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posted Friday, June 15, 2012 - Volume 40 Issue 24
HIV-positive saliva not a deadly weapon, NY court rules
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HIV-positive saliva not a deadly weapon, NY court rules

by Mike Andrew - SGN Staff Writer

New York's highest court has ruled that the saliva of an HIV-positive man cannot be considered a deadly weapon.

The state Court of Appeals on June 7 unanimously overturned the aggravated-assault conviction of David Plunkett, who had been convicted of punching and biting a police officer.

Plunkett, who has a history of mental illness, was charged in 2006 after an incident at a clinic where he was a patient. According to court documents, the clinic called police after Plunkett caused a disturbance, and he then assaulted one of the responding officers.

Under New York law, an assault becomes 'aggravated' and carries a greater penalty if the perpetrator uses a deadly weapon or a dangerous instrument. Simply punching or biting an officer would not normally meet this criteria.

However, the original trial judge considered an HIV-positive person's saliva a deadly weapon, thereby making the bite an aggravated assault.

The Court of Appeals dismissed the aggravated assault conviction, ruling that saliva should be treated the same as teeth, which in 1999 were deemed not to be dangerous instruments on the grounds that body parts come with the person, are not instruments or weapons, and therefore do not increase criminal liability.

A number of studies have found saliva does not contain a sufficient concentration of HIV to transmit the virus to other people. According to the Centers for Disease Control and Prevention, 'contact with saliva alone has never been shown to result in transmission of HIV.'

Scott Schoettes, HIV project director for Lambda Legal, said Thursday's ruling is the first in the country to state explicitly that no body part or fluid can be considered a deadly weapon.

'It's an important step forward' for HIV-positive people, said Schoettes, who wrote a brief on behalf of Plunkett. A contrary ruling, he added, would 'criminalize HIV.'

According to the Associated Press, the officer who was bitten did not become HIV-positive, even though Plunkett's bite broke his skin. As a precaution, the officer took antiviral drugs for months after the incident.

Jeffrey Carpenter, assistant district attorney of Herkimer County, where the assault took place, was critical of the court's ruling.

Plunkett also urinated, defecated, and bled during his struggle with the officers, Carpenter said, but the court's ruling applies not just to all body parts but also to all bodily fluids.

'I think the decision will place not only the general public but certainly our first responders - be it police, firefighters, EMTs or paramedics - in grave danger in the future,' Carpenter added.

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