Alex Blaze

Another out of control HIV prosecution

Filed By Alex Blaze | June 11, 2010 12:00 PM | comments

Filed in: Politics
Tags: bioterrorism, Denver, HIV/AIDS, Michigan, o'kelly, prosecution, prosecutor, transmission

I posted a few months ago about a poz Michigan man charged under anti-terrorism laws for biting someone (biting people isn't cool, but it's not terrorism), and the charges were dropped this week by a judge because they didn't fit the definition of "bioterrorism."

Now a poz man in Colorado is being prosecuted for spitting on someone:

O'Kelly is charged with Criminal Attempt to Commit Assault in the Second Degree. The charge details that the "assault" was committed with "infected saliva," which it describes as a deadly weapon. O'Kelly "unlawfully and feloniously attempted to cause bodily injury to Jason Arb, by means of a deadly weapon, namely, infected saliva," the report reads.

Colorado State Statutes define "deadly weapon" mostly by the manner in which the "weapon" is used or intended to be used and whether or not it is capable of producing death or serious bodily injury.

Saliva from someone who's HIV+ isn't capable of spreading the virus. This is what we used to make fun of Bill Frist for... now prosecutors don't know how HIV is spread. Couldn't they have been bothered to look up basic facts on HIV before filing charges?

It's not just the prosecutors, but the alleged victim of the spitting who don't seem to know much. It seems like he wouldn't have filed a complaint if O'Kelly wasn't positive:

According to the police report, Jason Arb, a technician with the Rocky Mountain Offender Monitoring System, arrived at the home of Wiliam O'Kelly to install a monitoring system at O'Kelly's home for a drunk driving offense. During the visit, O'Kelly objected to the price of the system and told Arb to leave the house. Arb said he would have to report the information to O'Kelly's probation officer. The two argued and O'Kelly reportedly spit in Arb's face. Later, upon speaking with O'Kelly's parole officer, Arb learned O'Kelly was HIV positive, at which point he filed a formal complaint.

The prosecutor says it's all about intent:

Kimbrough said central to the case is the mental state shaping the altercation. What was the intent, belief, knowledge in play? she said. That's a main factor when "we look at cases and try to determine the appropriate charges."

Maybe I'm reading the definition of "deadly weapon" from the Colorado penal code incorrectly, but it looks like it's about both intent and the actual ability of the weapon to cause death:

(e) "Deadly weapon" means any of the following which in the manner it is used or intended to be used is capable of producing death or serious bodily injury:

(I) A firearm, whether loaded or unloaded;

(II) A knife;

(III) A bludgeon; or

(IV) Any other weapon, device, instrument, material, or substance, whether animate or inanimate.

Moreover, I have to wonder what evidence Kimbrough has that O'Kelly thought he could give people HIV with his spit. People living with the virus usually aren't stupid enough to believe such a silly thing.

Since he's been charged with a class 4 felony, O'Kelly faces 2 to 6 years in prison for spitting on someone. We're already living in a police state, depending on who you are.

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This is utterly ridiculous. Surely it'll get thrown out since you can't catch HIV from spit. *facepalm*

Fear is a powerful ally- so is ignorance, apparently.