Chicago Tribune (CT) - TUESDAY November 9, 1993 Edition: NORTH SPORTS FINAL Section: CHICAGOLAND Page: 1 Word Count: 1,135
William Grady, Tribune Legal Affairs Writer

Or, they argue, someone with AIDS could face the threat of criminal prosecution for shaking hands with a sweaty palm, or sharing a communion chalice during a religious service.

It doesn't matter that doctors say the risk of becoming infected with the human immunodeficiency virus from exposure to perspiration or saliva is believed to be negligible.

The Illinois statute could impose criminal penalties on any behavior that might be found to transmit HIV, according to lawyers for the American Civil Liberties Union.

Should the law then be judged on how it might be interpreted or rather on how prosecutors have used it so far?

That is one question confronting the Illinois Supreme Court this week as it considers a constitutional attack on the law by the ACLU and others.

Only a handful of people have been charged with criminal transmission of HIV since the law was approved in 1989. Among them are two men accused of rape, a young woman accused of having unprotected sex on several occasions, and a man convicted of sexually molesting a 9-year-old boy.

The justices are being asked to balance the privacy interests of individuals against the state's legitimate interest in protecting the public from a disease that has claimed more than 6,700 lives in Illinois.

Underlying the legal arguments is the view, expressed by many public health experts, that criminal laws do little to halt the spread of AIDS, although the courts have often said their role is to pass judgment only on the constitutionality of statutes, not on the effectiveness of policy choices made by legislatures.

The Illinois law allows state prosecutors to bring felony criminal charges against anyone who, knowing he or she is infected with HIV, engages in activities-including intimate contact, donating blood or sharing dirty needles-that could transmit AIDS. The penalty upon conviction is 3 to 7 years in prison.

Prosecutors don't have to prove that a person has actually infected another person with HIV to bring charges under the law.

The key issue is whether the phrase "intimate conduct," which the law defines as any exchange of bodily fluids that could transmit HIV, puts people on notice as to what conduct is prohibited.

"Instead of identifying specific acts that are prohibited, the law requires people who are infected with HIV to be pathologists and understand exactly the manner in which HIV is transmitted," said Harvey Grossman, legal director for the Illinois ACLU.

Oral arguments before the court are scheduled for Wednesday in Springfield. A ruling is expected next year. At least 27 states now have some sort of law criminalizing conduct that could transmit HIV, according to the Intergovernmental Health Policy Project at George Washington University in Washington.

But the Illinois Supreme Court is believed to be the first state high court in the nation to consider a direct constitutional challenge to a law of this type.

Some states, such as Delaware and Indiana, allow for criminal charges only if an HIV-infected person donates blood. Other states prohibit people from engaging in sexual acts if they know they are HIV-infected. Louisiana's law, for example, provides for a fine of up to $5,000 and a prison sentence of up to 10 years of hard labor for exposing others to AIDS through sexual contact without their knowing consent.

There have been about 300 prosecutions in the United States of people accused of infecting others with HIV, either under general criminal laws prohibiting assaults or reckless conduct, or under laws specifically aimed at conduct that could transmit AIDS, said a law professor who has tracked such cases.

"Now, what we have is a general societal acceptance of the idea that retribution and punishment have a place in fighting disease," said Lawrence Gostin, executive director of the American Society of Law, Medicine and Ethics in Cambridge, Mass., and a visiting professor at Georgetown University Law Center in Washington.

The Illinois law has been challenged by attorneys for Caretha Russell and Timothy Lunsford, two Downstate residents.

Russell, 20, of Belleville, was charged with four counts of criminal transmission of HIV in December 1991. According to written arguments filed with the Supreme Court, she had sex with a man she had just met on four occasions during a week in October 1991.

Lunsford, 25, of Charleston, was arrested on charges of sexually assaulting a 19-year-old Mattoon woman in July 1992. She was discussing the possible purchase of LSD from him at the time, according to police reports.

One of his lawyers, Gregg Bonelli of Mattoon, denies the charges and suggests the woman consented to having sex with Lunsford.

There is little evidence in the public record because the trial judges, in separate decisions, ruled that the state's law was unconstitutional. Judicial reviews of the law so far, though, have been mixed.

In another case, a state Appellate Court panel this year upheld the conviction of a Downstate man charged with sexually assaulting a boy and criminal transmission of HIV.

The ACLU argues that the phrase "intimate contact" is " unconstitutionally vague, because it fails to explicitly identify what conduct is prohibited and what is allowed."

Sexual intercourse might be prohibited, say lawyers for the ACLU, but what if a condom is used? Does that make any difference?

The ACLU's written arguments filed with the state high court contend that people with AIDS "might be prohibited from bearing children and engaging in a vast array of harmless day-to-day activities, including using a public toilet, riding an elevator and shaking hands with sweaty palms."

Lawyers for Lunsford also raise 1st Amendment issues.

Bonelli and Michael Closen, a professor at John Marshall Law School in Chicago, contend in written arguments that the law will discourage people from being tested for HIV and deter them from speaking out about their illness.

Prosecutors contend, though, that both Russell and Lunsford should have known that sexual intercourse carries the risk of transmitting HIV.

Prosecutors contend the theories offered by defense lawyers are irrelevant and neither case involves 1st Amendment protection.

The Illinois attorney's general's office declined to defend the law, though a spokesman for Atty. Gen. Roland Burris wouldn't say why. Burris' name is on the written arguments, but the appeal has been handled by lawyers for the state appellate prosecutor's office.

Though the ACLU is not in favor of such laws, Grossman said, other states have passed statutes that better define what is prohibited.

Gostin said people with AIDS should refrain from conduct that risks spreading HIV.

"But these laws have no public health value and are detrimental to public health goals," he said.

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