Wall Street Journal - November 3, 1997
Brian A. Brown, Deputy editorial page editor of The Wall Street Journal Europe.

State health officials are now scrambling to find out how many people have been infected by Mr. Williams, who reportedly traded drugs for sex. He is believed to have had sexual contact with 28 young women, the youngest a 13-year-old girl, infecting at least 10. Mr. Williams himself claims to have slept with 50 to 75 women since finding out in September of last year that he was infected. The final impact, as anyone who remembers his high school biology knows, could be geometric.

What can the law do about the Nushawns of the world? Many American states and foreign countries are confronting the question as similar heterosexual and homosexual cases crop up and prosecutors struggle to apply legal codes written before AIDS existed. The result is some legal and moral confusion.

James Subjack isn't confused. The Chautauqua County District Attorney says he would "love to charge [Mr. Williams] with attempted murder." But he won't. He knows that it's difficult to get attempted murder to stick in such cases. The DA would have to prove that Mr. Williams intended to kill.

That's exactly what prosecutors in a recent Maryland case failed to do. Dwight Ralph Smallwood, who knew he had HIV when he raped three women, had his conviction for attempted murder overturned because the court ruled that prosecutors did not prove that he had intended to kill the women. In reversing the decision, Chief Judge Robert Murphy ruled that there was no proof that Mr. Smallwood's single sexual exposure would necessarily result in death. It was only a "possible" outcome.

The difficulty of proving attempted murder relates in part to the relatively minimal possibility of contracting HIV from a single instance of heterosexual sex. Scott Holmberg, a medical epidemiologist with the Centers for Disease Control and Prevention, says that "the chances are around one, two or three in 1,000," but some individuals are more susceptible than others.

In Chautauqua, state health officials have noted the unusually high infection rate for this type of heterosexual contact. This may be related to the fact that some victims apparently were also infected with venereal diseases, which can facilitate the spread of HIV.

More than 10 attempted murder convictions have been upheld on appeal nationwide, but they usually involved biting, spitting or when the perpetrator told his victims he was going to kill or infect them. In one case in Texas, a convict with HIV was given a 99-year sentence for attempted murder for spitting at a prison guard. Two appeals failed. In Oregon, a man with HIV was convicted for infecting several women after lying to them about being healthy.

But Mr. Subjack doesn't want to take any chances. The Chautauqua County district attorney will charge Mr. Williams with assault in the first degree, punishable by up to 25 years, and reckless endangerment, punishable by up to seven years. But even here, he knows he's on shaky ground. He'll need to show a "present physical injury." If the victims are merely carrying the virus, not having developed full-blown AIDS, proving that will still be difficult, he says.

Our common law friends across the Atlantic offer little guidance on such cases. In early 1994, during a visit to Cyprus Briton Jannette Pink was infected by Pavlos Georgiou. Mr. Georgiou didn't inform her that he had HIV. He had already infected his wife and another Cypriot woman, the London Times reports, and both were dead by the time he went to trial. Mr. Georgiou was sentenced to 15 months in prison under an obscure 1957 law introduced by the British intended to stop the spread of typhoid and venereal disease.

To address the lack of clarity in the law, about half the U.S. states have passed -- and Britain is considering passing -- laws sanctioning HIV-positive individuals who don't inform their partners. Louisiana, which has one of the strongest sanctions, punishes such acts with up to 10 years in prison. New York has no such law.

But these laws aren't used much, says Georgetown law Prof. Lawrence Gostin, a specialist in AIDS litigation. "Sex crimes of a consensual nature are rarely prosecuted," he says. Moreover, according to Mr. Gostin, "public health officials don't like {the laws}" and rarely report violations to prosecutors.

So what should be done with infected individuals who repeatedly give others the equivalent of a death sentence?

Nothing, says Lambda Defense and Education Fund, a gay rights group in New York City. "Do I think {Mr. Williams} should be prosecuted only because he knew he had HIV?" asks a director Catherine Hanssens. "No. " Ms. Hanssens asserts that the problem is society's "reluctance to talk about sex frankly." She is apparently unaware that Chautauqua County's sex education programs, which teach even seven-year-olds about how AIDS is transmitted, have won national awards.

Manhattan's Gay Men's Health Crisis, the nation's oldest and largest AIDS organization, takes a more reasonable line. "Based on the information available," says GHMC's Bob Jaffa, "[Mr. Williams] deserves to be prosecuted." And the current laws of New York are adequate to do so, he says.

But are they? Is justice fully served by an assault charge alone, even though the perpetrator may be responsible for the eventual deaths of dozens -- if not more -- women and men?

Harsher measures could well drive those with HIV underground, some analysts warn, possibly exacerbating the epidemic. But this ignores the government's obligation to punish criminal behavior.

Nor can government shy away from its responsibility to protect citizens from disease. Few approach AIDS the way they approach other public health threats; instead, they often put the privacy rights of the infected individual above the rights of the partners he might infect. Indeed, one of the saddest elements of the Nushawn Williams story is that the Chautauqua County health officials knew for a long time that there was a problem. Yet concern about privacy laws kept them from acting. Something's askew when the ultimate price of a drug dealer's privacy is a full morgue.

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