Judge OKs AIDS Test for Gay Man Who Bit Two S.D. Officers

A Municipal Court judge Wednesday authorized testing for AIDS antibodies in the blood of a homosexual man who bit two San Diego police officers at a gay pride parade, ruling that the state’s right to investigate a potential crime outweighed the man’s privilege of confidentiality.

Gay rights advocates protested the ruling, warning that it forges a dangerous loophole in what had previously been an ironclad prohibition in California against disclosing the results of AIDS-related blood tests. An aide to the author of the state law mandating confidentiality for the tests said the ruling contradicts lawmakers’ intent.

In delivering the ruling, San Diego Municipal Court Judge Raymond Edwards Jr. described the case as the first of its kind in the state. His decision will be appealed, and the testing will not be conducted without a higher court’s approval, according to the attorneys involved in the case.

Brian Barlow, 39, of San Francisco is charged with battery against a police officer for biting Officer Ray Shay and Reserve Officer George Ground after an altercation June 7 with fundamentalist counter-demonstrators at the annual Gay Pride Parade in San Diego.

While being treated at a hospital for minor injuries he suffered in the struggle, Barlow, an unemployed communications consultant, told a police investigator that he was homosexual. According to a police affidavit, Barlow said: “You better take it that I’ve got AIDS for the officers’ sake.”

Concerned that the two officers might have been exposed to the AIDS virus, police ordered a blood sample drawn from Barlow for testing. But Barlow objected to the testing, and a series of hearings was conducted in San Diego Municipal Court to determine if the blood could be tested without his consent.

In final arguments Wednesday, defense attorney Peter Hughes said state law clearly prohibits the use in criminal proceedings, without the subject’s consent, of the results of blood tests for the presence of AIDS or AIDS antibodies.

The law, AB 403, was passed by the Legislature last year. It was designed to limit the spread of the disease and maintain the purity of donated blood supplies by reassuring people who suspected they have been exposed to AIDS that they could submit to blood tests with the certainty that the results would remain confidential.

Deputy Dist. Atty. Sally Penso argued that the testing law contradicts provisions in the state Constitution granting law-enforcement agencies the power to investigate possible crimes.

The prosecution’s main objective in seeking to test Barlow’s blood was to aid in the two officers’ medical treatment, she said. Unless Barlow was tested, the officers would have to undergo a yearlong regimen of tests to determine if they had contracted AIDS or a related syndrome, she said.

But Penso acknowledged that prosecutors also could escalate the charges against Barlow--perhaps charging him with assault with a deadly weapon--if the tests showed he had the capacity to infect the officers.

In earlier hearings, Hughes argued that testing Barlow for the AIDS antibody would not determine conclusively if the officers had been exposed to the disease. He noted, too, that medical experts know of no known case of someone contracting the disease by being bitten by someone carrying the antibody or infected with AIDS.

Penso, though, contended that three widely used tests, conducted in tandem, are highly reliable monitors of the presence of the AIDS antibody. Moreover, she said, an epidemiologist has testified that the presence of the antibody in an individual’s blood almost always means the person is capable of transmitting the disease.

After closely questioning the two lawyers during a two-hour hearing Wednesday, Edwards ruled from the bench that the tests could be conducted.

When “harmonized” with the state Constitution and other Penal Code provisions, Edwards said, AB 403 “does not prohibit the taking of the blood or the testing of blood” for AIDS antibodies under a court order, if probable cause has been shown that a crime may have been committed.

Edwards barred prosecutors from revealing the test results to the two officers, however, ordering that only Penso, Barlow and Hughes be allowed to see them. Edwards said the results could be used only to determine if Barlow had committed a felony.

“This is a very difficult legal issue of first impression,” Edwards told the lawyers as the hearing concluded. “I do anticipate this will be a recurring issue as the number of cases grows in this community.”

Larry Bush, administrative assistant to Assemblyman Art Agnos (D-San Francisco), the author of AB 403, said the testing approved by Edwards contradicts the legislation’s intent. Existing blood tests reveal only the presence of the AIDS antibody and should not be used to draw any medical conclusions, Bush said Wednesday.

“To try to apply that standard to whether a particular individual is still infected and infectious to others is not scientifically sound, is bad public policy, and it’s illegal in the state of California to test a person against their will,” he said.

Bush said it is a criminal violation of federal food and drug laws, punishable by a $500,000 fine, to use the test for any purpose other than screening potential blood donors.

The case, he said, underscores the hysteria and misinformation rampant in public debate about AIDS.

“It’s a microcosm of everything that can go wrong and is going wrong, because we don’t have an effective (education) program in this state,” Bush said. “First, the police don’t know enough about AIDS, so there’s unnecessary fright. Second, the district attorney waded into this without knowing what this antibody test really meant. . . . And thirdly, there’s the guy who did the biting.”

Attorneys familiar with AIDS-related litigation said the case is one of only two or three criminal proceedings in the nation that have explored the possibility that AIDS could be transmitted by a bite.

Penso said a body of law is emerging over the civil and criminal consequences of AIDS infection. Developments, she said, could parallel the litigation over exposure to genital herpes, in which civil judgments have been entered against people who spread the disease and at least one rapist’s sentence has been lengthened because he gave the disease to his victim.

Gay rights advocates said the ruling could erode the rights of homosexuals, encourage discrimination against them and jeopardize public confidence in the confidentiality of AIDS-related blood tests.

“What the judge has done is to take an extraordinarily remote medical threat, which can be measured by checking out the police officers, and (used that to) justify imposing a severe infringement upon civil rights,” said Ben Schatz, director of the AIDS Civil Rights Project of the National Gay Rights Advocates, a public-interest law firm in San Francisco.

Schatz noted that San Diego police in part had based their request for a warrant to draw blood from Barlow on his statements that he was homosexual and a San Francisco resident.

“It’s as if suddenly you land in the airport and you’re infected,” he said. “It’s medically ludicrous. And it’s blatantly discriminating against gay men and men who live in San Francisco.”