News :: GLBT
HIV: Assault with a deadly weapon? by Hannah Clay Wareham
Associate EditorSunday Nov 22, 2009 Daniel Allen is being charged as a terrorist because of his HIV-positive status.
The 44-year-old Clinton Township, Michigan resident got into a fight with his neighbor, Winfred Fernandis, Jr., on Oct. 18. According to Fernandis, during the fight, Allen bit him on the lip and therefore intentionally committed an act of terrorism.
Macomb County Prosecutor Eric Smith added the terrorism charges to the charges Allen was already facing (assault and assault with intent to do great bodily harm less than death) after the defendant’s HIV status became a matter of public record during an interview with Fox News 2.
Allen now faces the charge of possession or use of a harmful device, which means the defendant could face up to 25 years in prison.
Smith and his team are relying on a two-year-old Court of Appeals decision to back the terrorism charges. In 2007, Antoine Deshaw Odom -- an HIV-positive, hepatitis B-infected prisoner -- spat at prison guards during a physical altercation. In People v. Antoine Deshaw Odom, the judge panel stated that, "HIV infected blood is a ’harmful biological substance,’ as defined by Michigan statute, because it is a substance produced by a human organism that contains a virus that can spread or cause disease in humans."
The decision classified HIV-positive Michigan residents as walking bioweapons.
Smith has since come under fire from HIV activism group Michigan Positive Action Coalition (www.mipoz.org). The organization released a sardonic press statement calling for people with infectious diseases (such as H1N1, HIV, and the common cold) to turn themselves in to the police as terrorists.
Mark Peterson, a director of the group, called the charges against Allen "ridiculous."
Michigan State Rep. Mark Meadows has joined the Michigan Positive Action Coalition in criticizing the charges leveled against Allen.
"Is this a dangerous instrumentality? It’s like saying that because I breathed on you and I have tuberculosis and we are fighting, that somehow because I have this disease it suddenly becomes more than just that I have this disease," the former assistant attorney general told the Michigan Messenger. "The other charges are more than sufficient to deal with the issues involved."
Meadows expects the terrorism charges to be tossed out by the circuit court judge.
District Court Judge Linda Davis, however, agrees with Smith. She stated from the bench on Nov. 2, "[Allen] knew he was HIV-positive, and he bit the guy. That on its own shows intent."
Smith has also drawn criticism for using a 2004 anti-terror law that makes no mention of HIV.
"This troubles me very much," Lambda Legal HIV Project Director Bebe Anderson told the Messenger. "I think it is a very dangerous thing for prosecution to proceed with a charge or an enhanced charge based on a person’s HIV status. Typically these prosecutions are based on ignorance about HIV transmission. These prosecutions add to ignorance in the general public about HIV transmission, and they certainly add to the stigmatization of people living with HIV."
According to Anderson, the anti-terror law has been misapplied in this case.
Hannah can be reached at hclaywareham@baywindows.com.
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