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Houston Man Charged in Sexual Assaulting Boy With a Deadly Weapon - HIV

by Kilian Melloy
Tuesday Mar 23, 2010

A Houston man was charged with aggravated sexual assault with a deadly weapon in a case in which the accused allegedly had sex with a 15-year-old boy. The deadly weapon? HIV.

Kevin Lee Sellars saw charges of sexual assault of a child upgraded to aggravated sexual assault after prosecutors decided to use his HIV status as a justification for the "deadly weapon" charge, a March 22 article in The Houston Chronicle said.

Sellars claims that he did not have sex with the teen, and also says that he only found out about his status after spending a weekend with the boy. According to the accused, once he found out from a previous sexual partner that he may have been exposed to HIV, he canceled plans he and the boy had made for the future, and the boy responded by making allegations of sexual contact.

"The penal code says [a 'deadly weapon'] can be anything that is capable, in its manner and use, of causing death or serious bodily injury," Harris County District Attorney's Office appellate lawyer Jessica McDonald told the media, adding, "I just don't think that's a high hurdle--to say that having unprotected sex, transmitting those kinds of fluids, knowing you're HIV positive, is capable of causing this child serious bodily injury or death."

The maneuver of using an alleged perpetrator's HIV status to enhance criminal charges by characterizing the disease as a "deadly weapon" has been used before, though this is the first time such a charge has been made in Harris County.

Sellars told the press that another Texas case--this one in Austin in the early 1990s---involving a HIV-positive suspect led to a conviction that was upheld in a 1997 appeal. In another case, Phillipe Padieu was charged last year in McKenney, Texas on six counts of aggravated sexual assault with a deadly weapon after having sex with half a dozen women; Padieu was found guilty and sentenced to a cumulative total of 250 years. And in Gatesville, David Castillo, the DA for Coryell County, says that he will try a suspect believed to be HIV positive on similar charges after the suspect allegedly sexually assaulted a 16-year-old boy. "You can fire a gun at someone and miss, and it's still aggravated assault with a deadly weapon," Castillo told the press, explaining that he would issue the charges even if the alleged victim tested HIV negative.

But advocates for people living with HIV disagree about the application of the law in these cases. "HIV should not be an aggravating factor unless there's some evidence that he intended to do some harm and did some harm," said the executive director of the Center for HIV Law and Policy, Catherine Hanssens, the article reported. "Criminal law in every state is adequate to deal with it," added Hanssens, who said that she knew of cases in which such charges were leveled at HIV-positive people for spitting at others or for biting. "But to treat it as evidence of guilt and a deadly weapon wasn't appropriate in 1985, and it isn't appropriate now. To refer to HIV as a deadly weapon in 2010 speaks of just unforgivable ignorance."

Worldwide, the question of whether sexually active people with HIV should be face criminal charges if they knowingly expose others to the disease has been thorny. In Uganda, a proposed bill to punish gays with the death penalty in some cases would stipulate capital punishment for HIV-positive men who have sex with other men. In New Zealand, an Auckland man was charged with having sex with a number of partners after being diagnosed as HIV-positive; half of his sexual partners reportedly tested positive after their encounters. The suspect killed himself in his jail cell last May.

That case was similar to that of a 49-year-old Australian man, Michael John Neal, who was convicted in 2008 of deliberately trying to transmit HIV to others. Evidence presented to the court over the course of Neal's trial included the claim that the accused had convened sex parties where the intent was to infect HIV-negative people. The court was also told that as part of the attempt to spread the virus, Neal sported a piercing on his genitalia.

In 2008, a Dutch court convicted two men, identified only as Peter M. and Hans J., of attempting to spread HIV by injecting their victims with tainted blood at sex parties. The men reportedly drugged their victims before injecting them with infected blood, although the court found that that allegation could not be proven. All fourteen victims tested positive for HIV, but the court also noted that it could not be conclusively proven that their infections stemmed from the injections. Nonetheless, Peter M.--who also was convicted on a rape charge--was sentenced to nine years, and Hans J. to five years.

In the United States, a 22-year-old drifter was among the first to be tried and sentenced for spreading HIV. The young man, Nushawn J. Williams, received a sentence in 1999 of 4 to 12 years after investigators learned that he had bartered sex for drugs, offering partners crack, despite knowing that he was HIV positive, the New York Times reported in an April 6, 1999 article. During a year spent in Jamestown, NY, Williams reportedly had sex with 48 young women, 13 of whom later tested positive for HIV. Authorities also learned that Williams had had sex with up to 75 more people in New York City.

In Canada, a thief menaced police with a hypodermic needle he claimed contained HIV, a May 13, 2009 article in the Canadian newspaper the The Edmonton Sun reported. Similarly, an American suspect reportedly robbed several establishments earlier this year, armed with a hypodermic needle that he claimed contained HIV.

But in at least one instance, a gay man who was attacked and beaten on a Chicago train was able to fend off his assailants by claiming to be HIV positive. Earlier this year, Daniel Hauff intervened when three men began to harass a young gay passenger. The three then began to hurl anti-gay epithets at Hauff and to beat him. Hauff managed to repel the attackers by telling them that he was HIV positive and smearing his own blood on them. Hauff is, in actuality, HIV-negative.

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor. He also reviews theater for WBUR. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.


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