Washington Blade - May 24, 2002
Rhonda Smith

A grand jury indicted Aberdeen resident William Kenneth Jenigen on six counts of intentional exposure to HIV, a felony in South Dakota. The grand jury indicted his partner, Jay Lee Woods, on three counts of intentional exposure to HIV.

"Our investigation indicates there were numerous individuals who had sexual contact with one or both individuals," said Mark McNeary, the state's attorney in Brown County, S.D., where Aberdeen is located.

"[Jenigen and Woods] knew they were HIV-positive and knew this for an extended period of time," McNeary said. "And they failed to inform the victims prior to contact."

Each case involves three alleged victims, and Jenigen and Woods have pleaded not guilty.

The state of South Dakota has a two-year-old law making it a felony to intentionally expose someone to HIV infection by, among other actions, engaging in sexual intercourse or other intimate physical contact.

An "affirmative defense" in such a case can be made, however, if a defendant convinces the jury that the person exposed to HIV knew the sexual partner had the virus and consented to sexual intimacy with that knowledge.

Judge Eugene Dobberpuhl said Jenigen and Woods would not have to prove their defense "beyond a reasonable doubt" but would only have to convince the jury about what happened, the Aberdeen News reported.

Public defender Scott Kuck, who is representing Jenigen, said he plans to argue that his client's alleged sexual partners knew of his HIV status, even though he did not tell them about it.

Jenigen, 35, and Woods, 41, each face up to 15 years in prison and/or a $15,000 fine for each charge. Both men have requested jury trials but trial dates have not been set.

Jenigen and Woods knew each other in California and were involved in a relationship, but moved to South Dakota at different points in recent years to be near Jenigen's family. The alleged sexual incidents took place between April 2001 and February 2002.

Both men were released this month from Brown County Jail on $25,000 personal recognizance bonds and currently live with Jenigen's sister, Amy Pratt; her husband, Adrian; and their two boys.

Kuck said Jenigen was fired from his job as a bartender at a local restaurant after details about his legal case appeared in a local newspaper. Woods provides child care for the Pratts' two children.

HIV status presumed, men will say

Christy Serr, the public defender handling Woods' case, did not return a call from the Blade for comment.

Kuck said Jenigen plans to testify at his trial.

"My client will say that these people knew [Jenigen and Woods] were HIV-positive," Kuck said, in part because the gay community in Aberdeen is small and tight-knit.

Jenigen previously said the men he had sex with knew he was HIV-positive and still agreed to have sex with him, the Aberdeen News reported May 17. Adrian Pratt, publisher of the Aberdeen News, is married to Jenigen's sister, Amy.

Kuck told the Blade May 21 that Jenigen did not tell any of his sexual partners in Aberdeen about his HIV status. Jenigen was unavailable to comment.

McNeary said the cases against Jenigen and Woods began after an unidentified individual contacted him about the two men. Based on the information this individual provided, McNeary began an investigation that eventually led to the grand jury indictments of Jenigen and Woods.

Though Jenigen did not tell any of his sexual partners about his health status, Kuck said he will argue either that someone else told them, they heard rumors, or that they could infer that his client might be HIV-positive because HIV/AIDS rates generally are higher among gay men.

"My client maintains his innocence, and I'm going to do what I can to defend the guy," Kuck said. "But being that this is a conservative part of the country, people won't have any sympathy for him."

South Dakota has about 750,000 residents, based on U.S. Census estimates for 2000. The city of Aberdeen, which has less than 40,000 residents, is in Brown County, which sits in the northeast section of the state.

Although South Dakota residents generally tend to vote Republican, Aberdeen is the home of U.S. Sen. Tom Daschle, a Democrat and the Senate majority leader.

State health officials have said that none of the 31 area residents tested for HIV as a result of the Jenigen and Woods cases have been determined to be infected, the Aberdeen News reported. They will be retested for the next six months, however, because the virus can have a long incubation period.

The South Dakota law about this issue states, however, that actual transmission of HIV is not required for criminal exposure.

LOCAL HIV EXPOSURE LAWS

District of Columbia: No specific law makes it illegal to intentionally transmit HIV

Virginia: Intentionally transmitting HIV is Class 6 felony, punishable by imprisonment of between one and five years, fine of no more than $2,500

Maryland: Intentionally transmitting HIV is a misdemeanor, punishable by imprisonment of up to three years and a fine of no more than $2,500

Multiple arrests draw ACLU concern

In an unrelated case in April, law enforcement officials in South Dakota charged an HIV-positive college student in Huron with exposing others to the virus. The student, Nikko Biteramos, is 18.

More than 200 people, most of whom had sex with Biteramos's alleged sexual partners, have been tested for HIV in the Huron area as a result of the case. Three of the people there have tested HIV-positive, the Associated Press reported.

Biteramos' trial is scheduled to take place this summer.

"Nobody in any of this thinks it is a good thing to be HIV-positive, have sex with your partner, and not tell them before it happens," said Jennifer Ring, executive director of the ACLU of the Dakotas. "However, I think a lot of these things need to be dealt with as public health issues and not as legal issues."

Ring said she worries that laws criminalizing HIV transmission might make a person reluctant to work with public health officials to help track down other partners with whom he or she was sexually active.

Ring and Matt Coles, director of the national ACLU AIDS Project in New York, issued a written statement earlier this month in which they urged South Dakota officials and the public to proceed "with concern, calm and caution."

"Intentionally spreading HIV by having unprotected sex without disclosing HIV status is reprehensible," they said. "But the situation in South Dakota needs to be approached calmly and intelligently.

"In this country, we investigate the facts and hold fair trials before deciding people are guilty," they said. "We have far too many recent examples of cases where our system has rushed to judgment and been wrong."

News reporter Rhonda Smith can be reached at rsmith@washblade.com.
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