Activists, advocates applaud dismissal of bio-terrorism charges

MT CLEMENS — In a written opinion dismissing a charge of bio-terrorism against a 45-year-old HIV-positive man, Macomb County Circuit Court Judge Peter Maceroni ruled that the mere fact a person is HIV-positive is not enough to accuse him or her of unlawfully possessing a harmful biological substance.

The eight page ruling, released Thursday morning, concludes that HIV is not transmitted by saliva without there being blood present. Prosecutors and preliminary hearing testimony did not indicate Daniel Allen was bleeding at the time he allegedly bit the victim, Winfred Fernandis, Jr. That conclusion lead Maceroni to write:

“As a result, the only possible ‘harmful biological substance’ present in the matter was the defendant’s HIV-infected blood contained in his bloodstream. However, the mere fact that defendant was HIV positive when he allegedly bit the complaining witness is insufficient to meet the elements of [the law]. There is no evidence that demonstrates defendant manufactured or possessed a harmful biological substance, i.e. HIV infected blood, with the intent to frighten, terrorize, intimidate, threaten, harass, injure or kill any person, i.e. for an unlawful purpose… The fact the defendant is HIV positive, alone, cannot demonstrate he manufactured or possessed HIV infected blood for an unlawful purpose. In addition, defendant’s alleged action of biting the complaining witness, without the presence of blood, is not a documented manner in which HIV can be transmitted. Therefore, the Court, is unable to conclude, under these circumstances, that there is sufficient circumstantial evidence that defendant possessed the harmful biological substance for an unlawful purpose.”

Allen, 45, was charged in November under a state bio-terrorism law. The charges stem from an October 2009 fight between Fernandis and Allen. Fernandis alleges Allen bit him without provocation, but Allen says the fight was merely the culmination of years of anti-gay harassment. The bio-terrorism charge was added by Macomb County Prosecutor Eric Smith in November, after Allen told a local Fox affiliate news station that he was HIV-positive.

Allen still faces charges of assault with intent to do great bodily harm less than murder and assault with intent to maim. Both are 10 year felonies.

Maceroni’s ruling is being hailed as a clear message about HIV and the state’s bio-terrorism laws.

“The judge very clearly rejected the notion that it was appropriate to charge some one who was HIV-positive under the bio-terrorism statute,” said Bebe Anderson, director of Lambda Legal’s HIV Project. “I think the decision clearly sends a message that courts need to rule on facts, not fear.”

And HIV stigma and fear is what drove the prosecution, Anderson contends.

“These charges transformed a case that was about assault into something more nefarious — all based on the fact someone was HIV-positive,” Anderson said. “It implies that having HIV makes some one inherently more dangerous than some one who does not. That simply isn’t true.”

Jay Kaplan, ACLU Michigan LGBT Project staff attorney echoes Anderson.

“I think somebody was trying to be creative, or reach way too far outside the box,” he said of the prosecution. “The unfortunate thing is that it gives credence to the misperception that HIV can be spread through saliva. [Judge Maceroni] directly confronts this myth and says ‘no, that’s not true.’”

“This is a victory for all people living with HIV who risked facing similar outrageous and misguided criminal charges based solely on their HIV status. The court today made it clear that one does not become a bio-terrorist because he has HIV,” said Jay Kaplan, ACLU of Michigan LGBT Project staff attorney. “We believe this is the first time someone has faced such a charge for living with HIV and we hope, after this decision, it will be the last time.”

Kaplan says that while the ruling is not binding in other courts, “they can look to it for guidance.”

He believes the case was being carefully watched by county prosecutors across the state, and he thinks the law won’t be used this way again as a result.

Mark Peterson, a spokesman for Michigan Positive Action Coalition, which was a co-signer of the Lambda brief, praised the ruling.

“This ruling seems then to echo the science behind HIV transmission and not play into the salacious fears brought by the prosecutor,” Peterson said. “HIV is a health issue and it appears as though the judge in this case saw it as simply a health issue. People with HIV are not bio-terrorists, they are people living with a life-threatening illness and they should not be treated as immediately suspect simply because of their health status.”

Here is the full text of the ruling:

bioterror dismissal ruling