Appeal Is Dismissed in AIDS Case

In the wake of the defendant’s death, a state appeals court has dismissed a legal challenge to the first assault conviction in California for passing on the AIDS virus through unprotected sex.

Attorneys said Wednesday that justices on the Ventura-based panel of the 2nd District Court of Appeal followed the normal rule of law in dismissing the appeal of David Scott Crother, a Santa Barbara man who died of AIDS Feb. 3.

Ventura County prosecutors had made an unsuccessful last-minute effort to keep the case alive, citing “broader societal interests” in determining whether an HIV-infected person who has unprotected sex is guilty of assault with a deadly weapon.

An appellate ruling in the case would have set a statewide legal precedent.

Crother, a 47-year-old former carpenter, waged a lengthy legal battle in Ventura County Superior Court before agreeing in June to be convicted of two counts of assault with a deadly weapon stemming from his affair with a woman who gave birth to his child. His agreement to be convicted was made pending the outcome of his appeal.

Both the woman and the child have tested positive for HIV, the virus that causes acquired immune deficiency syndrome. In 1991, a Ventura County grand jury indicted Crother on 15 assault charges, one for each time he had unprotected sex with the woman after learning that he was HIV-positive.

Deputy Dist. Atty. Kevin G. De Noce, who wrote a letter to the appellate court trying to block dismissal of the Crother case, said his office was notified Monday that the appeal would not go forward.

“This is the type of issue that’s going to evade full litigation because chances are (any) defendant is going to die sometime during the appellate proceedings because they have AIDS,” De Noce said.

Robert Sanger, the Santa Barbara attorney who represented Crother, said he filed the appeal because he wanted a precedent-setting ruling to block prosecutors from expanding the definition of assault with a deadly weapon. Now that Crother is dead, however, an appellate opinion is unnecessary because it would apply to so few people, Sanger said.

“I think that this has always been a very tragic human case and my client has died,” he said. “We were not dealing with the opening of the floodgates; we were dealing with one case.”

De Noce said his office still believes that it was appropriate to charge Crother with assault. Future cases, if any, will be treated the same way, De Noce said, although prosecutors may attempt to accelerate them through the system in an effort to get a binding appellate opinion before the defendant dies.

Sanger said Crother found out that he was a carrier of the human immunodeficiency virus in 1988, during his affair with the woman. While Sanger said he could not condone Crother’s choice to engage in unprotected sex, he nevertheless understood it.

“The problem is, when people are diagnosed with a terminal disease, they go into denial,” Sanger said. “They want to do life-affirming things.”

Sanger also complained that his client was singled out for prosecution because the disease he transmitted was AIDS.

“We do not prosecute people for coughing in a room and spreading tuberculosis,” Sanger said. “We have a psychological reaction to HIV that we don’t have to tuberculosis.”