Important note: Information in this article was accurate in 2004. The state of the art may have changed since the publication date.
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San Francisco Examiner - January 9, 2004
Dwana Simone Bain and Sabrina Crawford, Staff Writers
On Jan. 7, San Francisco resident Marty Tagle pleaded not guilty to charges including multiple counts of lewd and lascivious acts with a minor, oral copulation and sodomy.
If convicted, Tagle could also face three additional years of sentencing for exposing the youth to the virus, based on a little known statute never before used locally.
"It's brand new in our county," said Chief Deputy District Attorney Steve Wagstaffe.
Police arrested Tagle the night of Nov. 18 after allegedly discovering the man and his teenage lover having sex inside a parked car on a quiet Daly City street. In later interviews, police learned that Tagle was HIV-positive. The boy, who met Tagle on a telephone chat line, was reportedly unaware of the man's HIV status.
Twenty-four states have statutes criminalizing the exposure or transmission of HIV through spitting, blood donation, or sexual intercourse. California has five laws relating to HIV-specific crimes.
But prosecution is rare. In September, a former San Francisco Health Commissioner, Ronald Hill, became only the second person in the state to face felony charges for allegedly lying about his HIV status and intentionally exposing an ex-boyfriend to the virus.
In the San Mateo County case, whether the youth was aware that Tagle had tested positive for the virus that causes AIDS is irrelevant, Wagstaffe said. Generally the prosecution must prove intent to infect, but not so in cases connected to sex crimes.
Under California Penal Code 12022.85, any adult who is aware of being HIV-positive and who commits rape, or engages in oral copulation or unlawful intercourse with a person under the age of 18 could receive a three-year enhancement sentence for each offense.
At this time the District Attorney's office does not believe Tagle intended to infect the boy with HIV. Under the law intention does not matter.
"We don't have to prove under this that he intended to infect the15-year-old victim," Wagstaffe said.
But whether he used protection or not, he still committed statutory rape, according to Wagstaffe.
"The real offense here is the eight counts of child molestation," he said.
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