June 8, 2012
The aggravated assault conviction of an HIV-positive man was overturned unanimously by the New York Court of Appeals on June 7, after the court found that the man's saliva could not legally be considered a deadly weapon or dangerous instrument. David Plunkett was serving a 10-year sentence for punching and biting a police officer.
The incident occurred in 2006 when Plunkett was causing a disturbance as a patient at an Ilion clinic. Plunkett reportedly had a history of medical illness and assaulted one of the responding officers.
In New York, in order for assault to become aggravated assault (which carries a greater penalty), the use of a deadly weapon or dangerous instrument is required. The original judge considered HIV-positive saliva a deadly weapon, making biting an aggravated assault. Plunkett pleaded guilty to both assault and aggravated assault.
However, on June 7, the court dismissed the aggravated assault conviction, stating saliva should be treated the same as teeth, which in 1999 were deemed not to be dangerous instruments on the grounds that body parts come with the person and thus do not increase criminal liability.
The officer whose skin was broken by the bite didn't become HIV-infected, though he took antiviral drugs for months afterward, Herkimer County Assistant District Attorney Jeffrey Carpenter said. Plunkett also urinated, defecated and bled during the struggle with two officers, and the court's ruling in effect applies not just to all body parts but also to all bodily fluids, he said.
"I think the decision will place not only the general public but certainly our first responders -- be it police, firefighters, EMTs or paramedics -- in grave danger in the future," Carpenter said.
A number of studies have found saliva does not contain sufficient concentrations of HIV to transmit the virus to other people. According to the Centers for Disease Control and Prevention, "contact with saliva alone has never been shown to result in transmission of HIV."
Scott Schoettes, the HIV Project director for national gay-rights group Lambda Legal, said Thursday's ruling is the first in the country to state explicitly that no body part or fluid can be considered a deadly weapon.
"It's an important step forward" for HIV-positive people, said Schoettes, who wrote a brief on behalf of Plunkett. A contrary ruling, he added, would "criminalize HIV."
While this is a big win for people living with HIV, there is still a steady rise of HIV criminalization cases. It will be interesting to see how this landmark decision impacts charges of HIV exposure through sex, now that body parts and bodily fluids are not considered deadly weapons in New York state.
Warren Tong is the research editor for TheBody.com and TheBodyPRO.com.
Follow Warren on Twitter: @WarrenAtTheBody.
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