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The arrest of a former San Francisco health commissioner charged with knowingly infecting his boyfriend with AIDS has spotlighted the national debate over state laws that allow AIDS victims to be prosecuted for knowingly exposing another person to the virus. Civil rights groups assert that laws in many states are too vague and give prosecutors too much discretion. Prosecutors counter that the laws protect public health, and that privacy concerns are exaggerated. In the California case, Ronald Gene Hill, 46, will become one of the first to be prosecuted under a California law criminalizing the exposure or transmission of HIV by someone who knows that he or she is infected. State v. Hill, No. 2127994 (San Francisco Crim. Ct.). Hill pleaded innocent to the charge at a Sept. 25 hearing. Hill, who was appointed as a health commissioner by Mayor Willie Brown in 1997, was being held last week on $100,000 bail for knowingly transmitting AIDS to his lover, Thomas Lister. Lister alleges that Hill knowingly lied to him when he questioned him about his sexual health. Lister was diagnosed with AIDS in July 2001. Twenty-four states, including Illinois, Florida and New Jersey, have HIV-specific laws, a study by the University of Connecticut Health Center’s Division of Medical Humanities, Health Law and Ethics said. Texas and New York are among the states that do not have HIV-specific laws. ‘Specific intent’ California is one of the few states that impose a more stringent standard of “specific intent,” which requires a prosecutor to prove that the defendant wanted to infect his victim with the AIDS virus. The American Civil Liberties Union, Lambda Legal Defense Fund and a number of civil rights and gay rights groups say that California’s “specific intent” requirement is an appropriate measure that more states should adopt. They say the “specific intent” clause is necessary to shield the vast population of HIV-positive people who normally engage in protected sex and could be subject to prosecution under the broad HIV laws of other states. The criminal HIV laws in most states have three elements, according to Lawrence Gostin, a Georgetown University Law Center professor associated with the University of Connecticut project. A person must reasonably know that he is infected with AIDS; engage in a specific type of behavior like spitting, donating blood or having sexual intercourse; and fail to inform the victim about his disease. Many of the statutes do not require an actual transmission of AIDS to a victim, according to Gostin, who supports civil rights groups opposed to HIV laws without specific intent. He notes that there have been cases against prison inmates with HIV who spat at their guards. “These laws have a perverse effect,” asserted Gostin. “They try to deter people from sex and instead drive the epidemic underground by creating an incentive not to get tested. The punitive approach never works for a disease epidemic like this.” Greg Barge, an assistant district attorney who is prosecuting the case against Hill, said that “specific intent” should not be confused with recklessness or conscious disregard, which require much lower standards of proof. He said California’s law may err in the other direction. “If this law is intended to protect the public, there is so much reckless conduct that can go unpunished,” Barge said. Michael Moore, state attorney for Beadle County, S.D., who recently prosecuted the first criminal HIV case in that state, said privacy concerns raised by civil rights groups are exaggerated. “If you’re HIV-positive there is an added responsibility not to put other people at risk,” Moore said. “The law doesn’t prevent anyone from having sex so long as they disclose their status.” Moore prosecuted a case against a college student whose HIV status was detected at a blood drive. The student had received public health counseling but continued to solicit unprotected sex with an unwitting female student who testified against him in the grand jury proceedings, said Moore. State v. Briteramos (Beadle Co., S.D., Cir. Ct.). Without the state’s HIV statute, Moore claimed that he never would have gotten an indictment because the other possible charges, like attempted murder or assault, all require specific intent. “I would have had to prove that he intended her to get [AIDS] and that he intended her to die,” Moore said. “I don’t think that was the case. I think he just wanted to have sex with her.” There have been only about 300 prosecutions under HIV laws among the approximately 800,000 people with AIDS, according to the University of Connecticut study. McAree’s e-mail address is [email protected].

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