Judge Rules Man Can Be Tried for Assault in AIDS Case

A Superior Court judge ruled Monday that David Scott Crother can be put on trial on assault charges for allegedly infecting a Ventura County woman with the AIDS virus.

Judge Lawrence Storch denied motions by Crother’s lawyer to dismiss the case. The lawyer argued that prosecutors are trying to stretch California assault laws to cover behavior that has no precedent in any law in the United States.

Crother, 46, of Santa Barbara, was indicted in January, 1991, on 15 counts of assault with a deadly weapon, one for each sexual liaison he allegedly had with the unidentified Ventura County woman without wearing a condom or telling her that he carried the AIDS virus.

The woman and the baby Crother allegedly fathered with her have tested positive for the virus believed to cause acquired immune deficiency syndrome.

The case marks the first time that anyone in California has been charged with assault for spreading the AIDS virus through sex.

Defense attorney Robert M. Sanger argued unsuccessfully Monday that the Ventura County district attorney’s office was trying to create new law by charging Crother with assault.

“Nobody is prosecuting people for coughing in a room when they have tuberculosis, and we know that tuberculosis can be fatal,” Sanger said. “Here, we’re trying to create a new crime using an old statute.”

Sanger also argued that Crother has been denied due process because there is no law that specifically fits the case and that AIDS should be combatted with education, not prosecution.

He said that Chief Deputy Dist. Atty. Vincent J. O’Neill Jr.’s arguments were partly based on cases that had little relevance to the Crother case.

O’Neill argued that a Delaware court in 1917 set a legal precedent for the Crother case by ruling that a defendant who infected someone with syphilis could be prosecuted for assault with a deadly weapon.

O’Neill also cited the case of a U. S. Navy Air Force sergeant in the state of Washington who knew he carried the AIDS virus, yet attempted intercourse with a 17-year-old boy. The sergeant was court-martialed and sentenced to six years imprisonment on assault charges.

“We’re asking the court to consider the general felony assault statute in light of this particular case,” O’Neill said of the Crother matter. “It is not in my view the creation of a new crime, to consider a pre-existing statute in light of unusual facts.”

O’Neill said that prosecutors have pursued a trial for Crother because the woman he allegedly infected came forward and lodged a complaint.

“We prosecute, routinely, auto accidents when someone drives negligently, not intending to kill someone, as a very serious offense,” he said. The prosecution “will establish that Mr. Crother knew he was engaging in potentially deadly behavior . . . and went ahead and did it anyway,” he said.

Storch ruled that Crother could be prosecuted legally on each of the indictment’s 15 counts of assault with a deadly weapon.

“I don’t feel it is infringement on the due process rights of all the people who are infected with this disease to require them to inform their partners of the infection,” Storch said of the charges.

“It is incumbent on all carriers of this disease to inform all prospective sexual partners,” Storch said. “In this case, there’s not only non-disclosure, there’s non-protection.”

Storch granted a two-week delay so that Sanger could appeal his decision to the state 2nd District Court of Appeal. Sanger said he plans to file the appeal next week.

If convicted of six or more counts of assault, Crother faces a maximum prison sentence of eight years. The maximum penalty for one charge is four years, O’Neill said.

Sanger said that such a penalty could be tantamount to sentencing Crother to die in prison because of when the virus can be expected to attack his immune system.