AIDS rape conviction upheld


An article in Saturday's editions of The Sun incorrectly identified Julia Doyle Bernhardt, the assistant public defender who handled the appeal of Dwight R. Smallwood.

The Sun regrets the error.

A man who tried to rape a woman, knowing he is infected with AIDS, is guilty of attempted murder, Maryland's second highest court has ruled.

The Court of Special Appeals upheld the conviction of Dwight R. Smallwood, who was found guilty of second-degree attempted murder after he admitted that he knew he had AIDS when he attempted to rape a woman in Prince George's County on Sept. 28, 1993.

The victim has not tested positive for the human immunodeficiency virus (HIV), which causes AIDS, according to sources on the court.

Smallwood, 19, of the 3500 block of Temple Hills was sentenced to life in prison for attempted first-degree rape and to concurrent terms of 30 years for attempted second-degree murder and assault with intent to murder.

Smallwood appealed, arguing that he never demonstrated an intent to kill, a prerequisite for the murder-related convictions.

But in a 2-1 ruling, the court said Thursday that because doctors told Smallwood he had acquired immune deficiency syndrome in 1991 and social workers told him to practice safe sex in 1992, there were sufficient grounds for Prince George's Circuit Judge C. Philip Nichols Jr. to convict him of both murder-related counts on Oct. 11, 1994.

In his nine-page opinion, Judge John J. Bishop Jr. wrote that although Maryland's appellate courts have not addressed the issue, other states have upheld similar convictions.

Texas courts upheld the attempted murder conviction of an AIDS-infected inmate who spit on a prison guard. And courts in Indiana upheld the attempted murder conviction of a patient who scratched, bit and spit at police officers trying to prevent his suicide, Judge Bishop noted.

"The trial court reasonably inferred that a natural and probable consequence of an HIV-infected assailant attempting to rape his victim, without using a condom, would be the transmission of the deadly AIDS virus," he wrote.

Ronald A. Karasic, Maryland's deputy public defender who had appealed on Smallwood's behalf, declined to comment yesterday, other than to say there's been no decision on whether to ask the Court of Appeals to review the case.

The public defender has 45 days to appeal.

Maryland Attorney General J. Joseph Curran Jr., whose office defended Smallwood's conviction, said the ruling means prostitutes who know they are HIV positive and have sex with unwitting victims could be convicted of attempted murder, as long as there is proof the prostitute knew of the infection and the need to use a condom.

"As we read this case, a prostitute who has knowledge of his or her HIV, has knowledge of its transmission and knowledge of the need for safe sex, it's very possible in that situation you can infer attempted murder," Mr. Curran said.

He said the ruling also represents a victory for prison guards, police officers and paramedics who work with the HIV-infected in often hostile environments.

"If the HIV-infected person on the street or in a prison is thinking about spitting upon, or scratching someone in a custodial situation, there's now an attempted murder charge that he has to think about," Mr. Curran said.

Baltimore police Detective Gary McLhinney, president of the Baltimore City Fraternal Order of Police, Lodge 3, said he knows HTC of three police officers now periodically tested for AIDS because they have come into contact with blood or been accidentally punctured with needles carried by AIDS-infected suspects.

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