This article was originally published at Michigan Messenger and is republished here in partnership with Michigan Messenger and the Center for Independent Media.
An HIV-positive Macomb County man is
facing charges created under Michigan’s 2004 terrorism laws for biting
another man in a neighborhood scuffle. That, HIV advocates, state
lawmakers and legal experts say is “cowardly” and “nonsense” and
increases ignorance and stigma surrounding the virus.
State Rep. Mark Meadows, who
chairs the House Judiciary Committee said in an interview he does not
believe the legislature had the neighborhood fight situation in mind
when it drafted the terrorism laws. The Democrat from East Lansing also
said he thought the prosecution was “silly.”
“Is this a dangerous instrumentality? It’s like saying that because
I breathed on you and I have tuberculosis and we are fighting, that
somehow because I have this disease it suddenly becomes more than just
that I have this disease,” said Meadows, a former assistant attorney
general. “The other charges are more than sufficient to deal with the
In the end, Meadows believes that the circuit court judge will toss out the terrorism charge, which he said was “a stretch.”
A fight among neighbors
The case arose out of an Oct. 18 fight between 44-year-old Daniel
Allen and his neighbor Winfred Fernandis Jr. What happened that day is
According to a report from Clinton Township Police Department,
Fernandis said Allen jumped him without provocation when he went to
retrieve a football neighborhood kids accidentally threw onto Allen’s
yard. Fernandis, according to the police report, said Allen “hugged up”
to him and began to bite him. Fernandis suffered a bite wound on the
lip so severe, police say, it went all the way through the lip.
Fernandis sought medical treatment and the wound was sewn shut.
Allen, however, alleges that Fernandis, his wife Denise and
Fernandis’ father assaulted him, and he does not recall biting the
younger Fernandis. He too sustained injuries during the incident, and
his lawyer during a Nov. 2 hearing presented 37 photographs of
injuries, including bite marks to Allen’s body. Allen and his attorney
maintain Allen was the victim of a hate crime because Allen is gay.
Since the incident, Allen has filed a personal protection order against
the Fernadis family and a criminal complaint with the township police.
Following the incident, police were called in and after a brief
investigation, placed Allen under arrest and charged him with two
crimes: aggravated assault, a misdemeanor charge which carries a
punishment of up to one year in jail and/or $1,000 fine and assault
with intent to maim, a 10-year felony.
Macomb County Prosecutor Eric Smith refused to return multiple messages left for him. Allen’s attorney, James Gallen, did not return calls.
HIV Becomes the Feature of the Story
The story, a man severely biting another man, drew the attention of the Detroit-area media, and Fox 2 News soon had Allen on video admitting he was HIV-positive.
That admission lead Smith, a Democrat, to say he would seek
additional charges. On Nov. 2, Smith’s office amended its complaint to
add a charge of possession or use of a harmful device. That law is a 25-year felony and was part of a 2004 package of terrorism laws created by the legislature in the wake of the Sept. 11, 2001, attacks.
The law makes it a crime to have a harmful device, which is defined
as either biological, chemical, electronic or radioactive. Smith’s
office is arguing that Allen being infected with HIV was “a device
designed or intended to release a harmful biological substance,” and
that his bite was thus an attempt to spread HIV.
Smith’s office is relying on a Michigan Court of Appeals
ruling in a case of an HIV-positive, and hepatitis B infected prisoner
who spit at prison guards during an altercation in the prison. In that
case, People v. Antoine Deshaw Odom, the three judge panel found:
We therefore conclude that HIV infected blood is a
‘harmful biological substance,’ as defined by Michigan statute, because
it is a substance produced by a human organism that contains a virus
that can spread or cause disease in humans.
The three judge panel was silent on whether the hepatitis infection
weighed in as a factor as a harmful biological substance. As a result
of this finding, the court upheld a stricter sentencing score for Odom.
In 2008, the Michigan Supreme Court refused to hear an appeal on the matter, upholding the Appeals Court decision.
According to The Macomb Daily, the judge said:
“[Allen] knew he was HIV-positive, and he bit the guy,” Davis said from the bench. “That on its own shows intent.”
Criminalizing HIV with traditional, non-HIV specific laws not new
HIV experts say it is a near impossibility to spread HIV through a human bite.
The Centers for Disease Control and Prevention
in Atlanta said it has one case on record where it believes HIV was
transmitted through a human bite. But the case, out of South Carolina,
is of an older man who claims to have had no other risk factors except
being bit by a sex worker who was infected with HIV. That sex worker
claims the man refused to pay for her sexual services, and she bit him
in an attempt to get her money.
But, even allowing for that case, experts say there are other
factors to consider. In 2003, the most recent year available for
statistics on the CDC website, about 1 million people in the United States were living with HIV/AIDS,
putting the prevalence of HIV transmission via biting at .000000001
percent. In contrast, an online search of news reports finds hundreds
of media reports of biting incidents involving HIV-positive people.
“Even if you accepted that as a transmission case,” said Catherine Hanssens, executive director of the New York City-based Center for HIV Law and Policy.
The charges against Allen, she said, simply aren’t warranted. “It’s
just nonsense. It’s cowardly. It’s the kind of thing that keeps kids
[with HIV] out of day care and camps and allows kids [with HIV] to be
kicked out of karate case.”
She said cases like Allen’s are proof that the nation is failing to
address the epidemic with common sense. “It’s continuing the boogey-man
characterization of people with HIV,” she said.
“This troubles me very much,” says Lambda Legal HIV Project Director Bebe Anderson.
“I think it is a very dangerous thing for prosecution to proceed with a
charge or an enhanced charge based on a person’s HIV status. Typically
these prosecutions are based on ignorance about HIV transmission. These
prosecutions add to ignorance in the general public about HIV
transmission, and they certainly add to the stigmatization of people
living with HIV.”
The move to charge Allen with terrorism-related charges, Anderson said, was deeply troubling.
“Its a very dangerous notion that somebody who has a physical
condition such as H1N1 or HIV or some other virus, that, that person
then can then be charged with having a harmful biological substance and
then if they are out there in contact with other people and they are
putting other people at risk it is troubling.” said Anderson. “That’s
not something that is legitimately criminalized and these prosecutions
start us in that direction in a very dangerous way, I think.”
Anderson said to her knowledge this is the first time she has seen a
terrorism law used in connection with an HIV-infected persons
prosecution. She said she believes the terrorism law is being
misapplied, and that Allen’s defense is going to have to make basic
information about HIV and its transmission clear to the courts.
“I think it is very important to try to get in front of the judges
and the prosecution accurate information about HIV,” Anderson said. “I
think what happens is that these prosecutions are fueled by ignorance,
then unfortunately that ignorance gets compounded because the judge
makes a ruling or the jury makes a ruling based on fear and myths of
HIV and not the actual risk posed by particular conduct.”
Hanssens and Anderson said that the trend of charging HIV-positive
people with charges based on their HIV status is nothing new, but both
say there has been an increase in cases in recent years.
“What seems new is there seems to be a sudden uptick in the number
of these type of cases in the last year or so,” Anderson said.
HIV activist Mark Peterson, from Michigan POZ Action said he is also concerned about this case. In an email statement to Michigan Messenger, Peterson said:
“This sort of conflict is sad anytime it happens. At
the same time, charging a person with possession or use of a harmful
device simply because they have an infection, especially where the is
NO scientific evidence of HIV ever being spread this way, is just
another example of how our laws are based on fear and ignorance and not
science…Its interesting to see how the impact of stigma and homophobia
that still surrounds HIV shows up in our legal system.”
And Meadows is not the only legislator sounding off on the case.
State Sen. Hansen Clarke,
a Detroit Democrat and a vocal advocate on behalf of people living with
HIV/AIDS, said in an interview that the charges are out of proportion.
“I think we need to put this in perspective in light of the tragic
events at Fort Hood,” Clarke said. “That should be investigated as
terrorism. The magnitude of the instances is not even similar.”
He said the impact of such a prosecution was “harmful” to addressing HIV stigma in the state.
“I don’t think our legal system should treat everyone that has a
disease that could be communicated to some one else differently,”
State Rep. Rick Jones, a Republican from Grand Ledge who sits on the Judiciary Committee, said the terrorism charge was likely not appropriate.
“If it was a fight and people were biting each other I would not
think that is an appropriate charge,” said Jones, a former Eaton County
sheriff. “I think you should able to be charged with attempt to
transfer HIV if it can be shown in a court of law you made a genuine
attempt to transfer [it].”
Changes in law deemed necessary
While the use of non-specific HIV laws to criminalize those infected
is not a new trend, neither are the laws to criminalize HIV. Michigan
passed a law in 1988 which makes it a felony for a person who knows he
or she is infected with HIV to engage in sexual penetration, however
slight, without disclosing that status first.
In April, Michigan Messenger highlighted the story of Michael Holder who spent eight years in a Michigan prison
for allegedly failing to disclose his HIV-status to his partner. The
Iowa Independent, Michigan Messenger’s sibling site, has closely
followed the criminal prosecution and conviction of Nick Rhoades, who
was convicted of failing to disclose his HIV status and sentenced to 25 years in prison. He was released in September and is serving a five-year stint on probation after a judge reconsidered his harsh sentence.
Federal law mandated all states to certify each had a law in place
to criminally prosecute people with HIV who did not disclose that to
people before engaging in behavior which might spread the virus. That
mandate was made in 1990 and by 2000 all 50 states had certified.
But two decades into the epidemic, with science getting a better
understanding of HIV and how it is spread, lawmakers are beginning to
say the current laws need to be revisited.
Jones said during an interview that if some one with HIV spits at a
police officer while screaming ‘I hope you get AIDS,’ that that person
should be charged with a crime, because that shows an intent, even if
the mode of possible transmission via spitting “would be a very
difficult way to transmit” the virus. He said the intent to spread the
disease is the issue, not necessarily the mode.
Jone, who also once served as a jail administrator, was tasked with
knowing universal precaution rules inside and out. He also added that
the law should be expanded to include other diseases, such as
tuberculous and hepatitis.
Jones discussed Michigan’s 20-year-old disclosure law which makes it
a crime for an HIV-positive person to engage in sexual penetration,
however slight, without first disclosing their HIV infection. He was
surprised to learn the law did not address sharing needles, but
including activities that cannot spread HIV, such as sex toys. Asked if
he believed it was time to revisit the disclosure law, he said: “Yes.
Yes, I would agree with that. But I might add things like needle
sharing, and I might subtract things to make more of an intent crime.”