Four groups file brief in HIV-as-terrorism case

Lambda Legal Defense and Education Fund and three Michigan groups who represent or work with HIV-positive individuals have filed an amicus brief in the case of Daniel Allen.

Allen, 44, was charged last year with bio-terrorism for allegedly biting a neighbor during a fight. Prosecutors charged him because Allen is HIV-positive. They argue that spit from an HIV-positive person is a hazardous biological substance.

This is the first time that any person has been charged with bio-terrorism as a result of his or her HIV-status, experts have told Michigan Messenger.

Among those experts was Bebe Anderson, Lambda Legal’s HIV project director. In November, Anderson told Michigan Messenger she was concerned about the charges:

“I think it is a very dangerous thing for prosecution to proceed with a charge or an enhanced charge based on a person’s HIV status. Typically these prosecutions are based on ignorance about HIV transmission. These prosecutions add to ignorance in the general public about HIV transmission, and they certainly add to the stigmatization of people living with HIV.”

And that is exactly what the brief her organization filed on behalf of itself, Michigan Protection and Advocacy Services, Michigan Positive Action Coalition and Community AIDS Resource and Education Services (CARES) says.

This amicus, or friend of the court brief, is the second such brief filed in the case. The ACLU filed an Amicus brief earlier this month. Lambda’s brief was filed Monday in Macomb County Circuit Court. A hearing on motions by both the ACLU and Lambda’s requests to file amici briefs will be heard Monday, April 26 by Macomb County Judge Peter Maceroni, who is presiding over the case.

Anderson said the amicus just filed by Lambda picks up where the ACLU brief left off.

“In our brief what we have focused on is the impact of misinformation of HIV transmission, on HIV stigma and how it impacts people living with HIV but the public health itself,” Anderson said in a phone interview.

Indeed the 25-page brief includes three pages of citations of studies and information from the U.S. Centers for Disease Control and Prevention in Atlanta. Those citations lead Lambda and the others to write in the brief:

Although more than 25 years have passed since physicians reported the first cases of HIV in the United States, HIV-related stigma continues to be prevalent and well documented. As a result, people with HIV face persistent and alarming bias.

The Lambda brief also argues that since HIV cannot be spread via saliva, the prosecution will continue the “widespread” ignorance about how HIV is transmitted, and as a result, the stigma and discrimination that follows that ignorance.

Despite such public education efforts, ignorance about how HIV is and is not transmitted is still widespread in this country. “Large segments of the public remain uneducated about HIV and how it is transmitted,” which promotes fear and antipathy that can “often translate into biased and discriminatory actions.” The 2009 national survey conducted by the Kaiser Family Foundation revealed that misconceptions about how HIV is transmitted “continue to persist more than 25 years into the epidemic.” In fact, the survey found that “levels of knowledge about HIV transmission have not improved since 1987.” Approximately one-third of the survey respondents (34 percent) harbored at least one misconception about HIV transmission. For example, 27 percent of respondents did not know that HIV cannot be transmitted through sharing a drinking glass; 17 percent did not know that HIV cannot be transmitted by touching a toilet seat; and 14 percent did not know that HIV cannot be transmitted by swimming in a pool with someone who has HIV. The percent of respondents who incorrectly believed that HIV can be transmitted by sharing a drinking glass or who did not know whether it could actually increased between 2006 and 2009 (from 22 to 27 percent). The Kaiser survey also demonstrated the linkage between misconceptions about HIV transmission and stigma against people living with HIV. People who incorrectly believed that certain activities posed a risk for HIV transmission were likely to say they would be uncomfortable working with someone who has HIV or with having their food prepared by someone with HIV.

Like the ACLU, Lambda argues the bio-terrorism charge ought to be dismissed.

Allen was offered, and rejected, a plea deal. His attorney, James Galen, says the deal was rejected because Allen contends he did not bite the alleged victim Winfred Fernandis Jr. In fact, Galen and Allen have filed a complaint with the Clinton Township office of the FBI, alleging that Allen was the victim of a gay bashing in this situation.

Lawmakers have expressed their concerns about the use of the law as well. Mark Meadows, an East Lansing Democrat and chair of the House Judiciary Committee, has called the prosecution “silly” and said this was not what lawmakers had in mind when they drafted the law in 2004.

Here is the full text of the brief:

People v Allen Prop’d Amicus Brief — Lambda Legal Et Al