Assault with A Deadly Virus

By Richard Lacayo

The U.S. Army knows the deadly capability of viruses for biological warfare. That may be why military prosecutors are now among the first lawmen in the country to see the AIDS virus as a weapon and its willful transmission as a crime. At Fort Huachuca, Ariz., last week, Private First Class Adrian G. Morris Jr., a clerk-typist at the garrison headquarters, faced a court-martial on charges that include aggravated assault. Reason: Morris allegedly had sex with two soldiers, one male, one female, although he knew an Army screening had shown him to be an AIDS virus carrier.

Similar cases are cropping up in civilian courtrooms. Two weeks ago, Los Angeles prosecutors filed attempted murder charges against Joseph Markowski, 29, accused of selling his blood and engaging in prostitution even though he allegedly knew he was suffering from AIDS. In June, James Vernell Moore, a federal-prison inmate who tested positive for exposure to the AIDS virus and who bit two guards, was convicted by a Minneapolis federal jury of two counts of assault with a deadly weapon: his mouth and teeth. In Columbia, S.C., assault and battery with intent to kill has been added to a rape charge in the upcoming trial of Terry Lee Phillips, a drifter who, prosecutors say, claimed to have AIDS and vowed to spread it before allegedly attacking a young woman.

Some of the charges springing up in courts have a dubious basis in science. There is no evidence that the AIDS virus has ever been spread through saliva. In a case that involves biting or spitting, that can certainly undercut a prosecutor's attempts to prove a charge of attempted murder. A more realistic threat, however, is represented by infected prostitutes or by someone who knowingly sells or donates his or her AIDS-tainted blood. In such cases, what should the law do?

Los Angeles County District Attorney Ira Reiner says the "egregiousness" of Markowski's actions led to the attempted murder charge. California health code provisions that might apply to AIDS carry only misdemeanor penalties. In Fresno, authorities had used that code two weeks earlier to bring misdemeanor charges against an accused prostitute suspected of carrying the AIDS virus. She could get up to 90 days in prison for the alleged violation. Local Prosecutor James Oppliger cannot recall, however, any previous case in which the communicable-disease law has been invoked. Says he: "We're not sure how viable the charge will be."

Other lawmakers might sympathize. A survey project at George Washington University in Washington found that 25 of some 500 AIDS-related bills introduced in state legislatures this year proposed criminal sanctions for conscious transmission of the disease. Florida and Idaho have made it a crime knowingly to expose another person to the virus. The possible penalties include prison terms of 60 days in Florida, six months in Idaho. A similar criminalization measure awaits Governor Edwin Edwards' signature in Louisiana: penalties could range as high as a $5,000 fine and ten years in prison. A new Nevada law requires that anyone arrested for prostitution must take an AIDS- virus test; those who test positive can be charged with a felony if picked up for prostitution again.

Two of the most far-reaching proposals are on Capitol Hill. Controversial bills sponsored by Republican Senator Jesse Helms of North Carolina and Republican Representative William Dannemeyer of California would make it a crime for those in high-risk groups, such as prostitutes, intravenous drug users and men who have engaged in homosexual activity since 1977 (when the AIDS virus is believed to have entered in the U.S.), to donate blood, organs or semen. Penalties would apply, whether or not the accused had tested positive for exposure to the AIDS virus or not.

Some legal experts and public health officials severely downplay the AIDS- related criminality issue. "The cases that have come up are incredible red herrings, freak cases," says Nan Hunter, a staff lawyer for the American Civil Liberties Union. Says Abby Rubenfeld, legal director of the Lambda Legal Defense and Education Fund, a gay legal services group: "This is a medical crisis. We cannot jump to remedies or solutions that make people criminals. It is a hysterical reaction."

Other experts disagree. "No one is pretending to solve major health problems," answers W. Douglas Skelton, chairman of the Georgia Task Force on AIDS, a government advisory body that has recommended that the state legislature consider criminal restrictions. "We just think it is responsible to stop someone who is acting irresponsibly."

Imposing penalties and defining the behavior they are meant to prohibit poses a host of problems for prosecutors and lawmakers. "Criminal statutes must speak with clarity, so that people can at least know if they are putting themselves at risk of prosecution," says Yale University Law Professor Harlon Dalton, co-editor of AIDS and the Law: A Guide for the Public, which will be published next month by Yale University Press. Failure to provide such clarity, he warns, is a "violation of due process."

Legislative vagueness can make convictions difficult. Depending on how such statutes are drafted, prosecutors might have to prove that an accused was both infected and aware of that fact; in many states, however, confidentiality laws forbid the disclosure of AIDS test results without the written consent of the person tested. The prosecution might also have to prove that the accused had not informed partners that they risked infection.

That last consideration has probably spared PFC Morris at least one additional headache. Although Morris also had sexual relations with his fiancee, assault charges were not brought against him in that connection because the woman knew of his positive test results. But he already faces enough AIDS-related travails. If convicted, Morris could spend up to 17 years in the military prison at Fort Leavenworth, Kans.

With reporting by Don Winbush/Atlanta, with other bureaus