Do first responders need a criminal shield from HIV?
David Plunkett's conviction was overturned after serving six years in prison for aggravated assault. / Personal Photo
(CBS) A routine visit to the doctor in 2006 ended with fractured ribs, handcuffs and an aggravated assault charge for New York resident David Plunkett. Six years later, he is a newly free man.
"I remember very little of what happened," Plunkett, 48, said during an interview with CBSNews.com last week. "From what I was told, I became disruptive in the [doctor's] office. The woman working there was very frightened by me and called the police."
Plunkett was arrested following an altercation with responding officers from the village of Ilion, N.Y., during which one officer was bit on the finger. He pleaded guilty to aggravated assault, and a judge ruled Plunkett's HIV infected saliva should be considered a "dangerous instrument."
"A simple assault bloomed into something greater," Plunkett, who was sentenced to 10 years in prison, said. "There was a possibility of being charged with attempted murder because of my HIV status."
In June, the New York Court of Appeals overturned Plunkett's conviction on the basis that body fluids can never be considered "dangerous instruments" in charging someone under state law. Plunkett was resentenced and released from Sing Sing prison on July 19.
Having just been diagnosed with HIV around the time of the incident at the doctor's office, Plunkett recalled struggling with how to cope with the disease.
"I abused my body after I was diagnosed. I was taking different psychiatric medications to medicate myself and feel better," Plunkett said. "I had no support and could not deal with it in a rational way."
"If David didn't have HIV, I personally believe he never would have been charged," said Audrey Baron Dunning, who was assigned the case in 2006. "The police officers did not make it seem like it was intentional. Neither of them stated at the time of the incident that David tried to transmit HIV. When it got to the prosecutor's office, they looked at the issue of his HIV status and that elevated the crime."
Dunning added, "I think it's that atmosphere of dread that the uniformed have around the whole HIV issue. It was just fundamentally unfair that he would be charged, and basically accused of using a dangerous instrument because he was HIV positive. It makes no sense."
The line between protecting HIV positive people from criminalization and protecting first responders who may be at risk for transmission is difficult to demark. According to the Positive Justice Project, there are 34 states and U.S. territories that explicitly criminalize HIV exposure through sex, shared needles or in some states, exposure to "bodily fluids" that can include saliva. Not on the list is New York, which uses general criminal laws to prosecute HIV patients in these types of situations.
"I don't think [the law] does protect us," said Jeffrey Kayser, president of the New York State Police Investigator Association. "I would say the act of biting, nine out of 10 times is an intentional act. I don't know how you would do that accidently. It doesn't lend well when someone is infected with an HIV virus and there is no sanction against him for biting me."
Plunkett said of his case, "When this incident started with me, I did not intend to go in the doctor's office and harm anyone. I was going through an emotional time, a scuffle ensued, and a couple people got hurt. I didn't intend on hurting anyone."
"It's difficult to look at whether it was intentional or unintentional," said Dunning, who was invited to speak about Plunkett's case during last week's International AIDS Conference in Washington. "It's a difficult issue but look at it from a larger degree. If you say saliva is a deadly weapon then you are telling millions of people who sneeze on someone you can be charged."
Catherine Hanssens, the executive director of the Center for HIV Law and Policy, worked closely with the National Alliance of State and Territorial AIDS Directors, Lambda Legal, and other advocates to provide support for Plunkett throughout his appeal process. Hanssens believes Plunkett's conviction was "wildly out of proportion" and law enforcement has every obligation to know about HIV risks.
"Never in the history of the epidemic has there been a case of HIV transmission from a person with HIV, to a first responder. It's not a risk. No one has ever been infected by someone spitting, biting, or throwing up on them," said Hanssens.
According to the Positive Justice Project, there have been 142 prosecutions and arrests for HIV exposure in the United States from 2008-2012. In February 2012, a 29-year-old man in Missouri allegedly bit a police officer. He was charged with recklessly risking the infection of another person with HIV. In November 2011, a 36-year-old man in Illinois was charged with transmission of HIV, after biting an officer's thumb and breaking skin.
According to Hanssens, the prosecutor insists Plunkett should still be in jail and a law should be drafted to protect first responders from those who spit or bite them.
"The DA association has a voice and I applaud them for pushing for that law," Kayser, of the police union, said.
Kayser found Plunkett's sentencing was a "little out of the norm for assault" and said he was speaking without knowing his full criminal history. According to Dunning, Plunkett's record at the time of the incident consisted of one fairly recent DUI arrest.
Both sides are in agreement that proper education is needed in order to decrease HIV discrimination and criminalization. Plunkett found an avenue to educate his peers in prison.
"Believe it or not, I found the prison population very knowledgeable and able to talk intelligently about HIV," Plunkett said. "The PACE (Prisoners for AIDS Counseling and Education) program knocked down a lot of ignorance that surrounded the issue. You can talk to an inmate who has gone through the program intelligently. Unfortunately, my prosecutors have not gone through this."
Dunning said she thinks Plunkett -- no longer behind bars but still a convicted felon -- nonetheless has a "good shot" at finding work in outreach and advocacy. He's interested in starting a nonprofit for former prisoners dealing with HIV/AIDS.
"I want to show people this isn't the end of your life," Plunkett said. "This is the beginning of your life. How I got to this point is kind of crazy but as sad as the situation was, I have gained so much from it."
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