Fear of aids

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Fear of aids

Postby Van Canna » Sun Feb 18, 2001 12:44 am

There are cases of intentional or negligent transmission of blood or bodily fluids.

Say this happens during a street fight.


Question: Does the "victim" have any criminal or civil cause of action for "fear of aids"?

Alan: any case law in Mass on the subject matter?

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[This message has been edited by Van Canna (edited February 17, 2001).]
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Postby student » Sun Feb 18, 2001 3:48 am

This is totally off the top of my head, without any research: Caveat Emptor!

I assume that if your "victim" either is the assailant or a combatant in a mutual affray, he has assumed the risk of all things likely to happen in a fight, including the transmission of diseases from blood-borne pathenogens.

But if he's the aggressor, the assailant - I tend to think there still is no cause of action for the fear of AIDS, but I do not know.

However, throw in an extra factor: blood is transmitted, and the assailant shouts with an evil laugh "Die, sucker: I'm HIV positive!!!" - then I think you have intentional infliction of emotional distress, regardless of the truth of falsity of the HIV-positive claim.

Repeat, this is off the top....

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Postby gmattson » Sun Feb 18, 2001 4:04 pm

Alan does all his internet writing during the week, in the office! So we will have to wait until tomorrow for Al's answers.

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Postby Panther » Mon Feb 19, 2001 6:59 pm

There are known cases where someone who was in an altercation that resulted in, ummmmm, "blood everywhere" spent considerable time and anquish over this thought. Especially with the given that the perps limped away before authorities arrived and weren't able to be arrested and tested. After ~3 years of quarterly testing, the doctors generally tell people who aren't doing any other "at risk activities" and have been consistently HIV- to forget about it and go on with their lives.

Just another mind-f' to add to the long list of things that someone has to contend with after going through a nasty altercation... (and this also has the heinous side-effect of stopping the person recovering from being intimately close with their partner for years in fear of potentially spreading a deadly disease to the loved one that they were protecting. Image )
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Postby student » Mon Feb 19, 2001 7:41 pm

So if there is any claim for relief here, there may also be a loss of consortium claim?

Hmmmmmm.

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Postby Gene DeMambro » Tue Feb 20, 2001 8:50 am

There was a recent case in the papers here in Massachusetts where one or more police officers came in contact with a suspect's blood. The police officers sued in order to disclose the suspect's HIV status. The police initially won. However, upon appeal the suspect won, citing privacy rights and civil rights. This ruling on appeal, as far as I know, is consistant with previous case law on the subject.

So, if the question is whether you have a right to know if an assailant is HIV positive, I don't think you do.

As for the loss of consortiom, I have a question. Can it be successfully argued that practicing safe-sex and using prophylaxis drug regimens allow for consorting with a lover, so the loss of consortium argument might fail? I don't have an opinion, I'm just pondering...

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Postby Panther » Tue Feb 20, 2001 4:24 pm

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Gene DeMambro:
There was a recent case in the papers here in Massachusetts where one or more police officers came in contact with a suspect's blood. The police officers sued in order to disclose the suspect's HIV status. The police initially won. However, upon appeal the suspect won, citing privacy rights and civil rights. This ruling on appeal, as far as I know, is consistant with previous case law on the subject.

So, if the question is whether you have a right to know if an assailant is HIV positive, I don't think you do.<HR></BLOCKQUOTE>

Ding, ding, ding! DeMambro-san wins the prize. That's been the case law for awhile. While I'm a huge advocate of privacy issues, there are times when I really hate the consequences... this being one of them.

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
As for the loss of consortiom, I have a question. Can it be successfully argued that practicing safe-sex and using prophylaxis drug regimens allow for consorting with a lover, so the loss of consortium argument might fail? I don't have an opinion, I'm just pondering...


Even those who work in the field have quit calling it "safe-sex". The term that is now generally used is "safer sex", because using a condom is no guarantee. In fact, many researchers believe that using a condom barely helps at all based on some data that shows that condoms have micro-holes in them... holes which are small enough to prevent pregnancy, but large enough to allow the passage of the extremely small HIV virus. Recent news on the drug fronts is showing an increase in HIV infections and AIDS. The literature suggests that there are two basic reasons for this: 1) the virus is becoming more and more drug resistant, 2) after the announcement a number of years ago about the break-throughs with the drug cocktails, many "at risk" communities felt as if there was a virtual "cure" for the virus... and unfortunately returned to the most "at risk" behavior/life-style choices which had been refrained from (resulting in the increase in the incidence of the disease to even greater than previous levels). Image

Which means, even more than ever, that we need to use VSD rather than our fists... because the life you save may very well be your own.




[This message has been edited by Panther (edited February 20, 2001).]
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Postby Panther » Tue Feb 20, 2001 6:33 pm

GEM-sensei,

There are reasons why the laws for HIV infection protect the person's privacy. The initial reasoning was understandable to a large degree (to prevent discrimination). Fundamentally, I agree with those reasons and feel strongly that an individual's health status/records should be private and are no one else's business. However, there are times when a person's health status becomes an important issue to others who are in contact with that person. Even in those instances, I don't condone the general release of information about someone's health, but in some rare cases, the need to know about the specific possiblity of transmission of certain diseases ceases to be a privacy matter and becomes a matter of infringing on other's Rights to their healthy life and freedom to make their own informed decision regarding those health matters that may dirrectly effect them. As UN-PC as this will be taken, the fact is that protection of an individual's HIV status has ultimately caused too much unnecessary anguish, anxiety and spread of the disease. It is in no small way, directly related to the very powerful and politically correct homosexual lobby. Regardless of the overall reasons for the privacy, there are instances, IMNSHO, when an individual's HIV (or other communicable disease) status should be available to a select group of individuals.

(Before anyone goes there, I have homosexual friends of both sexes and can understand the original intent of the laws. But even they have admitted, in long debates about this very topic, that HIV status is a "protected class" with special and extraordinary priviledges reserved unto itself. Nearly all have felt that there are certain instances where a person's HIV status should be made available, at least on a limited basis... and ALL of them acknowledge the difficulty of trying to protect the Rights of both parties in these instances. Unfortunately, nearly all of them rather enjoy the special status that they are gaining... they feel it's compensation for the years, and in many cases on-going, mistreatment by society. And I can understand that as well... Image )

Case in point: If you have Typhoid, your status as a typhoid carrier can be made known to potential employers and you can be (and most states do) barred from employment in any of the food services industries. Other easily communicable diseases fall under the same guidelines... for example, in many States it is unlawful for someone with a cold or the flu to appear at work for a food preparation job, however HIV status is protected, so if that cook cuts his hand while preparing your food, you'll never know if (s)he is HIV+, but you can rest easy knowing that no one is legally supposed to be working at food preparation who has a cold. Image (And I've heard all the arguments about how "fragile" HIV is and how "hard" it is to transmit in certain environments... Regardless, it'd be nice to be able to make my health decisions myself, rather than have them made by some politically correct politician that sympathizes with a certain powerful, well-connected and politically correct lobby.)

(well, sorry... I'm guessing this post will get some interesting reactions.)
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Postby gmattson » Tue Feb 20, 2001 6:42 pm

Your post makes a lot of sense to me Panther!

When you gonna run for congress?

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Postby Panther » Tue Feb 20, 2001 7:36 pm

Ummmm, Thanks... i think...

They'd eat me alive! Image

I figure every person I ever had a cross word with would come out of the woodwork like termites and there's bound to be some dirt around that I've long since put behind me. I've tried to be a good person all my life, but I'm not a saint or even a "model citizen" by the standards of the media. Image
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Postby gmattson » Wed Feb 21, 2001 5:16 am

I don't quite understand why HIV or AIDS can not be considered a weapon, especially in a situation where the BG uses it as a weapon.

I was watching an episode of Law and Order last night. The BG was robbing cabbies by placing a hypodermic needle filled with his blood, to the throat of the cabbie. Then he told the cabbie that the blood was AIDS infected. "Give me your money or I'll inject you with the bad blood".

In the movie, the cabbie (who was an undercover cop) gets injected. Later, after capturing the BG, the law could not test him!!!! The cop/cabbie was told it would take six months to find out if he was infected.

In this situation (intentional infection), why does the law protect the BG? Certainly such a law should be changed to protect/inform the victim.

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Postby Alan K » Wed Feb 21, 2001 4:50 pm

Well this is certainly an interesting subject starting out with a street fight and creat discourses on other issues.

In the case of two persons fighting it has long been the law in Massachusetts that consent by each party to the fight is NO defense to issuance of twin complaints for assault and battery. The law looks upon this with disfavor. Com. v. Collberg 119. Mass. 350 (1876).

I did a fast check and could find no statutory law on transmission of bodily fluids as a separate crime.

I would think that a good case could be made for A & B with a dangerous weapon, to wit:
HIV infected blood if that were the case.

Would one participant to the fight, if infected, have to warn the other, "before we engage in fisticuffs, I must warn you that I am HIV positive"?

I think that if there were a transmission of body fluids in the post made by Van, sensei, this might be a case of voluntary assumption of risk in civil law, and require a specific intent under criminal law.

If we apply the law of aggravated assault, which would include that be means of a dangerous weapon, and would include menacing gestures such as waiving a weapon.

The law looks to the overt act and not the state of mind of the victim.

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Postby Panther » Wed Feb 21, 2001 7:55 pm

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Alan K:

I did a fast check and could find no statutory law on transmission of bodily fluids as a separate crime.<HR></BLOCKQUOTE>

That's because there isn't one... not even in rape cases.

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>I would think that a good case could be made for A & B with a dangerous weapon, to wit:
HIV infected blood if that were the case.<HR></BLOCKQUOTE>

Sorry councellor... That would be fine if the HIV status of the individuals could be found out. However, Federal law prevents that information from being given out. No weapon, no case... Image

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Would one participant to the fight, if infected, have to warn the other, "before we engage in fisticuffs, I must warn you that I am HIV positive"?


I can hear the uproars from GLAAD now! Image

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
I think that if there were a transmission of body fluids in the post made by Van, sensei, this might be a case of voluntary assumption of risk in civil law, and require a specific intent under criminal law.


The only time this has ever been used criminally has been in cases where homosexual protesters or drug addicts being arrested have spit on responding authorities while say things like (paraphrased): "DIE! I have AIDS and I'll give it to you!"

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
If we apply the law of aggravated assault, which would include that be means of a dangerous weapon, and would include menacing gestures such as waiving a weapon.


Have to say from indications based on the actions of most DA's offices across the Commonwealth, "that depends on whether you have an UN-pc weapon or not..."

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
The law looks to the overt act and not the state of mind of the victim.


I would have agreed with this in the past and I believe that past case laws would show that to be true, unfortunately the current climate is far more based on "feelings", "emotions" and furthering an agenda than in the past. Image Just MNSHO...
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Postby Alan K » Thu Feb 22, 2001 3:14 pm

In my post of yesterday, I forgot to address Gene DeMambro's question concerning loss of consortium.

This is available to spouses of persons who are tort victims. It is for loss of services as pointed out in these forums and many people are aware of this.

In order to recover there has to be a cause of action based on available tort law, and as Panther has pointed out there is a long road to haul in getting evidence of cause and effect in these cases.

And for Panther, the Massachusetts Supreme Judicial Court in the case of Com. v. Musgrave, 659 N.E. 2d 284 (1996)(an A & B with dangerous weapon case which reversed a judges failure to instruct the jury on proof of intent) held "that the requirement of proof the defendant intended to cause apprehension, may be met because intentionally menacing conduct gives rise to a reasonable inference of intent to cause apprehension".
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Postby Panther » Thu Feb 22, 2001 3:58 pm

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Alan K:

And for Panther, the Massachusetts Supreme Judicial Court in the case of Com. v. Musgrave, 659 N.E. 2d 284 (1996)(an A & B with dangerous weapon case which reversed a judges failure to instruct the jury on proof of intent) held "that the requirement of proof the defendant intended to cause apprehension, may be met because intentionally menacing conduct gives rise to a reasonable inference of intent to cause apprehension".<HR></BLOCKQUOTE>


That's based on "intentionally menacing". Unfortunately there are cases in Massachusetts where the courts have held that the mere inadvertent visability of a concealed firearm is enough to cause apprehension and bring forth the charge of "brandishing".
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