New tool for prosecutors: Attempted murder by HIV Infected suspects are called a 'loaded gun'

August 02, 1993|By Ann LoLordo | Ann LoLordo,Staff Writer

MIAMI, Fla. -- 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.

The 31-year-old son of Cuban immigrants, Mr. Perea sits in a Dade County jail today, charged with attempted first-degree murder in the alleged kidnapping and sexual assault of 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 human immunodeficiency virus (HIV).

Mr. Perea, who worked for the family's bird-supply business and lived at home with his parents, is not the first defendant whose HIV status has become the basis for an attempted murder charge:

* In rural Oregon, a former Marine and lay minister is awaiting trial on 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 earlier this month 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 them.

* A Texas burglar with acquired immune deficiency syndrome 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.

The relevance of a person'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 loaded gun.

"The incidents of HIV prosecutions motivated and carried on essentially by prejudice far outnumber the cases where there [is] 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.

Old, new laws applied

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

However, in the Perea case, prosecutors charged him with attempted first-degree murder under a law that doesn't require them to prove an intent to kill, but rather that the crime occurred during the commission of another felony, the alleged sexual batteries.

"Our job is to apply the law. We're supposed 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 Fernandez Rundle, the Dade County state's attorney.

Mr. Perea's 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." Mr. Perea's trial is in September.

"How can you attempt or try to do something you never intended to do?" asks Mr. Levine, whose client maintains his innocence.

Depends on the case

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 blood or sex.

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.

"People in criminal law and the public have to understand that a person's HIV status is a neutral thing," says Michael T. Hogan, a prosecutor in Seattle who co-authored guidelines for handling such cases in Washington state courts.

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