By Jessica Anderson, The Baltimore Sun
4:34 PM EDT, September 9, 2012
When police accused an Edgemere man of having sex with a 13-year-old boy, most of the charges were straightforward: soliciting a minor and a related sexual offense, which together could carry up to 30 years in prison.
But Baltimore County prosecutors also accused Steven Douglas Podles of knowingly attempting to transmit the HIV virus to the boy — a seldom-used, and often controversial, charge that carries an additional three years behind bars.
Even as prosecutors prepare their case against Podles, the effectiveness of such laws is being debated by legislators and public health officials from Maryland to California.
During the height of the AIDS scare in the 1980s and 1990s, 33 states — including Maryland — passed laws to criminalize the spread of HIV. And in cases around the nation, some defendants have been hit with attempted murder charges and decades-long sentences.
Now, though, public health advocates say such charges are arcane and ineffective, discouraging people from getting tested and perpetuating stigmas against those with the disease. In recent years, the federal government has modified its HIV/AIDS policy, recommending against HIV criminalization.
"One has to ask if [prosecuting such cases] has any value to public health," said Scott Burris, a Temple University law professor whose research contributed to new national strategies against the spread of HIV. "This doesn't make any difference to HIV prevention."
Although a growing number of critics are arguing against HIV-related charges, many law enforcement officials maintain that such criminal penalties are necessary. Some states have strict laws that equate passing on the virus with using a deadly weapon.
"I don't know that any prosecutors are opposed to the notion [of filing charges] if anyone passes the HIV virus to another and there's no disclosure. It's unconscionable," said Scott Burns, executive director of the National District Attorneys Association.
The charge, however, is seldom used in Maryland and it can be difficult to get a conviction.
Baltimore County State's Attorney Scott D. Shellenberger said he is unaware of any similar cases in the county.
Shellenberger said the charge is not easy to prove. "We have to prove [a defendant] knowingly transferred" or attempted to transfer the virus, he said. "Being able to meet all of these elements, it's a little more challenging."
Still, in the Essex case, prosecutors believe they have enough evidence for a conviction, he said.
Isaac Klein, Podles' attorney, called the charge "outrageous. I guess one way is to overcharge, for my client to plea to something."
When Podles connected with the teen in February, Klein said, his client's intention was to meet with other adults using the mobile phone application, Grindr, which is supposed to be limited to those who are 18 and over.
He added, "even if both of them have [HIV], you can't prove it was from my client."
The criminalization laws, designed to prevent those who are HIV-positive from intentionally spreading the disease and putting others in harm, have been used in high-profile prosecutions across the country. Defendants have been convicted for knowingly spreading the virus, or attempting to do so, through sexual contact or by sharing syringes.
In 1987, an Indiana man was arrested on attempted murder charges after spitting blood at officers; he died in prison of AIDS, while serving a 30-year sentence. In 2008, a Texas man who was HIV-positive was sentenced to 35 years in prison for spitting on a police officer.
The same year, an Iowa man was sentenced to 25 years in prison after a former partner went to police because of his exposure to the virus. The man who was charged told CNN that his viral load was lower from treatment, making the disease almost non-detectable, and that he used a condom, which reduces the risk.
Critics say such prosecutions make people fearful of getting tested and being held liable of knowingly spreading the disease. Those who know they carry the virus are more likely to take precautions to prevent its spread, they say.
"The HIV-specific statutes aren't necessary and serve only to stigmatize and make the epidemic worse," said Sean Strub, who is founder of the SERO Project, a nonprofit that advocates for those with HIV, and U.S. co-chair for the Global Network of People Living with HIV. "Every state has assault statutes and public health statutes that provide for appropriate charges or measures if someone intends to or does harm someone, or poses an imminent risk of danger to himself or herself or others."
He likened HIV-specific statutes to those that would single out individuals based on gender, sexual orientation, genetic makeup or skin color. "It is inherently discriminatory to create different laws for different groups of people," he said.
Burris and Strub point to cases where heavier sentences were imposed on individuals with the virus — which, they argue, heightens fear and discourages others from getting tested. In one common scenario, they said, a couple breaks up, and one partner threatens to file charges against the other who is HIV-positive.
In a July study conducted by the SERO Project, 2,000 people living with HIV were interviewed, and nearly half said it was reasonable to put off testing to avoid potential prosecution. The study also found that a quarter of those interviewed knew others who were reluctant to get tested for the virus due to the same concerns.
Although law enforcement officials around the country continue to bring charges related to HIV transmission, the federal government has recommended shifting away from such policies.
Two years ago, President Barack Obama announced a new National HIV/AIDS Strategy that recommended against HIV criminalization.
"While we understand the intent behind such laws, they may not have the desired effect and they may make people less willing to disclose their status by making people feel at even greater risk of discrimination," the report said.
The report also noted advances in medical treatment. "HIV medications can extend the length and quality of life for infected individuals, and lower the amount of the virus circulating in a person's body, thereby reducing their risk of transmitting HIV to others," the report said.
The Centers For Disease Control and Prevention, meanwhile, advises that "State legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to preventing and treating HIV."
California Rep. Barbara Lee, a Democrat, last year proposed the first piece of legislation to require states to repeal such laws; it did not pass.
But as the federal government has suggested re-evaluating such laws, bills were proposed in the last Maryland General Assembly session to toughen state laws, making HIV transmission a felony instead of a misdemeanor, and calling for a 25-year sentence.
Sen. Norman R. Stone Jr., a Baltimore County Democrat, and Del. C.T. Wilson, a Charles County Democrat, were the bills' lead sponsors. Neither Stone nor Wilson returned calls for comment.
The ACLU of Maryland testified against the proposal. In a statement, the ACLU wrote, "Increasing the HIV specific disclosure law in Maryland to a felony is wildly out of proportion to the possible harm, and is in bizarre and direct conflict with the direction of public health, human rights, and the substantially decreased consequences of HIV disease in the last 15 years."
Instead of sentencing to prison those who might spread the virus, policies should focus on encouraging the public to protect themselves and get tested, Burris said. "Punishing people who don't tell doesn't make sense."
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