DISPATCHES


  

        




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Here's a small sampling of criminal-exposure laws, state by state:

In Arkansas, it's a felony to use a dildo on someone without first telling them you're HIV-positive. In Iowa, exposure is defined only as "intimate contact" with no further clarification. And in Indiana, "A person who knowingly or intentionally in a rude, an insolent, or an angry manner places human blood, semen, urine or fecal waste on another person" has committed a felony if that substance has HIV in it. In some states, spitting while HIV-positive is illegal.

As a result of the randomness, the laws have ensnared people engaged in extremely low-risk activities, and can be applied selectively by local prosecutors who might be more interested in enforcing morality than in statistics about transmission rates. One apparent example of this occurred in Georgia last year, when a fourth-year med student in Atlanta named Garry Wayne Carriker was sentenced to ten years in prison for having oral sex with another man while HIV-positive. When a reporter from the Southern Voice, a gay newspaper, asked the prosecutor whether Carriker had given or received the blowjob (a significant distinction — the CDC names no documented cases of HIV transmission to anyone who has received a blowjob), the prosecutor cringed and said, "I didn't get into those kinds of details."

A similar case took place a few thousand miles to the west, in a town called Pahrump, Nevada, where a thirty-two-year-old substitute teacher named Brian Lepley was convicted of performing oral sex on a teenager in 1997 without disclosing his HIV-positive status.


Pahrump, population 25,000, is an isolated, conservative community nestled in the desert sixty miles west of Las Vegas. RV dealers line the main commercial strip, and a shooting range offers family classes in proper gun operation. Its biggest celebrity is Art Bell, Sr., the founder of a popular syndicated radio talk show about paranormal activities.

The teenager Lepley orally serviced was Art Bell's son, sixteen-year-old Art Bell Jr. (In Nevada, age sixteen is the age of legal consent).

In Arkansas, it's a felony to use a dildo on someone without first telling them you're HIV-positive. In Iowa, exposure is defined only as "intimate contact" with no further clarification.

Lepley would occasionally get beer and weed for Bell Jr. and his friends, one of whom was eighteen-year-old Stephan Ellison. They'd all go down to a local pond at night to get high and go skinny-dipping. One night, while driving Bell home, Lepley asked him if he could give him a blowjob. Bell said yes, though in the subsequent trial he said that he wouldn't have consented had he not been drunk and stoned. Lepley performed oral sex on Bell in his car while parked on a deserted road.

Lepley also had two sexual encounters with Bell's friend Ellison, whom he'd met in a college psychology class they were taking. Ellison later testified in court that he and Lepley had had anal sex twice, once with a condom and once without (Lepley insists he always used protection). Ellison also said that he was unaware of Lepley's HIV status, though in his statement to the police upon Lepley's arrest, he wrote down that Lepley "told me he had HIV but not AIDS."

Ultimately, Bell and Ellison testified against Lepley on charges of sexual assault and criminal exposure to HIV (both of them tested negative for the virus). From court transcripts provided by Lepley, it seems the case rested almost solely on Bell's testimony against him. Under questioning from the defense attorney, Bell even seems to admit that he'd been coached by a lawyer to say that he was "scared" the night that Lepley gave him the blowjob in the car.

"Someone got me to believe that that was the right thing to say," said Bell when cross-examined by the defense. "One of the lawyers."

Herein lies a significant problem with the laws, as Hoffman points out.

"Given that the 'crime' in question . . . takes place in private between individuals in an intimate setting, the facts surrounding any incidence of transmission of HIV, or any potential exposure to HIV, are nearly impossible to prove (as often, there are no witnesses to the events in question), and often come down to a 'he said, she said,' 'he said, he said,' or 'she said, she said' situation. Even if one person supposedly infects another, it is difficult to prove that that person was the source of the infection (the person who contracted the virus could have had other partners during or since the time that the infection supposedly occurred.)"

Finally, since the case essentially relied on Bell's account of what happened, one has to wonder if, living in such a small and conservative community, Bell felt it necessary to publicly disassociate himself from Lepley because of homophobia.


Before the trial, Bell's mother had found a letter her son had written to his girlfriend admitting that he'd hooked up with Lepley. In the letter, Bell seems to imply that he enjoyed the encounter, calling it "fun." Toward the end of his testimony, the defense asked Bell if he had decided to report Lepley to the authorities because his parents had found out about their tryst. "Are you afraid of your dad?" the defense attorney asked Bell.

"No," was Bell's response.

"And you didn't report this as a rape because you were afraid that your father would find out you were gay?" the defense attorney asked.

"No," Bell responded again.

Lepley was convicted and received a sentence of ten years to life. Now forty-one, he's housed in a medium-security wing of Northern Nevada Correctional Center in Carson City.

For the HIV-negative, being unwittingly exposed to the virus can turn a
normally empathetic bleeding heart into a prosecutorial hardliner.

Though Lepley was diagnosed as HIV-positive nearly twenty years ago, he's what's known as a long-term non-progressor; his T-cell counts are high and his viral load remains undetectable. Yet as a prisoner with HIV, he says he faces "ignorance, hatred, stigma — in prison, there is no education program teaching transmission, spread, treatment or prevention," he wrote to me in a letter (his warden felt that a phone interview would be "too disruptive").

Lepley spends his days teaching Spanish to the other inmates. He's also trying to "convert" to heterosexuality as a Jehovah's Witness. "I have four Bible studies and a field-service ministry," he writes. "I study the Bible every day." He keeps in close touch with his adoptive mother, and hasn't spoken with Art Bell Jr. or Stephan Ellison since the end of the trial. Though he's up for parole in 2008, he believes he will not be released. "Let's be realistic," he writes. "I will continue to be a minister and will pioneer."




Should anyone at all be prosecuted for exposing others to HIV? Do the Brian
Lepleys, who engage in virtually no-risk behavior, deserve to be prosecuted?
Or only the Anthony Whitfields, who go condomless with their ignorant
partners? Or not even the Whitfields? Where's the line?

For the HIV-negative, being unwittingly exposed to the virus can turn a
normally empathetic bleeding heart into a prosecutorial hardliner. Poz
magazine's recent story on criminal-transmission laws jumpstarted an
impassioned debate on the website of gay activist Keith Boykin — not exactly a
hotbed of conservative commentary. While his readers argued back and forth
in the comments section, someone under the handle "Chris" jumped into the
fray.

"I just learned today that I am HIV-positive," wrote Chris. "Of course, I am
hurt, but I am crushed by the fact that the person who gave it to me knew
that he had it and did not tell me. We practiced safe sex, and I even asked
him if he had it. HE LIED! I don't know how, but I contracted the disease
from him.

"I feel that a person has the right to determine whether or not he or she
wants to be intimate with someone who is HIV-positive," Chris continued. "No one has the right
to play with a person's life. You'd better believe that the guy who infected me will be
prosecuted."  






  

        







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©2007 Will Doig and Nerve.com

Commentarium (14 Comments)

Jan 25 07 - 10:51am
ted

not an easy issue. it seems clear that hiv positive folk who have unprotected sex without informing their partner of their condition should be treated as severely as a drunk driver, but not as severely as a full on attempted murderer. undoubtedly decades old aids fear has exagerrated the punishment beyond reason; that said, i think that guy is delusional if he thinks all responsibility lies with his partners.

Feb 19 11 - 2:34am
justin keene

yes, Around the U.S. we need to change HIV Sentencing laws, as in Iowa, Criminal Transmission of HIV sentence of 25 years is cruel and unusual punishment. the law is vague. Other states carry lesser time than Iowa does. Iowa's 25 year sentene is excussive.

Oct 26 11 - 3:05pm
Real

Oh, please. The punishment inflicted by the intense, bigotry fueled stigma of society upon any disclosure always far outweighs any words in a penal code. If you want disclosure it will come when it really doesn't matter and the other party most likely will say yes. Obviously most people will say no regardless if a condom is used, they won't even consider it even though it's totally safe with a condom. Those that run away in horrid hatred and terror should be punished by jail time.

Jan 26 07 - 7:36pm
sag

if criminal punishment is necessary, the punishment(s) for both the negative and positive sex partner should be the exact same. how is it fair ( in the absence of lying or rape) to blame one party for inflicting harm on another, while allowing the other party to inflict harm on himself. the negative party obviously has more to lose, so if he engages in reckless behavior, why shouldn't he be punished along with the positive person (who may well assume his partner either is positive or doesn't care about protecting himself)? it makes no sense to me that one can be allowed to engage in reckless sexual behavior as long as one is negative.

Jul 25 11 - 7:53am
Phumy

Exactly my sentiments Sag. My take in this is that the ladies were already positive and were also on the spree to spread the virus only to be surprised. Why on earth would you have a one-night stand with astranger and not use protection?

Jan 26 07 - 7:39pm
sag

up until the 1900's sexually transmitted diseases like syphilis caused death. what was the legal response in the past to a person infecting another with syphillis ( prior to penicillin)?

Sep 20 09 - 1:48am
AL

I have known Anthony Whitfield since 2000. Was and still is one of my dearest & best friends. I had unprotected sex w/him for about 3 years on and off. I am HIV negative. When i heard about the story my family contacted me in tears. I was then living up north, and married. My now ex-husband was and still is in the medical field. I had to tell him, knowing I could have put his career, future and life in danger because of not using protection before knowing my husband. Our divorce had nothing to do w/this situation by the way. All i knew was that the next day i was on my way to Lacey w/family member(s)to the Health Dept. getting my test, assured that i would be positive. How could I not be if what was being "said" was "true"? Yet I couldn't be mad. only @myself for my own responsibility. I had an uncle who passed away from AIDS when i was younger from a partner who cheated, contracted the disease & then gave it to him. So this sort of topic is & has always been very serious and close to me. Anthony contracted the infection from a woman by the name of "Linda", which was never allowed in court. Also a witness by the name of "amber t." has sent him a letter apolagizing for her "statement", saying the prosecuters told her to say that. If i remember correctly, she had other legal issues @ the time. He did not have it in Oaklahoma. He did not have it as early as they were trying to say here. And when he found out, other than his wife, he stopped being sexually active with others. There was so much evidence that was not taken into consideration, because the judge simply would not allow it. Kind of makes you wonder. I truly feel so bad for the unfortunate ones, because i do know the seriousness and effects of this disease, but what happened to him was not justice, it was an example made out of him, out of convenience & an easy target. Eventually the whole truth will be told. I suppose thats why they say" don't believe everything you read or hear". He does not deserve nor will spend the rest of his life in prison!

Apr 28 10 - 1:08pm
Name

Maybe those woman lied maybe not but i will say this, those woman had a choice to have unprotected sex. With that being said it's a 2 way street. Only God and those partys involved know the real truth. Who are you and myself to judge another person.

Aug 23 10 - 2:36am
G

Those women did have a choice to engage in unprotected sex, however, that's not to say Whittfeld shouldn't disclose his status. He is just as responsible as they are and regardless if they didn't use protection or not he's still responsible for not disclosing his status.

Aug 31 10 - 12:23pm
Todd

I have to question what is going on when giving this man 178 years in jail. How is that reasonable? People who have not only attempted murder, but COMMITTED MURDER, have received less harsh sentences. I suppose that Mr. Whitfield should have disclosed his status, and from some of his words, I wonder what his attitude is regarding this matter. I am thinking that he is a very angry person. Yes, a lot of this is the responsibility of every individual. You hear from health professionals and social workers regarding "assume your sex partner is positive"... "always wear a condom"... and the concept of "personal responsibility" is one that seems stressed above all else. So how come when these women who reportedly got HIV from this man are not being held responsible for the consequences? It seems to go against so much of what we are told. Telling someone that you are HIV positive can be an extremely difficult thing to do, yet there are those people who insist that it's very cut-and-dried and it's just something you have to do. Well, I can inly guess where they're coming from, but that attitude makes me very angry. I believe that there is something very passive-aggresssive about saying it, like it's not as hard as it really is. Maybe Mr. Whitfield was engaging in some devil's advocacy when he said to effect that "a person's sexual behavior is their own responsibility, not mine". The judge did not like to hear this, did not like having words with certain irrevocable truth and wisdom being manipulated in this manner and consequently handed down an unreasonably harsh sentence. It's not fair, but then what's fair in life?

Nov 05 10 - 11:05pm
SAMAKINDE

This is interesting, Mr Whitfield and his women are responsible for thier actions, HIV disclosure is a complex and difficult personal matter. but in the context of a relationship not just one night stand or the partying thing as he said. he should even be given a death sentence because that is murdering. For a stable relationship to exist it is built on trust, non disclosure makes the partner vulnerable and puting the partner in a helpless situation .
i believe HIV positivity should be treated like a communicable disease, it should be treated like other viral illness like SARS, and stop going around the social issue of stigmatization.

Feb 19 11 - 2:35am
justin keene

Excussive sentences for Criminal transmission of Hiv need to be changed to lesser time.

Jul 25 11 - 7:47am
Phumy

Those women were responsible for their own lives. Who on earth would tell a one-night stander that they are hiv positive. 100% yes if you are in a relationship with a person but not someone you have just met at a party and they decide to sleep with you. One even wonders if those women were even negative before being careless with this poor guy!