit my comments about the very worrying misrepresentation of phylogenetic analysis as ‘proof’ that Mr Padieu was the source of all the women’s HIV infection. Perhaps blog readers could fill in the comments sections with insights and criticisms of their own about this programme.

[Update: Catherine Hanssens of The Center for HIV Law and Policy has some terrific comments and insights in her Sept 29th blog post.]

In Part 4 of the show, presenter/journalist Elizbeth Vargas says that it was Mr Padieu’s “own DNA” that proved he was guilty. But phylogenetic analysis is all about testing the genetics of HIV, not the individual. They then showed one of the US’s foremost experts in HIV forensics, Dr Michael L Metzker, of Baylor College of Medicine, Houston, Texas, who testified for the prosecution that Mr Padieu’s virus was extremely similar to that of the six women. Except here he says definitively that Mr Padieu was “the source” of the six women’s HIV. I’ve written about the limitations of phylogenetic analysis many times: the issues are summarised here.

In the final part of the show, we are introduced to ‘Lisa’ who dated Mr Padieu in 1997, and was diagnosed HIV-positive that same year. The show gives Dr Metzker a sample of Lisa’s blood and he says that “preliminary analysis” suggests that Mr Padieu was the source of all seven women’s HIV infection. The show concludes that Mr Padieu “gave Lisa HIV in 1997” and goes on to suggest, without a shred of evidence, that he had been diagnosed earlier than 2005 and knowingly infected Lisa and possibly hundreds of other women.

I’m extremely disappointed in Dr Metzker for totally misrepresenting what phlyogenetic analysis can prove. It is impossible to conclude, given the many limitations of phylogenetic analysis, that Mr Padieu infected Lisa in 1997. It is, in fact, just as possible that Lisa infected Mr Padieu.

I don’t expect 20/20 to explain the science (in fact, I expect them to get it wrong), but I do expect Dr Metzker, who is (was?) considered to be a respected scientist, to be less definitive about his conclusions. Maybe Dr Metzker would like to explain how he could be so sure – it would be very helpful to know if he has developed new, as yet unknown, techniques in phylogenetic analysis that can definitively pinpoint timing and direction of transmission.

US: Gay Iowa man who faced 25 years for HIV exposure released from jail (updated)

Update: 17th September. Nick Rhoades was interviewed by Lynda Waddington in the Iowa Independent. He was released last Friday (11th) following a reconsideration hearing that had been allowed by District Court Judge Bradley Harris during Mr Rhoades’ sentencing.

He is courteous and remorseful to the complainant in his case.

“There is no denying the fact that there was a victim involved and that [this] derailed his life for several months of uncertainty,” said Rhoades, referencing the consensual encounter he had with another man in early summer 2008 that led to his ultimate conviction.

“It’s something that I think anyone who is infected has been through. It’s frightening — not only for him, but for his family and friends. It disrupts everything in your life while you are going through that time of just not knowing. It can be terrifying. I know what it was like, and I never would have wished it on anyone else. So, I do understand exactly why he would feel the way that he did and does.”

But he also questions the 25 year sentence handed down four months ago that gave him “a taste of prison”.

“When compared to other crimes and other laws on the books, it seems [my sentence was] a stiff penalty — especially considering the fact that it wasn’t considered a violent crime, that it was a consensual situation between two adults and that there was no infection [of the victim] showing up to this day,” he said. “It does seem that 25 years is excessive to me.”

He also says that although he has been humiliated by his HIV status being plastered all over the media, it is also somewhat liberating.

“It is the most stigmatized medical condition that I can think of,” said Rhoades, adding how humiliating it was for his status to be “strewn across the media” and become fodder for the gossip mill….“In some ways this has been liberating,” Rhoades said, indicating that before the court case he had only openly shared such private portions of his life with family and close friends. “I’m not at all proud and I do take responsibility for my own actions and mistakes. But there is no denying that it is all out there now.”

Original post: Sept 16th. Breaking news. An HIV advocate working to release Nick Rhoades, 34, from prison after he was sentenced in May to 25 years for HIV exposure following a one-night stand with another man, has just informed me that Mr Rhoades is out of jail!

The advocate, Donald Baxter, tells me in an email:

We wrote letters to the judge and something must have clicked—his “victim” wasn’t even allowed to give a victim’s impact statement. Nick still has a long hard row—five years probation, sex offender registry, unsure career future/path. But at least he’s not stuck in jail for 25 years.

Mr Baxter was co-incidentally featured in the Iowa Independent yesterday, arguing against Iowa’s draconian HIV-specific laws.

“I think the law we have here is a sledgehammer that is mostly looking for a thumbtack. I think the latest thumbtack was Nick Rhoades,” Baxter said in reference to a Black Hawk County case earlier this year where a 34-year-old man was sentenced to 25 years in prison following a one-time consensual encounter that did not result in transmission.

“I get no impression from him other than the fact that he is probably a 34-year-old man who is not a paragon of responsibility. He obviously has had some substance abuse issue, which is actually pretty common in the gay community. He is not a criminal, and his sentence angers me on a couple of fronts. He’s probably never transmitted HIV to anybody, let alone the person who made this complaint against him. As a taxpayer in the state of Iowa I also realize that we are probably spending between $65,000 and $70,000 per year to keep him behind bars. That pisses me off. That would piss me off if I weren’t HIV positive.”

I’ll update again with more details when I get them.

US: Georgia judge branded ‘too lenient’ after 18 month sentence for cop biter

An Atlanta judge who sentenced an HIV-positive man to 18 months in prison after pleading guilty to aggravated assault and battery for biting a policeman has been branded too lenient.

The assistant district attorney had recommended a “more appropriate” 15 years because during the bite the man told the cop, “I have AIDS…you are going to die”.

In a long analytical article that appeared in last week’s Atlanta Sunday Paper, not once is there any mention of the lack of possiblity that HIV could have been transmitted during the bite. Instead, the article takes it for granted that the biter’s words were a literal and real threat – as real as a shooting or stabbing.

Tom Clegg, a former DeKalb County assistant district attorney who [previously] prosecuted [the HIV-positive man], who is deaf, [said of Fulton County Superior Court Judge Marvin] Arrington’s sentence… “I think it is very lenient, especially in light of [the] comment, ‘You are going to die.’ Whether he succeeded in infecting him or not, 18 months in jail is a gift.” Clegg says the assistant district attorney’s recommendation of 15 years with six to serve was more appropriate. “What if he had shot the cop? What if he had stabbed the cop? Frankly, I think most police officers would rather be shot than to have to suffer having a terminal illness,” he says. “The sentence is extraordinarily lenient.”

As is typical of these cases, the article also focuses on the pain, worry and anti-HIV drug side-effects that Officer Andrew Fincher suffered following the bite.

During the past year, Fincher, who tests negative for the disease, has endured a harsh HIV drug regimen, which Grady Hospital’s Dr. Jeffrey Salomone says was administered as a precaution. While Fincher suffered through drug side effects including nausea, diarrhea and extreme fatigue, always worried that the next test would show he had HIV, he willed himself to look forward to the day when the offender, [man’s name], 42, would be sentenced to a long stay in jail.

However, Judge Arrington, despite another article in the same paper claiming he is far too liberal to serve as a judge, did not reduce the sentencing due to his understanding of the reality of the miniscule risks of HIV transmission in this case. Neither was it because he appreciated the fact that in moments of stress and fear, people with HIV sometimes feel they have to use the stigma of HIV as a weapon to defend themselves, even whilst knowing that HIV itself is no more effective than a water pistol when used as an actual weapon.

Rather, in an email to the paper, the judge defends the 18 month sentence by claiming that no credible evidence was presented about the HIV-related aspect of the case.

“The State reported that when the defendant bit the officer, the defendant screamed something to the effect that he had full-blown AIDS and the officer was going to die (the transcript is not yet prepared so this is a mere approximation). Defense counsel cast doubt on that statement because there is no mention of any such statement in the police report or any of the discovery packet. A statement of that magnitude, defense argued, would have surely been included,” says Arrington via e-mail.

So, Judge Arrington ignored that fact that the man had HIV and sentenced him as he would have an HIV-negative cop-biter.

That, I believe, is ultimately fair; and that kind of equal treatment (regardless of the reasons for it) is what I ask of courts and judges everywhere.

Update: October 4th. Judge Arrington has written a two page letter responding to the paper’s criticism, which has been rebuked by the editor.