The San Francisco Examiner - May 15, 2002
David Kiefer, Of The Examiner Staff

The 36-year-old businessman was given HIV by a partner who denied having the virus. Although the act of blatantly lying and infecting a partner with HIV may be cruel and punishable in many states, it is not in California, which means Lister and thousands of others who may contract the fatal virus have no recourse in criminal court.

In a state where AIDS has claimed the lives of nearly 76,000 people, Lister is baffled by an HIV disclosure law that puts the onus on the victims to prove it was their partner's intent to infect them.

"The idea was that it wasn't so easy to put people in jail for having consensual sex," said Jon Davidson, senior counsel for Lambda legal. "I think people are skittish about the law invading the bedroom."

Therefore, prosecution is "nearly impossible," said Roland Foster, a congressional aide on the subcommittee for Criminal Justice, Drug Policy and Human Resources. "Unless you have a confession in your hand, it's a very high bar. The law is pretty much meaningless."

Meanwhile, it is expected that at least 1,000 residents of San Francisco will contract the virus this year -- many through sex with partners who refuse to disclose their status, which is how former San Francisco Health Commissioner Ron Hill gave it to Lister.

The two had been dating for about five months, when they decided to embark on a cruise to Alaska. Out on the open sea, Lister found a document in their cabin that indicated Hill was HIV positive. Hill had lied to Lister about his status early in their relationship and continued to deny it after Lister confronted him upon returning home.

"What's this?" Hill said.

"I think you know what it is," Lister countered.

Lister broke off the relationship in August 2000 and he tested positive in October. He wanted to file criminal charges, but the San Francisco District Attorney's Office was convinced intent could not be proven.

He countered with a civil suit and collected $5 million in damages March 27. In recent weeks, Lister said, he's been told the DA is considering re-opening the investigation.

"In my mind, when you're in a relationship with someone for five months and proclaim you're HIV negative, and they're having unprotected sex with you, there is some form of intent," Lister said. "This was not a one-night-stand type of situation."

If he could do something so terribly wrong to me, Lister thought, how many others could he infect?

"I wasn't trying to be an advocate," Lister said. "I was trying to do the right thing."

If Lister is successful in his criminal pursuit, perhaps others will come forward. Right now, however, no one seems interested, and the law, amended several times to satisfy gay lobbyists, is partly to blame.

"The concern people have is that, because of the disproportionate fear of AIDS and the anti-gay sentiment, we shouldn't have special rules just for AIDS," Davidson said. "People talk about Russian roulette, which is a one-in-six chance. But actually killing someone, even with unprotected sex, is one-in-500. Is it still Russian roulette when the risk is significantly less?"

Foster said other charges might be more effective, such as reckless endangerment, reckless disregard, or assault.

Others don't think this is legal problem at all.

"No matter what law you pass, I don't know if you can prevent (the failure to disclose), which happens once in a blue moon," said Michael Siever, director of the Stonewall Project, which provides funds for community groups that challenge discrimination.

"The bigger problem is a conspiracy of silence," Siever said. "There's an assumption that because of inhibitors and new medications, people aren't dying anymore. We're dealing with a lack of urgency. That level of fear isn't there anymore and there's not that constant reminder to disclose."

The urgency was there in 1986 when the AIDS death rate, with a half-year diagnosis, was at 97 percent. Last year, the death rate was down to 10 percent.

Despite the drop, the number of annual HIV transmissions nationally has remained at 40,000, and has evolved across gender and racial lines.

Women accounted for 30 percent of new infections in 1999 and the annual percentage of new AIDS cases has tripled for women, to 24 percent in 1999 from 7 percent in 1986, with African-American women accounting for 63 percent of those infected.

Between the ages of 25 and 44, AIDS is the second-leading cause of death among African-American men, third among women, and fourth among Latinos.

In addition, at least half of new HIV cases are transmitted to those under 25.

Foster understands there's no simple solution, but he also realizes that lawmakers haven't solved the problem:

"It's a complete loss when you figure we're spending $10 billion a year in HIV prevention and our laws may actually be hindering rather than helping."

E-mail David Kiefer at dkiefer@sfexaminer.com

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