Miami Herald - July 11, 2003
Wanda J. DeMarzo and Hannah Sampson, wdemarzo@herald.com

The jury is still out.

Legal experts have been debating whether Perdita Harris, who is HIV positive, can be convicted for having sex without telling her partner that she has the disease.

A 1997 Florida law makes it illegal for a person who knows that he or she is infected to have sex without informing the sex partner.

Harris was arrested Tuesday after her ex-boyfriend complained to police that she infected him.

But it's a difficult law to prosecute: It could be hard to prove the infected person did not tell his or her partner about the condition, legal experts say.

There usually are not witnesses.

The case turns into a 'He said, she said,' situation," Ron Ishoy, spokesman for the Broward State Attorney's Office, said in an e-mail to The Herald.

It is rare to see complaints filed, said Fort Lauderdale criminal defense attorney Raag Singhal: 'They have to come in and say 'here's what happened to me' and admit they have AIDS or HIV. They have to open their medical files and talk about their sexual history."

Harris' former boyfriend, 44, filed a police report in May after he found out he had HIV, the virus that causes AIDS. He told police he was infected by the woman, whom he had been dating for two years and who, he said, never told him she had the disease.

According to a police report, the woman was infected in 1994 and later married a man who died of the disease. The victim, from Fort Lauderdale, told investigators that in the two years that he was with Harris, he could only have gotten HIV from her.

"It's going to be a tough call," Singhal said. "The state has got to be convinced that there was only one sexual partner."

Norman Kent, director of the AIDS Project Florida, said the number of people infected with the HIV continues to climb, especially among the elderly and young African-Americans.

"But I definitely feel that if someone is infected with the HIV virus they have an obligation to inform their partners," Kent said.

Notification is essential to preventing the spread of HIV/AIDS, which is why the Broward Health Department urges people who have been infected to tell their partners -- or to let the department tell them.

"We try to instill in people the idea that we are not trying to be judgmental, we are not trying to break up families," said the department's health education director Ellen Feiler.

"We are trying to break the cycle by getting people in for treatment."

Still, if an infected person does not want to tell their partner or partners, the department cannot force them to hand over the names so they can be notified.

Many people make the same decision Harris allegedly did. "A majority of people are saying that they do not wish to share their partner's names," Feiler said.

Prosecuting HIV patients is not approved by everyone.

At a United Nations summit on AIDS last year in Barcelona, a paper was presented that asked the legal system to forgo prosecuting people with the disease, said Nova Southeastern law professor Gary Gershman. "Activists say it will inhibit people from coming forward," Gershman said. "It also relieves some of the stigma associated with people having AIDS."

Gershman said the statute has been upheld at the appellate level. In England the law was upheld in a manslaughter case involving a person with AIDS who had unprotected sex.

"If I got this case, you can bet there would be a bunch of constitutional challenges I'd try," Singhal said. "I don't think her ex wants this person that he lived with for two years to die in prison."

A similar case in Polk County has been working its way through the courts.

Louis Cecil Sanders was arrested under the same statute and has been in pretrial detention since January.

"These cases are basically new and rare," said Chip Thullbery, spokesman for 10th Circuit State Attorney's Office in Central Florida. "As with any case where you're using a statute for the first time, there are new issues that come up that we have to work through."

It was new to Sanders' defense attorney Jeff Holmes as well, who said he has an expert looking into the constitutionality of the statute.

"To me, the penalties are far too harsh," Holmes said. "I feel like it's appropriate to go out and find a cure for AIDS, not put people in jail who have AIDS."

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