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New York appeals court urged to reject felony charge based on HIV status

NEW YORK -- Lambda Legal has filed a friend-of-the-court brief in the New York Court of Appeals urging the court to drop the aggravated assault charge leveled at a criminal defendant based on his HIV status.

"The last time I checked, being HIV-positive is not a crime," said Scott Schoettes, HIV Project director at Lambda Legal. "And a person should not face criminal punishment -- or, as in this case, significantly enhanced penalties -- simply because he or she happens to be living with HIV."

In September 2006, David Plunkett was arrested following an altercation with police during which he allegedly bit one of the police officers. Because he subsequently revealed to the officers that he has HIV, Plunkett was charged with aggravated assault upon a police officer, a felony premised on use of a "dangerous instrument."

"There was no possibility of transmission here. The real 'dangerous instrument' appears to be in the hands of the prosecutors, who are twisting this law to trump up the charges against a man who is living with HIV," Schoettes said.

"The notion that saliva can transmit HIV is contrary to the scientific evidence. As an association representing HIV care providers and scientists, a key tenant of our work is to advance accurate and evidenced-based policies, including on how HIV is transmitted. Prosecutions like this one fuel HIV-related stigma and discrimination and set back HIV prevention efforts," said Andrea L. Weddle, HIV Medicine Association executive director.

"It's really disheartening that after three decades there is still confusion in the legal system about the ways by which HIV can be transmitted and the ways by which it cannot. HIV criminalization laws and prosecutions built on these misconceptions stoke unfounded fears and can lead to discrimination against people living with HIV," said Bruce J. Packett II, deputy executive director at the American Academy of HIV Medicine. "When thinking about HIV risk, exposure and prevention, the Academy supports juridical and public policy built around sound, evidence-based science and measured, common-sense approaches to law enforcement."

Lambda Legal filed an amicus brief in the matter, urging the Court of Appeals to drop the aggravated assault charge. The brief explains that the realities of HIV transmission risk do not support prosecuting Plunkett under a law addressing the use of a dangerous instrument and that this charge leads to public misunderstanding of how HIV is transmitted, contributes to stigmatizing people with HIV and undermines important public health goals.

The case is People of the State of New York v. Plunkett. Click HERE to read the amicus brief.

Click HERE for information about the case.

Scott Schoettes, HIV Project director, is handling this matter for Lambda Legal. The amicus brief was filed on behalf of American Academy of HIV Medicine, Association of Nurses in AIDS Care, Center for HIV Law and Policy and HIV Medicine Association.