Ellis Wilson Jr. had been drinking when deputies found him in a field next to his Jasper Avenue apartment in the early morning hours of July 13. Deputies said he sat in the driver’s seat of his pickup truck, the rear wheels spinning, digging deeper into the grass.
The East Baton Rouge Parish sheriff’s deputies took Wilson into custody for driving while intoxicated. But his arrest made an unexpected turn, according to a probable cause affidavit. Before deputies drove Wilson to jail, he told them he had HIV. Then he allegedly spat on another arrested person in the patrol car.
Suddenly, Wilson faced potentially more serious legal consequences. Not only was he booked into Parish Prison for driving drunk, but deputies also accused him of a lesser-known, felony charge: “intentional exposure to AIDS virus.”
Health experts agree that spitting on someone cannot transmit HIV, the virus that eventually can cause AIDS. The Centers for Disease Control and Prevention notes on its website: “HIV cannot be spread through saliva, and there is no documented case of transmission from an HIV-infected person spitting on another person.”
Even deep, open-mouth kissing can’t transmit it unless the people involved have sores or cuts inside their mouths and there is an exchange of blood, the CDC says.
Baton Rouge doctor Waref Azmeh, who has been treating patients with HIV since 1988, put it bluntly: “There is really no risk. It’s zero percent.”
But Wilson’s case is one of at least seven arrests across the last nine years in East Baton Rouge Parish in which law enforcement officers have accused a suspect of trying to spread the virus through spitting — most often with a police officer as the target.
The state law passed in 1987 prohibits “intentionally exposing another” to AIDS through sexual contact without consent, but also delineates other prohibited interaction: spitting, biting, “stabbing with an AIDS-contaminated object” or “throwing of blood or other bodily substances.” The maximum sentence is 10 years in prison and a $5,000 fine. If the crime is against a law enforcement officer, an extra year in prison and $1,000 potentially could be tacked on.
Marjorie Esman, the executive director of the ACLU in Louisiana, called the arrests “outrageous.”
“What you’re doing is making an HIV status a crime, for reasons that have nothing to do with medical reality,” Esman said.
None of the reviewed cases led to convictions. Only two of the cases even led to a defendant being charged by prosecutors, and those charges were dismissed as the cases progressed.
But the accusation by law enforcement can ratchet up the bond amounts for defendants. In two recent cases, defendants found their bail quadrupled by the addition of the felony count, with one defendant waiting months in jail because he couldn’t come up with the money to get out.
Ellis Wilson Jr. said his arrest, which was written about in a brief in The Advocate, was humiliating; he still gets looks from people who recognize him from the paper.
Wilson said he only brought up his HIV status in case he got into a scuffle with the deputies, as a nurse once told him that he had to disclose it or he could risk further trouble.
“Now they’re going to try to say they’re not going to charge me — (but) it’s too late,” Wilson said. “Everybody knows me.”
These arrests took place in a metro area struggling with HIV and AIDS. Baton Rouge ranked first in the country for the rate of new AIDS cases per capita, according to a 2011 report by the Centers for Disease Control and Prevention.
While law enforcement has made use of the “intentional exposure” law, a prosecutor with the East Baton Rouge Parish District Attorney’s Office said it would never actually charge somebody with the crime if the only action was spitting.
“We have a law, but we could never in our opinion have the evidence to prove” an attempt to expose someone to the virus by spitting, Assistant District Attorney Mark Dumaine said.
Under District Attorney Hillar Moore III, prosecutors did charge one person, Joseph King, after he spat bloody saliva at a deputy while in Parish Prison in 2013. The charge was later dismissed. One other defendant was charged under the previous district attorney.
Asked if police should have booked people for the crime if prosecutors never intend to follow through, Dumaine said, “I don’t expect police officers to be law professors.”
Baton Rouge Police spokesman Cpl. Don Coppola defended his agency’s use of the law, although the Police Department had only made two of the seven arrests — one in 2006 and another in 2007 — examined by The Advocate. He said that officers needed to take precautions to protect themselves, and that it is their job to enforce the law as written.
“We will continue to enforce [the law] to the fullest, unless the law is amended,” Coppola said.
Sheriff’s deputies also have applied the law as it was written, but after reviewing recent cases the Sheriff’s Office will now look to charge suspects with simple battery — a misdemeanor — instead of intentional exposure if similar situations come up in the future, said Casey Rayborn Hicks, a Sheriff’s Office spokeswoman.
“We are currently reviewing our training procedures to take steps to educate and train our deputies to apply the most appropriate charges based on the circumstances,” Hicks said.
In one case from last year, Melvin Brumfield, 38, appeared drunk when he approached deputies who were questioning a relative, cursed at them and demanded that they leave his relative alone, according to the affidavit of probable cause.
But while deputies drove him away from the scene on Jan. 11, 2013, Brumfield spat twice through the police unit’s grate bars and his spit “hit the right corner eye socket of the [deputy] both times,” according to the affidavit. Brumfield then told a deputy, “die … nice and slow, I have that gangster,” which the deputy took to be slang for being HIV-positive, the affidavit states.
Brumfield said in an interview that he doesn’t remember saying anything like that, much less spitting and implying he had the virus, which he insisted he doens’t have. But deputies booked him on a count of intentional exposure, as well as counts of resisting an officer, disturbing the peace while intoxicated and interfering with a law enforcement investigation. All of the other counts were misdemeanors, but the intentional exposure count is reflected in Brumfield’s $6,500 bail amount, with $5,000 stemming from the addition of that felony crime.
If the HIV-related accusation hadn’t been added, Brumfield said he could have posted bond. But instead he sat in jail for months unable to afford the total sum and wondered what was happening with his case.
In late March 2013, more than two months after his initial arrest, Brumfield filed a court motion on his own behalf — he says he did not have access to a lawyer — in which he asked for a release without bail and wrote that he had taken two HIV tests, both of which came back negative. “I have never told him at all that I have (a) virus I will not put his life (or) his family life in danger with such virus, neither my wife and kids which I love so much,” Brumfield wrote.
On April 29 — more than three months after his initial arrest — his motion was granted, and Brumfield was released that day. He was never charged with any of the crimes he was arrested for, court records show.
Since his release, Brumfield hasn’t thought about the time he spent there.
“I don’t want to think about the past,” he said. “The more you think about the past, it makes you angry.”
Spitting is only one of the ways that people still think the virus can spread, and misconceptions remain pervasive, said the Rev. A.J. Johnson, founder of the Baton Rouge AIDS Society. He has counseled family members of HIV patients who thought that sitting next to infected people or using their silverware might transmit the virus eventually.
“Leaving (that law) on the books is more about stigma and fear than it is about knowledge and facts,” Johnson said.
HIV is typically spread through unprotected sex and the sharing of needles with an infected person.
Louisiana is not the only state with spitting-related arrests involving HIV-positive defendants.
Five states criminalize exposing an officer to bodily fluids while HIV positive — Georgia, Indiana, Nebraska, Utah and Louisiana, according to LawAtlas. Lamda Legal, a legal advocacy group, estimates at least 35 states have laws on the books that make it a crime to spread the HIV virus in some way.
Some of those laws have recently lead to prosecutions. In Texas in 2008, a homeless man with HIV who spat on an officer was sentenced to 35 years in jail for harassing a public servant with a deadly weapon, the weapon being his own saliva. He was sentenced under a habitual-offender law, which extended his time in prison significantly. A 2003 study found 24 prosecutions across the country for spitting on another person while positive for the virus.
Wilson now faces only a driving while intoxicated charge, as the DA’s Office never brought the intentional exposure charge against him.
He remains baffled about how his arrest unfolded the way it did. He remembers drinking three 24-ounce beers that night. But he says he was outside his truck when four deputies approached him. He also maintains he did not spit on anyone and did not resist arrest in any way. He remembers lying down in the police car — and certainly doesn’t remember anyone else in the car whom he could have spat on.
But he said the arrest was not nearly as painful as finding out in the newspaper the next day that he was accused of trying to spread the HIV virus.
“That was cold-blooded,” he said of the accusations and the paper’s publication of them. “That was low-down.”
Follow Daniel Bethencourt on Twitter: @_dbethencourt.