Wednesday, February 11, 2009

According to at least one prosecutor's interpretation of the law, HIV+ people in Kansas can't have sex. No matter how consensual. No matter what precautions are taken. No matter how willing and informed the non-infected sex partner is.

Like many (most?) states, Kansas now has a law prohibiting the transmission of infectious diseases. The law was a response to horror stories of people infected with HIV having unprotected sex with lots of pretty, young women with the goal of spreading the virus to as many people as possible. Sure, that's bad behavior by those few, isolated individuals. (Although, come on ladies, protect yourselves. Don't let the guy get away with saying he doesn't want to use a condom. Didn't you take sex ed or watch any after school specials? In the words of one classic special, no balloon, no party!)

But I don't think the law was intended to criminalize any and all HIV+ individuals having sex. This article includes the statement that it is a felony for a person who knows he carries the virus to engage in sexual activity. As far as I can tell, that is the prosecution theory: that the defendant engaged in sexual activity knowing he could transmit the virus (no matter how remote the likelihood of transmission). It has to be because the "victim" has said he was fully aware of the defendant's status and that they did not engage in certain acts so as to minimize the risk of transmission. Where on earth is the crime? The statute requires that the defendant engage in the sexual activity with the intent to expose the other individual to the life threatening communicable disease. The state in this case seems to think that intent is satisfied simply by an HIV+ person having sex with an uninfected partner.

Is this a crime because the 18 year-old "victim's" mother didn't like the fact that her son was having sex with a man? I have to believe that would be about the only way the police would hear about completely consensual sex between two adults. I would guess an awful lot of HIV+ Kansans are having sex without facing prosecution because there isn't some disapproving buttinsky calling the cops. Which is pretty much exactly how it should be. Because even HIV+ people have a pretty basic right to privacy in their consensual sexual encounters. Really. Read Lawrence v. Texas and tell me how I'm wrong.

So is this a twisted application of the law just because they don't like this particular defendant and his tendency to have gay sex with younger guys? (Bad fact alert: this defendant does have a 2001 conviction for criminal sodomy involving an 11 year-old boy. But the fact of his prior conviction is totally irrelevant here and doesn't render this completely legal, consensual encounter anything criminal.) Or is this prosecutor just stuck in 1988 modes of thinking about AIDS? Because back then, we all thought there was no safe sex with an infected person. But in 2009, we all ought to know better. And for crying out loud, a prosecutor who intends to pursue a felony conviction has an obligation to learn the realities of HIV/AIDS today. It's quite possible for people to have sex without infecting a partner. It's certainly not criminal.

UPDATE: I hadn't seen this last night, but the jury has already acquitted this guy.


Gideon said...

I was all like, "What kind of crazy prosecutor would even charge this!" Then I read the article. Reno County explains it all.

S said...

Reno County indeed. My favorite detail of the story is that the first trial date had to be continued because too many members of the jury pool said their prejudice against gays would affect their verdict. Ugh. So if a trial has to be continued because the jury pool is filled with bigots, shouldn't that time count against the state for speedy trial purposes?

Kudos to the defense attorney who managed to overcome all the bias at play in the case.

Anonymous said...

Before you laud this decision, you might wish to read a little about the so-called defense attorney Kelly Driscoll. Let us hope you have more legal ethics.

S said...

I would ask all of my readers to refrain from using my blog as a platform for spewing unsubstantiated, and anonymous, rumors besmirching people. It's easy to hide behind an anonymous comment and proclaim someone to be lacking in ethics, but it's pretty damn cowardly, too.

Kelly Driscoll does not have any published disciplinary actions against her. A google search, also, did not reveal anything that would lead anyone to question her ethics.

Based on her performance in this particular case, where from everything I've read the just verdict was reached, Ms. Driscoll zealously advocated for her client who was, in my view, unjustly charged. So again I say kudos to her for her work on this case.

Anonymous said...

One might add that it particularly cowardly of the blogmeister to remain anonymous from anytown, USA. People in glass houses...

A little more research brainiac beyond you really have a law degree...would reveal more. Now, back to your sick pup.

(By the way, if case you are not aware...a public forum is public.)

S said...

There's a pretty big difference between a blogger maintaining some minimal level of anonymity and an anonymous commenter dropping one inflammatory claim and then running. Anyone who actually reads my blog regularly knows an awful lot about me and could fairly easily figure out exactly who I am. It's not a secret, but it's my choice not to advertise my identity.

But I've never hidden behind my "anonymity" to call out any other attorney by name and accuse that attorney of being unethical. And I would never do that if I weren't fully prepared to back my claim up with specifics. Do you still not see the difference?

You dropped an inflammatory claim without any support or id'ing yourself in any way. In the criminal law world, that claim would most certainly not provide probable cause for a warrant, so no, I didn't do much looking into your claim. I did look for disciplinary actions and used google. That seemed above and beyond the call of duty to me, but I didn't want to leave your comment against the attorney on my blog without providing some factual information for my readers.

In the law, the person making the claim (that would be you) bears the burden of proof and the burden of production. I have no burden whatsoever to verify or disprove your claim. And in the law, we presume a factual statement without a cite to the record does not have any evidentiary support behind it, so we disregard that statement.

In any public forum, I would call out the person who would say, "So-called attorney Joe Blow is unethical!" I would always respond that I will not accept your unsupported claim. It may be a public forum, but those making accusations need to do so responsibly. And they need to accept the scolding they'll get otherwise.

Anonymous said...

Anonymous is a douche bag. See responses to this section.

Meryl said...

Although it leads to tortured situations sometimes also, I think this is reason number one why the "mandatory reporting" ethical rules make sense. (Basically, if you're an attorney and you believe another attorney has done something unethical you must report it or you will be guilty of an ethical violation yourself.) In practice, this means that if you're going to say another attorney is unethical you have to be willing to own up publicly that you're doing so--none of this anonymous commenting and gossiping behind other's backs.

Nice win Ms. Driscoll!

lu said...

i have never heard the defense of staying relatively anonymous on a blog put in legal terms nor have i heard it said so well.

and thank you for your well wishes, you are quite right that if words come from a place of caring and support they can never be wrong.

Anonymous said...

Alas, your specious argument on anonymity suggests that public access is reserved for your obsequious sycophants who trail behind you in servile lockstep. These "pooper scoopers" respond by massaging your ego, a key component of the "Y Gen." Anonymity is a required to avoid the vendettas of correspondence school lawyers who form the core of public defenders (except in Kansas where they derive from community colleges and KSU). With respect to the case in question and, if your band of toadies still reads newspapers, you will soon learn of a more nuanced situation than you described...all of which was clear to the folks at 125 East Ave. B or at Allies on Main (Hutchinson). Driscoll is no heroine.

S said...

Anon, I'm restraining myself from making some snide comment about your over-use of big words. I'll just say that in this comment, it appears a tad pretentious. Oh, and some would say using obsequious, sycophant, and servile in the same sentence is redundant.

I get that you don't much like or respect public defenders. That's your prerogative and I don't care. I'm certainly not going to change your mind. But I will say that I know many fine lawyers who graduated from KSU, and all of the pds I know went to real, accredited, brick-and-mortar law schools. (In case you're wondering, both my undergrad and law degree are from reputable schools that are not in Kansas.)

Now let me take another stab at explaining my problem with your original comment. Obviously, I don't object to anonymity on the internet. I'm semi-anonymous myself and I obviously allow anonymous comments. I also don't moderate my comments, so pretty much any opinion goes on my blog. And obviously, I don't have any restrictions on access. But it is still my blog, so I do get to lay some basic ground rules.

The only rule I have yet set is that I don't want my blog to be used as a platform for people to spread rumors. Your comments, thus far, have been nothing more than rumors. Now, when you want to make accusations against someone, there are two basic things you can do to lend credibility to your accusation: identify yourself or provide specific information. (In case it's not clear, identifying yourself would lend credibility because it shows you are willing to stake your reputation on your claim.) I do not ask or expect anyone to do both. Each person can choose for him/herself. But you did neither.

I understand your desire not to identify yourself. I am A-ok with that. But then don't accuse someone of being unethical without providing the specifics to back up your claim. I do not think this is too much to ask.

You have yet to write anything specific about why this attorney is unethical. Reciting addresses and locations from Hutch doesn't do anything to show that you really know something about the attorney's behavior. You are the person making the accusation, therefore you bear the burden of providing some basis for your accusation. You have not. Therefore, I reject your accusation entirely. It is not because you choose to remain anonymous. It is because you choose to both remain anonymous AND refuse to provide substantiation for your claim.

Oh, and I'm not Gen Y.

The bottom line here is this prosecution rested on a highly problematic (and unconstitutional) interpretation of a statute. The jury reached the right decision, as far as I'm concerned. So, yeah, I think the defense attorney did a fine job on this case.

One Girl's Opinion said...

S - go check out and put the code on your blog. It'll give you IP addresses and at least city and state of those looking at your blog. It's helpful. Plus, it'll tell you how much traffic you are getting!

Anonymous said...

Sorry that my vocabulary thwarts you, I too shall restrain my response except to say that your fallacious attribution of pretentiousness and redundancy to my comments is much like the pot calling the kettle black. Surely, your legal educators taught you to be a tad more succinct in order to retain the attention of your audience.

Clearly, it is your blog. It is a apt suggestion (from one of your "pooper scoopers") that it be coded since with another little tweak you can make all the bad comments go away. A wise American historian (of your acquaitance) once spoke to me about censorship in another context, but if the shoe fits...

At this time, I hope that you continue to follow local papers on the noted case for some clarifiying developments on my "gossip."

Anonymous said...

Who talks like that?

S said...

Gee, I'm sorry my comment was too long for you to read through, but since you didn't seem to be getting it, I felt the need to explain myself thoroughly. I'm not sure what else I can write to make you get it.

But where the hell are you getting this censorship crap? How have I censored you in any way? I have not even deleted any of your comments, though I could. I have asked you to explain yourself. That is all. And I have to note that you have not ever explained yourself. Furthermore, the Hutch News online has not had any updates on the case. Maybe you shouldn't rely on a small-town newspaper to speak for you.

Please get off your high horse.

Anonymous said...

I always prefer the high horse to the low road to which you and Shawn have succumbed.

Slurs on small town newspapers reach a depth even for you.

S said...

I'm not sure you should be claiming I'm the one taking the low road. You're the one casting aspersions on people without providing any support whatsoever. And you've been pretty insulting towards me and many of my readers.

And that wasn't a dig on small town newspapers - it was a dig on you. Sorry if that wasn't clear.

Anonymous said...

Clarity is not finest quality, although you do have a way with words, which may be termed logorrhea. I accept your apology.

chris said...

Just as a voice sticking up for Ms. Driscoll. I went to law school with her. She was in my class, she was in my section. We both went to Washburn University School of Law - which is an excellent law school. She never did anything while we were in law school together (not that long ago) that would ever make me willing to think or believe that she would deliberately act unethically. I've handled many cases where Ms. Driscoll was the trial attorney and I don't recall seeing anything that would suggest that she was unethical or unprofessional. I would have remembered if I had.

But in all honesty I don't understand what Ms. Driscoll's ethics - good or bad - have to do with a badly prosecuted case. I also don't understand why "anonymous" is so up in arms about Ms. Driscoll's ethics and has nothing to say about the ethics of the prosecutor who decided to prosecute a case like this.

Anonymous said...

O.K., who said I took the high road? I prefer the low road. It's so much more fun! (BTW, thank's for using my first name. That narrows the pool down considerably).

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