No one likes to become recipient of a spit projectile, unless, of course, you are swapping it with your significant other. Sharing saliva with your girlfriend or boyfriend certainly is not a crime. Sharing it with that drunk girl or guy you meet in a bar is not a crime. However, two days later ,when you do not even remember the encounter, if you get a call from the Health Department that a known serial HIV boinker or TB (Tuberculosis) carrier was making his/her rounds through the Dallas bars the night you were cruising the same bars, should you become alarmed that the person the Health Department is searching for just left your place an hour ago? .And you thought you were special!
The two most logical questions are: first can you contract HIV or TB that way, and, second, is it a crime to spit on someone knowing you are a carrier?
At least as to the HIV issue, A Dallas, Texas jury has decided that it is a crime to spit on someone when you know you are HIV positive.
Two weeks ago, a homeless man spit in the mouth and eye of a police officer and then taunted him, saying he was HIV positive. On Wednesday, he was sentenced to 35 years in prison for harassing a public servant with a deadly weapon—his saliva. The key part of this ruling was the finding that the saliva should be classified as a deadly weapon.
We will put aside the fact that the guy got 35 years for the crime. The severity of the sentence was affected by the fact that he was convicted under a “habitual offender statute“. He had been convicted of attacking other officers in a similar manner as well as committing more than two dozen other offenses. This mandated a minimum of 25 years without regards to the HIV issue. Let’s take the fact that it was a cop out of the equation as well and get down to the basic issue at hand:
“If you are a carrier of a deadly disease that may, in very rare circumstances, be transmitted by your spit, does that make your spit a “deadly weapon” under the law? If you say yes, does that not open up a whole “Pandora’s Box” of criminal responsibility?
According to the Centers for Disease Control and Prevention, HIV is primarily spread through sexual contact or the exchange of blood or other bodily fluids. Although there have been rare cases of transmission through severe bites, “contact with saliva, tears, or sweat has never been shown to result in transmission of HIV,” the agency reports. You can read the CDC fact sheet on HIV transmission here.
There have been no known cases of HIV being transmitted through simple contact with saliva. Does that mean HIV can never be transmitted through saliva? Never say never, but the odds are remote in the extreme. But when we allow a remote “struck by lightning” possibility to justify a “deadly weapon” finding, are we hearkening back to the AIDS paranoia days of all toilet seats and drinking glasses being carriers of the disease? Was this conviction based on ignorance or science?
If we accept that premise that spit can be a deadly weapon, we also have to accept that the HIV carrier who lets you take a sip of his beer or coke has just committed a crime. If he had evil intent in letting you share the drink, would not the crime be the same taking out the public servant element? If he simply was not thinking about it or paying attention to his drink has he/she committed a crime? You can see where this has the potential to go. The slope gets very slippery. Will it even stop with HIV?
Andrew Speaker, an Atlanta lawyer with multi-drug resistant TB boarded several crowded planes knowing he had the disease, and, in fact, had been advised not to travel without a mask. We know that TB is spread from person to person as the bacteria are released into the air when a person with TB, a disease of the lungs or throa, coughs or sneezes. Amid all the hysteria, I don’t remember hearing much talk about whether any crimes were committed by Mr. Speaker. Did he commit any crimes? He probably didn’t intend to hurt anyone, but intent does not necessarily constitute an element of possible crimes on the books that either he or the HIV carrier sharing the beer may have committed.
You can read the CDC fact sheet on multi-drug resistant TB here.
There is also a crime in many, if not all, states called Reckless Endangerment.
The general definition of reckless endangerment (this can and will vary by state) is as follows:
“A person commits the crime of reckless endangerment if the person recklessly engages in conduct which creates a substantial risk of serious physical injury to another person. “Reckless” conduct is conduct that exhibits a culpable disregard of foreseeable consequences to others from the act or omission involved. The accused need not intentionally cause a resulting harm or know that his conduct is substantially certain to cause that result. The ultimate question is whether, under all the circumstances, the accused’s conduct was of that heedless nature that made it actually or imminently dangerous to the rights or safety of others.”
Now that you know the meaning of reckless endangerment as defined by law, does your opinion change? The issue becomes what is and what is not “reasonably foreseeable” in these situations. Is it reasonably foreseeable that you may contract HIV through saliva? Is it reasonably foreseeable you may contract TB through saliva?
Does Andrew Speaker’s conduct had a greater degree of foreseeable consequences than the homeless guy spitting on a cop? What about Beer Bottle Sallie, the HIV carrier, and Serial Make-Out Artist?
Are we on the verge of criminalizing ignorance or simply disregarding criminal foreseeability?