Guest Blogger

South Dakota's AIDS offenders

Filed By Guest Blogger | January 20, 2008 3:45 PM | comments

Filed in: Living, Marriage Equality, Politics, Politics
Tags: HIV/AIDS, legislation, non-profits, South Dakota, Thomas Heald, willful infection

[EDITOR'S NOTE:] The following guest post comes to us from Thomas Heald. When not slaving away for "The Man," he has researched and written for Ogilvy Public Relations, David Letterman’s World Wide Pants Inc., RawStoryQ/, a long running "mutated TV guide" listings column at both, and TV Thomas has guest posted before.

Presenting South Dakota Senate Bill 65:

FOR AN ACT ENTITLED, An Act to define intentional exposure to HIV infection by sexual intercourse as a sex crime subject to registry as a sex offender.
Section 1. That ß 22-24B-1 be amended by adding thereto a NEW SUBDIVISION to read as follows:

Intentional exposure to HIV infection as set forth in subdivision (1) of ß 22-18-31.

The Background

Under SD state law (passed in 2000), each count of intentionally spreading HIV (A.K.A. "willful transmission") is already a felony punishable by up to 15 years in prison and/or a $15,000 fine.

This would add the punishment of sex offender status, thus adding a "Scarlet Letter" to their conviction, which would add restrictions on where they could live (1000 feet of schools churches, etc.), and allow neighborhood searching and registration so that families can "protect themselves" and/or unofficially harass the offender.

It was entered into the process by seven Senators and twenty-three legislators in the statehouse. (The better, it would appear, to conceal its authorship. It can be assumed that Focus on the Family is the bill's true author.)

A little Q&A

A number of first questions come to mind, among them:

  • "Why South Dakota"
  • "Why AIDS?"
  • "Why now?"

The not-so-easy answers:

South Dakota had the highest jump in the last collected statistics. While still regularly the 50th in the nation in terms of cases, the jump from 315 to a total of 350 in a year's time is dangerous, not just on paper. When the annual CDC data is revealed, the Right-leaning (Red-State) newspapers routinely slant the story in a manner that makes the "low" rate something to celebrate although it means we get the least amount of funding to deal with AIDS.

And in Rapid City, "the AIDS care is primarily AZT, which is pretty much the last drug someone who's HIV+ should have," notes "Jonathan," a friend who recently moved West for substantially better care. [This decision, he says, "caused great alarm" to one of the leaders of one of Rapid City's minimalist AIDS groups because it meant his group (and the state) would get less money because the figures would subsequently be lower.]

It's possibly an attempt to expand the sex offender definition (and probably some part of a Trojan horse in terms of "shame laws") and/or a step toward the Orwellian '80s and early '90s dreams of Mike Huckabee and Lyndon LaRouche to "isolate" anyone with AIDS. Not that concentration camps and/or leper colonies should be envisioned. This is the era of "compassion" after all. The additional legal status would seem to be an attempt to make living anywhere in the US (under Megan's Law) more inconvenient. The sentences in SD under the 2000 law have routinely been reduced and/or suspended by sympathetic judges who seem to feel that punishment for "someone living with a death sentence" is redundant.

And as noted, the Mt. Rushmore state is one of many that prefers to treat AIDS more as a criminal offense than a public health issue. Where better to make a case for this new sex offender status than a state that tried (unsuccessfully) in 2006 to be the first to ban abortion and banned same-sex marriage (for the second time), albeit by only a two percent margin?

How to respond

This doesn't even take into consideration the complexity of challenging a bill that is intended to be a slam dunk for its backers in a legislature willing to pass it.

The burden of proof for any legislator or group urging "NO" is to successfully argue that someone who would likely labeled a murderer under the law should be labeled a sex offender on top of judicial punishment.

How is spreading AIDS when you know you are a carrier not worse than (or even equal to) the lurid crime of child molestation/rape?

Adding another layer: it's difficult for the just-organizing and relatively green GLBT-championing Equality South Dakota to argue that the bill is "anti-gay" when all of the the leading cases which have been fought in court have been heterosexual accusations. That GLBT groups wind up as one of the few defenders of AIDS adds to the perception that it is a gay concern.

[A 19-year-old Huron, SD college basketball player was initially given a suspended five-year prison term with 120 days in jail, and 200 hours of community service, (which was restored to 4 years in prison when the dummy managed to find a substantial amount of marijuana during a 5 1/2 hour absence, during which he was supposed to be registering for college classes); and a 2003 Aberdeen, SD case resulted in 45 days in jail and five years probation for a bisexual man for infecting his ex-wife; while a Rapid City judge gave a defendant an eyebrow-raising 4 days jail time to be served in 2 day spells over a two year period (so that her infant child was not unduly punished for the drunken act which constituted her conception.)]

The unintended consequences

Meanwhile, a female client of another Rapid City AIDS group continues serving 7-10 years at a women's prison in Lusk, Wyoming for exposing her equally promiscuous lover (whom she met on the internet in 2001), who had never taken an AIDS test even though his active hetero sex life put him in (as they only seem to call it in homosexuals), a "high risk group." Thanks to the ever mutating quality of the AIDS virus, it's not just improbable to "fingerprint" a strain of the disease, but medically impossible at this point to prove with 100% certainty that an accuser might not have been previously infected.

Under willful transmission laws, the crime is the act of unprotected sex and the non-revelation of HIV status. As analogies go, the bullet (the virus itself) doesn't have to strike, much less kill, the target. The illegal act is firing the gun.

Charges in South Dakota do not have to be pressed by the "infectee" or the "infecter." Cases have been prosecuted under SD law when the HIV+ individuals' doctor alerted police to the admission of sexual activity.

The unintended consequences of this law (and the initial 2000 criminalization of willful transmission) are two pronged. One is that it discourages individuals who think they might be infected to get the medical test which could not just give them the oh my god my life is over moment, but then potentially send them to jail . Adding the additional punishment of public shaming upon completion of any court sentence and monetary damages is that it heightens the chances of community vigilantism -- just what a freed prisoner needs to complicate the life sentence of the rest of their already shortened life.

Boiling it down

That South Dakota Senate Bill 65 is unnecessary is beside the point. To quote the title of Paul Waldman's 2006 book, "Being Right Is Not Enough."

Boiling down an argument against this law to bullet points that would actually work is beyond my capabilities and I've been at AIDS work and following these issues with local interest for close to seventeen years.

Aside from finding high ranking medical AIDS experts in SD (hopefully someone in the state health department) that think the law would do more harm than good and would be willing to go on the record with a medical (not personal) opinion that it is not bad law, but unnecessary and damaging precedent/law. And likewise seeking out unbiased (no affiliation to the gay groups) psychological and psychiatric experts who have AIDS patients (that's gotta be a bit muddy doctor/patient privilege waters) that will offer the same clinical opinion as the doctors/nurses/health workers.

I know there's the whole "there was no one to speak up when they came for me" liberal guilt and all in wanting to go in guns blazing, but that's the wrong way to do this. This is a bear trap waiting to be stepped in for anyone on the "NO" side. The personal struggle is I haven't decided whether a law adding an additional consequence to this grotesquely despicable act ultimately should be fought.

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Sex offender laws always seem like a good idea until you stop and think about them and the unintended consequences. One town in Georgia has an issue now - the only place offenders can live is under a bridge. Literally. Otherwise they're too close to schools, churches and the like.

I don't have any sympathy for those who cannot or will not control their sexual urges, and direct them into a more appropriate venue.

This article brings up an entirely different issue the intentional infection of one person with life long and terminal (from the collateral damage) disease. Nevada has a law that makes it a felony to infect someone while engaged in prostitution. This law and others like it are justified.

if you have any alternative way of dealing with people who are sex offenders i would sure like to hear it.
Always open to new ideas...
Take care

Thomas, thanks for this extensive and thoughtful post, although I must admit that I'm perplexed by your final sentence. Are you saying one shouldn't fight against the law because it's guaranteed to pass?

First, a minor bit of logrolling. Thank you for the compliments, Mattilda. I loved "That's Revolting" and just pimped it again in one of my columns.

My moment of self loathing over the bill is that if Housing Works or NGLTF or AMFAR proposed the same bill (that's so obviously been handwritten by the vulgar ruling class of the Right) I might be more wholeheartedly FOR it.

While the bill is meant to nail the Typhoid Marys of AIDS who are out there (and I have learned of one horrible case in South Dakota whose details I shant go into on a public forum like this), the people actually being prosecuted have not particularly been doing the transmission with malice aforethought.

It's the "I was drunk/high and so were they," "Ex wife seeking revenge that she was dumped for another man" and "promiscuous idiots that didn't care if they infected others" that get punished (if not very much).

And I would argue that the GLBT community shouldn't defend the Typhoid Marys (which is probably some drag football team somewhere).

Thomas Heald | January 25, 2008 6:32 AM

Senate approves HIV legislation
By The Associated Press Friday, January 25, 2008

PIERRE -- The South Dakota Senate decided Thursday that people who are convicted of intentionally infecting sex partners with the AIDS virus should have to register as sex offenders after release from prison.

Sen. Sandy Jerstad, D-Sioux Falls, said that would warn the public about the danger those people present.

"There'll always be a certain small portion of our population who set out to intentionally harm others by committing sex crimes," she said.

Two people in the state have been convicted of intentionally infecting others with HIV, Jerstad said.

She said the maximum prison term for the crime is 15 years in prison, but the victims must face the fear that they'll get AIDS.

"Those victims will have to take HIV tests for years, and they live with the consequences of this crime for the rest of their lives," Jerstad said.

SB65 cleared the Senate 34-0, sending the legislation to the House.

To reduce sex to such mechanistic terms as set by the South Dakota government is self-defeating because wears away its intellectual and moral credibility. We all know perfectly well that sex in many cases is the result of short comings in adherence to traditional values, such as marriage, characteristic of an emerging Romanticism and rejection of Rationalist Philosophies. We know that sex is more than a mechanical act when involving humans. Sex is an act tied to both Conscious and Unconscious variables constituting what have come to call "Love". "Love" along with "sex" as a vehicle to "Love" is a psychological need. South Dakota has debased those living with HIV to those sub-human and inferior. The South Dakota government would like to deny that it is not participating in an open campaign to debase and depreciate not only the intrinsic value of carriers, but also cast shame preemptively on relationships between those who are carryers and those who are not. South Dakota is not the most equipped state to handle such a Health Crisis. Adding more reasons to fear seeking Health Care by making bogus Moral Arguments on what at best is a Moral Hazard has changed the public behavior, not in sexual practices, but in treatment of those who fall into the public assumption of being HIV-positive. South Dakota forces a pessimistic self-understanding not characteristic of an egalitarian society. South Dakota has weighed human life in front of the public according to obscure and non-traditional variables. These variables, health and life expectancy upon consideration of current and future medicine and behavior stemming from the "will to survive" is a demonstration of unacceptable arrogance because it is obvious that the government is intellectually unqualified to make predictions about the future outlook of those living, including those with Hiv.