Miami Herald - Wednesday, December 9, 1992
John D. McKinnon, Herald Columnist

During the Black Death in the 14th Century, many Christians believed the plague was caused by Jews. In some cities, Jews were tried in court, convicted and executed. Christians testified they saw Jews pouring poison into the wells. In other cities, they didn't bother holding the trials.

The efforts these days to prosecute people for transmitting the AIDS virus have a bit of the same hysterical quality, some civil rights lawyers say.

In Houma, La. last month, 28-year-old Salvadore Gamberella was convicted of intentionally exposing his former girlfriend, Darla Trosclair, to the HIV virus during sex. He faces up to 10 years in prison, even though he claims that he warned Trosclair he was infected. She's now got the virus, too.

In Oregon, a 28-year-old man named Alberto Gonzalez was convicted of attempted murder for knowingly exposing a 17-year-old girl to the virus in 1990. Gonzalez was sentenced last week to 5 1/2 years. The woman, now 19, has tested negative for the virus.

Civil rights lawyers say they understand the anger people feel toward HIV-infected people who engage in irresponsible behavior.

But they say that creating special criminal laws to punish them doesn't solve the problem. In fact, it's probably going to make it worse, by discouraging people from getting testing, they say.

"They're going to say, 'If I test positive and I have sex again, they could lock me up for 10 years. So I won't get the testing,' " said Denise LeBoeuf, a lawyer representing Gamberella.

Many of the new AIDS transmission laws also violate constitutional concepts of privacy, LeBoeuf said. "You could wind up dragging in everyone's former sex partners," LeBoeuf said.

Nevertheless, some Florida lawmakers want to expand criminal penalties for AIDS transmission. Rep. George Albright, R-Ocala said he's considering filing a bill that would make it a felony for HIV-positive people to engage in repeated high-risk criminal acts, such as unprotected sex-for-hire. The bill also would create a new kind of house arrest, called criminal quarantine, for people convicted under the law. Albright introduced a similar measure last year. "I have no hidden right-wing agenda to try to hurt people who have AIDS," Albright said. "But I see a legitimate problem with people who are sharing needles or engaging in prostitution. As far as I'm concerned it's manslaughter."

Albright said he doesn't yet favor expanding the law to take in everyone who knowingly exposes others to the virus, however.

"An across-the-board criminal transmission law is probably appealing to a majority of Floridians, but it's probably one of the most complex issues facing us in modern times," he said.

LeBoeuf said existing criminal laws should be sufficient to cover the rare case where an infected person deliberately tries to give the virus to others.

"There are laws on the books in every state that prohibit people from using any novel means to kill or hurt each other," she said.

In the only major case from Florida, an appeals court threw out an attempted manslaughter charge against an infected woman who had been a prostitute, saying the state could not prove she meant to harm the men.

Former state Rep. Lois Frankel of West Palm Beach, who now chairs a state task force on AIDS, said it's a waste of resources to prosecute infected people for engaging in irresponsible behavior.

"The criminal justice system can't even solve criminal justice problems, Frankel said. "It certainly can't solve a public health problem."
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