Texas jury concludes saliva of HIV-positive man a ‘deadly weapon’, sentenced to 35 yrs jail

Edwin J. Bernard
Published: 16 May 2008
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Details of the case

Details gleaned from reports in The New York Times and The Dallas Morning News suggest that Willie Campbell is an African-American homeless man with a history of prior arrests, including two previous spitting offences and two previous biting offences, which took place either during arrests or in prison.

In May 2006, Mr Campbell resisted arrest for public intoxication and spat at a policeman while telling him he was HIV-positive. Although Mr Campbell denied that he had resisted arrest or spit at an officer, the jury found him guilty of “harassment of a public servant”.

Mr Campell’s lawyer, Russell Henrichs, told The New York Times that his client “had been indicted under a habitual-offender statute that increased the penalty in his case to a minimum of 25 years in prison, because he had been convicted of attacking two other officers in a similar manner and biting two inmates, as well as more than two dozen other offences.”

He also said that Mr Campbell has waived his right to appeal.

It appears that it was the jury, rather than the judge, who decided that Mr Campbell's saliva was a deadly weapon. Nevertheless, there are legal precedents to this case.

Spitting as a US ‘crime’

In a 2007 decision by the Ninth US Circuit Court of Appeal, intentionally spitting on someone is "an offensive touching that rises to the level of simple assault,” that can be punished by up to six months in prison. However, in this case, where the defendant was HIV-negative, he was sentenced to two years of probation, and 50 hours of community service.

However, at least nine HIV-positive individuals in the US have previously been sentenced to much longer prison terms for spitting. A 2003 analysis from the Yale University Center for Interdisciplinary Research on AIDS “found 24 instances of prosecutions for spitting...[and] convictions for HIV exposure in eight cases, in which there were two convictions for attempted murder, two for criminal exposure to HIV, one for assault with a deadly weapon, two for assault, and one for battery by body waste. The sentences imposed ranged from 90 days in jail to 25 years incarceration to life imprisonment.”

HIV-positive spit: a “deadly weapon”

One of those cases involved Jimmy Bird, an HIV-positive man who was sentenced to three-to-15 years in prison by an Ohio court in 1998 for assault with a "deadly weapon" for allegedly spitting at a police officer during an arrest for disorderly conduct.

Bebe Anderson, New York-based Lamba Legal’s HIV Project Director told aidsmap that during Mr Bird’s appeal, “we filed an amicus (friend-of-the-court) brief, explaining to the Ohio Supreme Court that all medical and scientific evidence bearing on the issue demonstrated that saliva does not transmit HIV. We argued to that court that Mr. Bird's saliva was incapable of inflicting death and therefore his conviction for felonious assault should have been reversed.”

“We also explained to the court that the use of the criminal justice system to bring very serious charges against people with HIV or AIDS for committing acts that cannot possibly endanger society undermines proven public health policies that combat HIV infection and AIDS,” she added.

“Such criminal prosecutions confuse the public about ways in which HIV can be transmitted, and encourage discrimination and violence against those who have been infected with the virus,” she said. “They also undermine the credibility and effectiveness of the criminal justice system as a central vehicle for encouraging respect for society's laws and protecting members of the public from preventable harm.

“Unfortunately,” she said, “our arguments were not successful.”

The longest sentence for spitting was handed down to Curtis Weeks in 1989. Weeks was convicted of attempted murder for spitting on a prison guard. After finding that Weeks had two prior felony convictions, the jury sentenced him to life imprisonment. During Weeks’ trial – also in Texas – the prosecution produced four “expert” witnesses who testified that HIV could be transmitted via spitting, whereas the defence only produced one expert to testify that it could not.

In 1995, the US Court of Appeal upheld the original verdict, writing in the conclusion to their decision that, “[a]lthough Weeks's [sic] counsel made a mighty effort to discredit the State's experts, the jury still chose to believe their testimony. We are not in a position to disturb its conclusions.”

The most recent case prior to that of Mr Campbell took place in 2005, when Antoine Odom was sentenced to 15 to 45 years for “spitting and punching at corrections officers in a Michigan prison”. His 2007 Michigan Supreme Court appeal was denied partially because Mr Odom’s saliva contained blood, as a result of being punched in the mouth by one of the prison guards. “We take judicial notice of the fact that blood is commonly known to be a means of spreading HIV. We therefore conclude that HIV infected blood is a “harmful biological substance.” This meant, they said, that the charges of attempted murder were legally valid.

Spitting and HIV transmission

The appeals court quoted from the US Centres for Disease Control’s website: “HIV transmission can occur when blood . . . from an infected person enters the body of an uninfected person.”

What seems clear to anyone who knows about HIV transmission, is that their interpretation of the CDC’s statement was taken out of context.

Although the CDC does not specifically address spitting in their document on how HIV is transmitted, a 1997 report in their newsletter, MMRW Weekly, has examined the risk of HIV transmission via saliva.

“Exposure to saliva uncontaminated with blood is considered to be a rare mode of HIV transmission for at least five reasons:

  • saliva inhibits HIV-1 infectivity;
  • HIV is infrequently isolated from saliva;
  • none of the approximately 500,000 cases of AIDS reported to CDC have been attributed to exposure to saliva;
  • levels of HIV are low in the saliva of HIV-infected persons, even in the presence of periodontal disease;
  • and transmission of HIV in association with kissing has not been documented in studies of nonsexual household contacts of HIV-infected persons.

“However,” it goes on to say that, “rare bite-related instances of HIV transmission from exposure to saliva contaminated with HIV-infected blood have been reported.”

If HIV cannot be transmitted by spitting, why, then are people in the US still being sent to prison for it?

“That is a good question,” says Lambda Legal’s Anderson. “Unfortunately, the level of ignorance and misinformation how HIV is and is not transmitted remains very high. Misconceptions about the ways in which HIV can be transmitted to another person are harmful for society at large, in part because they result in unfounded fears. Those misconceptions are especially harmful for people living with HIV, who continue to face stigma and discrimination, often based on those types of misconceptions.”

Criminal justice system ignorance global

Although the US appears to be the only country that sends HIV-positive individuals to prison for spitting, police and judicial ignorance about how HIV is transmitted remains a global issue.

In January, a man from Brisbane, Australia was imprisoned for twelve months for biting a policeman, although the bite had not broken the skin. The judge told him that the sentence was a "genuine deterrent" to prevent others from spitting or biting police because he believed "there are now diseases in the community which are spread like this."

And last month, a Zimbabwean refugee with “suspected” HIV was jailed for two months in Northumbria for allegedly biting a policeman following his arrest for drunk driving. Following his sentencing, Chief Inspector Jim McAll, of Northumbria Police told The Sun: “For an assault of this nature, which has left two officers with an uncertain few months, a custodial sentence was totally appropriate.”

NAM’s book, Criminal HIV Transmission, aimed at educating the criminal justice system, and those who work with it, about the issues as they relate to criminal HIV exposure or transmission is available from NAM’s

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