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Law on HIV Infection Little Used

Times Staff Writer

Thomas Lister awkwardly faced the roomful of strangers, offering the intimate details of his five-month sexual affair with former city health commissioner Ron Hill.

Testifying before a grand jury here last week, the 38-year-old former brokerage manager described his sense of outrage and betrayal at learning that Hill, a nurse, lied about his HIV status before infecting Lister with the disease in 2000.

“I trusted him when he said he didn’t have HIV,” Lister said of his former partner in an interview. “If you can’t trust a nurse and city heath commissioner, who can you trust?”

Lister wants his ex-lover behind bars. But for the grand jury, which met in secret for a second and last time Tuesday to consider the matter, handing up an indictment is complicated.

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If charged, Hill would join only a handful of people statewide pursued under a controversial 5-year-old law that prosecutors criticize as so narrow it hampers efforts to punish those who transmit HIV through sexual activity.

California differs from some two dozen other states with similar laws because it includes a caveat that requires authorities to prove defendants acted “with the specific intent” to infect their sex partners with HIV. Three other states have laws that match California’s requirement.

The California law has brought just one conviction, in a 2002 Hermosa Beach case in which a man who knew he was HIV-infected exposed two girlfriends to the deadly disease over several years. The 41-year-old man was sentenced to eight years in prison after accepting a plea bargain agreement.

In California’s decades-long battle against AIDS transmission, the specific-intent clause has caused an ongoing skirmish between HIV activists and law enforcement. Advocates say the law’s language protects HIV sufferers from unfounded accusations, while officials say it limits their ability to prosecute these cases.

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“If this law is designed to protect against bad behavior, it’s not doing its job,” said Elliot Beckelman, an assistant district attorney in San Francisco who has worked on the Hill case. “We have an incredibly large gay population in this city. But we haven’t been able to use this law in our arsenal to protect the public safety.”

For years, Lister has been talking about the disease his ex-lover kept secret from him. He has addressed the San Francisco health commission on the case and last year he won a $5-million civil default judgment against Hill, now 45, who disappeared after being confronted by Lister about his HIV status.

Lister met Hill over the Internet in 2000, recalling, “I felt I had met someone who I had really connected with.” During a discussion of their HIV status, Lister said, Hill assured him he was disease-free. Soon, the two were having regular, unprotected sex.

“I have played this over and over in my head a thousand times,” he said. “How could a health commissioner in any city, but especially in San Francisco where AIDS is epidemic, lie about his HIV status and intentionally infect someone?”

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Hill had been appointed by Mayor Willie Brown in 1997 to the seven-member commission, which advises the health department. Mitchell Katz, director of the San Francisco Department of Health, said that historically, one commissioner had been HIV-positive, “and Ron Hill played that role.”

It wasn’t until the couple took an Alaskan cruise five months into their relationship that Lister learned the truth. Alone in their tiny stateroom while Hill was getting a massage, Lister found a doctor’s prescription for AIDS-related drugs.

“I went into shock,” he recalled. “Here was proof that a man I trusted intimately had been lying to me about something that could kill me. I couldn’t focus. I had to go on deck to get some air, to decide what to do.”

Rather than risk a fight with Hill in the confined space of a cruise ship, Lister waited. He fought off his lover’s advances. Meanwhile, he began to feel sick. He visited the ship’s surgeon, who advised him to see his doctor.

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When finally confronted, Hill claimed he was taking medications as a preventive measure because a former lover suffered from AIDS. “He denied everything,” recalled Lister. “Then he picked up his belongings and left.”

Lister was diagnosed as having HIV in October 2002. That same month, Hill resigned from his health commission post following his arrest in Sonoma County for allegedly passing $3,000 in bad checks.

About 800,000 people in the United States are infected with HIV, although a quarter of them do not know they are infected, federal statistics show. In San Francisco, 19,000 live with HIV or AIDS.

Yet the number of people pursued under HIV-infection laws nationwide has been small. A recent study pinpointed 316 prosecutions between 1986 and 2001 -- a number that represents a mere fraction of other sex-related crimes. Some experts question whether such laws are even necessary.

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“There may be more effective ways to change people’s behavior,” said Zita Lazzarini, director of the University of Connecticut Health Center’s Division of Medical Humanities, Health Law and Ethics, which conducted the study on HIV prosecutions. “Perhaps a better way is to promote the use of condoms. That way people are safe, even if they don’t talk to their partners about possible infections prior to having sex. They don’t have to rely on what people say.”

California’s law stems from a 1996 case in which a Contra Costa County judge dismissed assault charges against a man who had continued to have unprotected sex with a woman after he knew he was HIV-positive. The man had been charged with assault with a deadly weapon because he had concealed his HIV status.

State law already made it a felony for knowingly infected people to engage in prostitution, or donate blood or organs. But Richard Rainey, then a Republican state senator from Walnut Creek, wanted more: He sought to punish anyone who exposed an unsuspecting partner to AIDS or HIV.

Advocates for the law cited a case in Amador County where a man engaged in sex with countless women on his theory that a woman gave him the disease and that he was going to give it back to as many women as he could before he died.

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“People said, ‘There ought to be a law against this,’ and I agreed,” said Rainey, now a regional director with the federal Housing and Urban Development agency. “The way I see it, these people are handing out potential death sentences.”

But largely because of lobbying by AIDS activists and civil libertarians, the law was passed with the clause requiring specific intent.

Opponents argued that Rainey’s version of the bill could lead to violations of privacy and selective enforcement against gay men. Fear of criminal sanctions could also scare individuals engaging in high-risk behavior from getting tested for HIV and AIDS, because they must know of their infection to be charged under the law.

“There are a lot of other undesirable diseases out there, so what’s next?” asked Sarah Whitehead of the advocacy group Aids Action. “Going to prison for giving a sex partner herpes or the common cold? We don’t need another litigious way of navigating through an already complicated world of sexual relationships.”

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In other states with HIV transmission laws, it is a crime for those who know they have HIV or AIDS to engage in unprotected sex without informing their partners. But those states do not require that the defendants intend to infect their partners or that the partners actually contract HIV.

In South Dakota, a state without a specific-intent clause in its HIV legislation, officials recently convicted a rural college basketball player for having sex with his girlfriend without telling her he had HIV. Michael Moore, Beadle County state’s attorney, said he would have never been able to convict under California’s law.

“If this was California and I had to prove this man specifically tried to infect his girlfriend, we would have never been able to send him to prison,” he said. “We feel justice was done.”

California officials say their law does not place an unnecessary burden on prosecutors.

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“How does anyone ever get a first-degree murder conviction?” asked Nathan Barankin, a spokesman for state Atty. Gen. Bill Lockyer. “You convince the jury the suspect intended to do it. You establish that the defendant had unprotected sex and didn’t disclose their HIV status. If they claim they thought this was a time when they would not transmit the disease, it’s up to the jury to decide if they believe them.”

Meanwhile, Lister’s relationship with Hill has left a lasting impression. Normally a private man, Lister nonetheless is now quick to tell potential partners about his HIV status. “I don’t wait until they ask. I volunteer the information,” he said.

“I’ve been rejected because of my disease, but each time, I walk away with a clear conscience. I’d rather be rejected and have the other person live to tell about it.”


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