HIV-Positive Status Brings Attempted Murder Charges in More Sex Cases : Law: Critics say added count plays on the public’s fear of AIDS. Prosecutors say infected persons who have unprotected sex are like assailants with gun.

The state of Florida believes Ignacio Perea Jr. tried to kill three young boys. The alleged weapon? The AIDS virus that has infected his body.

Perea, 31, sits in a Dade County jail, charged with attempted first-degree murder for allegedly kidnaping and sexually assaulting the boys in separate attacks. When police arrested him in late 1991, they found a receipt in his wallet indicating that he was being treated for the human immunodeficiency virus, or HIV.

Perea, the son of Cuban immigrants, worked for the family’s bird supply business and lived with his parents. He is not the first defendant whose HIV-status has become the basis for an attempted murder charge and the defining element in a growing number of cases across the country.

* In rural Oregon, a former Marine and lay minister is awaiting trial on myriad attempted murder and sexual assault charges in the alleged rapes of nine children. Prosecutors secured the indictments after the defendant tested positive for HIV.

* A York, Pa., man infected with HIV was convicted in July of raping his two young daughters. An earlier charge of attempted murder was dropped before trial because prosecutors were unsure they could prove that he intended to kill the girls.

* A Texas burglar with AIDS is serving a 99-year prison term for attempted murder for spitting at a prison guard. Two appeals courts have rejected his pleas for clemency.

Throughout the country, the relevance of a defendant’s HIV-status in a criminal case has been argued in the courtroom, on the pages of law journals and at legal seminars. It’s a thorny issue that turns on rights of privacy, public health concerns and law enforcement, all in the context of a complex social behavior--sex--and the transmission of a fatal disease.

Gay-rights advocates and defense attorneys contend that a charge of attempted murder does little to further the cause of justice and simply plays on the public’s fear of AIDS. Prosecutors and advocates for victims, however, counter that a person with HIV who has unprotected sex is like an assailant with a weapon.

“The incidents of HIV prosecutions motivated and carried on essentially by prejudice far outnumber the cases where there are actually a chance of transmission or evidence of an evil state of mind,” said Scott Burris, a professor of law at Temple University and author of “AIDS Law Today: The New Guide for the Public.”

“We have to understand sex is a very complicated thing; the motivation can be very complicated. It is not the same thing as firing a loaded gun,” he added.

Some prosecutors are applying old laws to handle one of society’s toughest social and medical dilemmas, while others are enforcing new statutes enacted in the wake of the AIDS epidemic. At least 25 states, including Florida, have laws against knowingly transmitting or exposing a person to HIV.

But in the Perea case, prosecutors charged him with attempted first-degree murder under a rule of law that doesn’t require them to prove an intent to kill. They need only prove that the crime occurred during the commission of another felony, the alleged sexual batteries.

“Our job is to apply the law. We’re suppose to file charges that are appropriate . . . whether it was a bullet that missed someone or, in this case, it happens to be AIDs,” said Kathy Fernadez Rundle, the Dade County state’s attorney.

Peres’ lawyer, Jay L. Levine, contends prosecutors charged his client with attempted murder “for one purpose and one purpose only: to secure a strategic advantage, to prejudice the jury by letting the jury know he’s HIV-positive.” Perea’s trial is in September.

“How can you attempt or try to do something you never intended to do?” asked Levine, whose client maintains his innocence.

As early as 1986, states began enacting new laws that make it a crime for a person to knowingly expose another to the AIDS virus. HIV is transmitted from one person to another by body fluids. The most risky sexual activity seems to be anal intercourse, primarily because the trauma to the rectum often breaks the skin, allowing the virus contained in an infected person’s semen easy entry to the sex partner’s bloodstream. After sex, the second most common mode of transmission of HIV is blood-to-blood contact through sharing of intravenous needles.

Some of the first HIV-related prosecutions involved incidents of biting or spitting by an infected person. In recent years, prosecutors have filed attempted murder charges in cases of rape and sexual assault, where the likelihood of transmitting the disease is much greater.

But gay rights advocates and legal scholars cite biting and spitting cases as examples of situations in which the law can be misapplied. Those cases capitalize on the public’s fear of AIDS and perpetuate misconceptions on the transmission of the disease, they argue.

What concerns gay rights activists and lawyers who work in this area is the message these kinds of cases send to the public.

Margaret Fine, a Baltimore lawyer who specializes in legal issues involving AIDS, said prosecutions of biting and spitting cases distract the public’s attention from the kinds of truly high-risk behavior--unprotected sex and needle-sharing--on which they should focus.

“We’re wasting a lot of legal and human resources where there is no significant risk of transmission,” Fine said. “Prosecutors and the courts are making AIDS policy that is contradictory to the public health policy on AIDS.”

When an HIV-infected defendant has been charged with an offense such as rape, which can carry a lengthy prison term, some lawyers question the gain in adding an attempted murder charge.

“It’s really pandering to hysteria,” said Nancy Hollander, an Albuquerque, N.M., attorney and president of the National Assn. of Criminal Defense Lawyers. “You’re not going to stop a rape by charging people with attempted murder when it doesn’t raise the ante for the person who’s the rapist.”

That’s not to say there isn’t a case in which an attempted murder charge may be justified, lawyers on both sides of the debate say. But, in most states, prosecutors would have to prove a specific intent to kill.

“It’s part of the total frustration with the fact that we can’t get a handle on the (AIDS) epidemic,” said Karen H. Rothenberg, president-elect of the American Society of Law, Medicine and Ethics in Boston and director of University of Maryland law school’s health care program. “I think sometimes we look for quick-fix legal solutions.”

But John Gaebe, a lawyer in Miami who represents one of the victims in the Perea case, said, “As a member of the community, I’m pleased (with) the approach of the criminal justice system because I don’t see a distinction between HIV and pointing a loaded gun. . . . I don’t think anybody can claim ignorance when it comes to AIDs anymore.”

HIV-related prosecutions are going to continue, predicted Burris of Temple University.

“You have enough people out there with HIV, and a certain percentage will wind up in the criminal justice system, and the criminal justice system will respond,” he said. “Some cases you won’t hear about; others will be the crime of the century.”