Despite Science, Police Still Add 'Biting' to Charges Against People With HIV
Lee Dewey was simply exercising their first amendment rights to freedom of speech and freedom of assembly. But for Dewey, a gender non-conforming accountant and community organizer, what started as participation in a peaceful protest ended in being attacked, arrested, forced to give blood, and indicted on felony charges.
On Saturday, Aug. 12, 2017, Dewey, who uses "they" and "them" pronouns, was part of Chicago's Slutwalk march. Slutwalk is a movement of protest marches calling for an end to rape culture and victim blaming. It originated as a protest against the police telling women that, to avoid rape, they needed to stop dressing like sluts.
At Slutwalk, both in Chicago and in other cities, some marchers dress in clothing that is considered revealing or provocative to promote the message that the full responsibility for sexual assault always falls on the perpetrator and never on the survivor. That day, Dewey showed up in a tutu.
As the march wound down, Chicago police officers arrested three organizers and placed them in a police vehicle. Dewey was among dozens of marchers who, from the sidewalk, demanded the release of their friends. In response, police moved in. As they did, Dewey fell, their bicycle toppled on top of them, and police piled onto them. An officer stepped on Dewey's head. Dewey was then arrested, handcuffed and, though injured, taken to the 18th district police precinct.
Once at the precinct, Dewey alerted police to one of these injuries -- a cut across their thigh -- and asked for bandages. Dewey also informed police officers that they were HIV positive.
Though Dewey did not ask for, consent to, or desire increased medical treatment, police officers took them to Rush Hospital. There, a police officer and a medical professional demanded that Dewey consent to have their blood taken, claiming that a police officer said that Dewey had bitten his or her ankle.
Dewey denied -- and continues to deny -- biting anyone. But, surrounded by police and medical personnel at the hospital, they felt coerced into consenting to a blood test because of their HIV status.
Dewey is now facing charges of aggravated battery on a police officer for allegedly biting a Chicago police officer and aggravated assault on a police officer for allegedly attempting to bite a Chicago police commander. While in court awaiting a bond hearing, the prosecutor revealed that Dewey is HIV positive, thus publicly exposing Dewey's status to not only to the judge and courtroom attendees, but also to the public record. Bond was set at $100,000, an exorbitant amount that could have kept Dewey in jail for months as they awaited their day in court.
Fortunately, the Chicago Community Bond Fund, a revolving fund that pays bonds for people jailed in Cook County simply for being unable to afford bail, immediately posted the 10% (or $10,000) needed for Dewey's release. Illinois has an HIV criminalization statute and an HIV enhancement. Neither of these have been levied against Dewey. However, they still face aggravated battery, a felony that, upon conviction, carries a three-to-seven-year prison sentence.
People With HIV Often Charged With Biting Law Enforcement
Dewey is not the first -- or only -- person living with HIV to face prosecution for allegedly biting a law enforcement official. Dewey's support team point to the arrest and prosecution of Gary Lawman, an activist living with HIV, sixteen years earlier. On June 24, 1991, ACT UP protested the American Medical Association meeting in Chicago. Police responded with violence and, in the course of disrupting the protest, arrested 31-year-old Gary Lawman. He was charged with battery and disarming a Chicago police officer. Prosecutors accused him of biting one officer's hand and pulling a gun from the holster of another officer, though video of the protest apparently showed him scuffling with, but not biting, any officers. Nonetheless, Lawman's bond was set at $25,000.
The state attorney's office obtained an order to test Lawman's blood for HIV, but later recalled the order, acknowledging that it "had no probable cause to test the defendant without his consent." The charges against Lawman were eventually dropped. Lawman, who suffered a broken nose and a cut above his left eye requiring five stitches, later successfully sued the Chicago Police Department for his injuries.
"We have known since the 1980s that HIV is not transmitted by spitting and biting," Catherine Hanssens, the founder of the Center for HIV Law Policy, told WNYC in a September interview. "We've known for a long time that those don't transmit."
Numerous medical organizations, including the American Medical Association, American Psychological Association, National Association of County and City Health Officials, and the U.S. Conference of Mayors, have called for the modernization of HIV criminalization laws. Even the American Association of Prosecuting Attorneys is calling for modernization of the laws under which they currently charge and imprison people, stating: "There are no known cases of a law enforcement officer getting infected with HIV in the line of duty through [spitting or biting]. That is because this type of contact with an HIV-positive person poses little or no risk of HIV transmission." However, this display of understanding of modern medicine and outdated law by an association of prosecutors has not prevented individual prosecutor's offices from continuing to use these laws against people in the courtroom.
In July, police arrested a man in New Orleans for spitting on and biting a police officer. Shortly after his arrest, the police obtained a warrant to test his blood for "officer safety"; the test revealed that he was HIV positive. Though spitting and biting have minimal risk of transmission, prosecutors are charging 32-year-old Willie Shirley with two counts of "intentional exposure to AIDS," as well as disturbing the peace and resisting arrest.
In September, Billings, Montana, prosecutors charged a woman with HIV with criminal endangerment after she bit a hospital security guard. Prosecutors claimed that her action might have transmitted HIV, though the charging documents did not say whether the guard had subsequently tested positive.
Eliminating HIV-Specific Laws Not Enough
However, as Dewey's arrest and prosecution demonstrate, modernizing the law isn't enough. Andrea Ritchie is the co-author of Queer (In)Justice: The Criminalization of LGBT People in the United States and author of Invisible No More: Police Violence Against Black Women and Women of Color. In a telephone interview with TheBody.com, she pointed out that although Illinois has an HIV criminalization statute, prosecutors chose not to charge Dewey under that particular law or with an HIV enhancement. But, she cautions, even without the use of an HIV-specific law or enhancement, "the effect is still charging someone with a serious felony [which carries a high sentence] rather than a misdemeanor."
Dewey's arrest, she continued, "is consistent with the tendency to punish people who are gender non-conforming more seriously under the perception that they pose more of a threat." In Dewey's case, police and prosecutors fall back on two archetypes often used against queer and gender non-conforming people -- that they are somehow disease spreaders and more homicidal by nature. "This case pulls both of those [stereotypes] together," Ritchie pointed out. "Despite being engaged in a peaceful protest, they are being perceived as both a disease spreader and a violent threat, and that's what the charge reflects."
Dewey's legal ordeal may also have broader ramifications as people attempt to exercise their First Amendment rights. People living with HIV have protested attempts to repeal the Affordable Care Act, protests that include sit-ins at the offices of unresponsive legislators, as well as arrests. Dewey's arrest sends a message to others that, even when HIV criminalization statutes are not invoked, peaceful protest may result in felony charges that could take months, if not years, to fight.
Ritchie, who has researched, written about, and litigated against police violence, noted that Dewey's prosecution is "consistent with increased repression of protest in this moment in time with laws being floated at the state and federal level for increasing penalties for offenses that are assaults on police officers and even perceived threats to police officers, like Thin Blue Line laws and Blue Lives Matter laws."
Furthermore, she noted that, just as HIV-specific charges may not be applied, even when Thin Blue Line's and Blue Lives Matter's laws are not passed or applied, prosecutors still have the discretion to overcharge -- or seek the highest possible charge -- against a person. "You charge the highest possible offense and people often plead down," Ritchie explained. "Everyone is terrified of going to trial and getting a felony conviction and a long sentence." This allows the prosecutor to offer a plea deal (more about this in an upcoming article) in which a person can plead guilty in exchange for a less serious charge and the ability to go home sooner. "It's not systematic," Ritchie clarified. "This is literally how the system works."
Given all this, how can people -- both those living with HIV and those who are not -- protect themselves when protesting injustice? "The best thing we can do is Copwatch and document everything to expose the cops' lies," Ritchie recommended.
At the same time, when protests are planned, defense committees and bail funds need to be put together. Had the Chicago Bail Fund not existed, Lee Dewey very well could be sitting in the Cook County Jail awaiting their day in court, a wait that could stretch at least 57 days, if not longer. This lengthy jail time, even before guilt or innocence is proven, is a strong incentive for many people to plead guilty simply to go home.
Supporters are calling on Cook County state attorney Kim Foxx to drop the charges against Dewey and the other people arrested at Slutwalk. They are also collecting money for Dewey's defense fund to enable attorneys from the People's Law Office and Thedford Garber Law firm to attend their numerous court proceedings, as well as to conduct an extensive investigation and potentially hire experts to disprove the state's allegations of biting. Dewey might also be forced to pay the costs of being taken to the hospital against their will.