San Francisco Examiner - January 16, 2004
Sabrina Crawford, Staff Writer

"This is a very complex case with a lot of legal nuances," said Sarah Whitehead, director of communications for AIDS Action.

In the current case, Marty Tagle, 36, of San Francisco faces criminal charges on multiple counts of lewd and lascivious conduct, sodomy and oral copulation with a 16-year-old boy he reportedly met through a chat line.

Tagle, who knew he was HIV positive, is additionally facing a so-called "sentence enhancement," which carries a penalty of up to three additional years for exposing the boy to HIV through unprotected oral sex.

Typically, most HIV/AIDS activism organizations oppose the imposition of criminal penalties expressly on the basis of a person's HIV status. But so far in this case, prominent groups, such as The San Francisco AIDS Foundation and the state Office of AIDS, have declined to comment on the case.

AIDS Action agreed to share its general philosophy on HIV-related criminal charges, but said because of the complexities, they could not say definitively whether such standards should apply in the Tagle case.

"This story goes beyond our purview," Whitehead said. "As a general policy, we think a law that imposes additional time to a sentence solely based on HIV is a bad idea. In general, we believe it's a medical issue and should be treated in doctors' offices, not in courtrooms."

The enhancement law came into being amid a frenzy of HIV transmission-related statutes that began in 1986. When the series of laws was enacted in California, AIDS activism groups fought them tooth and nail. While the groups were not able to fully block the creation of the laws, activists won a partial victory by putting specific "intent" requirements into the wording of new laws.

Just as it sounds, "intent" means in this state, the majority of criminal charges related to HIV transmission, victims must prove not only that someone exposed them to the virus, but that it was intentional.

Again, the Tagle case doesn't fit the mold. Because a minor cannot legally consent to sex with an adult -- the traditional concepts of "intent" along with "consent" go out the window.

Since HIV transmission criminal statutes were added to the books in 28 states, there have been 316 prosecutions of persons for exposure or transmission of HIV from 1986 to 2001, according to a study conducted by the HIV Law project.

Of the 228 cases that were decided, 164 resulted in convictions. Another 20 cases involved "sentence enhancement" such as being proposed in the Tagle case. Experts remain uncertain whether such laws actually act as any sort of deterrent.

"There may be more effective ways to change people's behavior," said Zita Lazzarini, director of the University of Connecticut Health Center's Division of Medical Humanities, Health Law and Ethics, which conducted the study on HIV prosecutions. "Perhaps a better way is to promote the use of condoms. That way people are safe, even if they don't talk to their partners about possible infections prior to having sex. They don't have to rely on what people say."

Nevertheless, Deputy District Attorney Steve Wagstaffe said he looks forward to the opportunity to use the little-known law to add to the punishment if Tagle is convicted of statutory rape.

He, like the majority of DA's, sees the issue differently, arguing as the law does, that if a person, knows he is HIV positive, and exposes another person to the potentially life-threatening virus, additional charges are appropriate -- since the person in question in putting another individual's life at risk.

But on at least one score, the two sides agree. In Tagle's case, the crime first and foremost is sex with a minor. Tagle's HIV status and any potential sentence enhancement that could come of it, is secondary.

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