Monday, September 29, 2003

AIDS privacy law argued


Prostitution arrest public

By Sharon Coolidge
The Cincinnati Enquirer

Charles Woodgeard put lives in danger when he offered to provide sex for money last month, Hamilton County prosecutors say.

The 43-year-old Roselawn man is HIV-positive and knew it when he solicited an undercover police officer, leading to his arrest on more serious charges because of his HIV status, authorities say.

Like all criminal cases, Woodgeard's case immediately became public record. And like such cases, the details - including his HIV status - were posted online after his Aug. 20 arrest.

But that puts the law at the crossroads between a person's right to medical privacy and the public's health. No other Ohio law is so closely tied to a person's medical records.

AIDS activists and Hamilton County Public Defender Lou Strigari say identifying people believed to have the disease via a criminal charge violates a person's privacy - especially if he has not yet been convicted. Specifically, they point to the Hamilton County Clerk of Courts Web site, which posts suspects' names and details of their alleged crimes, as do such sites across the nation.

"We believe people's HIV status should be held in the strictest of confidence until they choose to disclose it for all the reasons of prejudice that we know comes with the HIV disease," said Victoria Brooks, executive director of AIDS Volunteers of Cincinnati. "Once it's out there, they cannot recoup the loss."

Ohio legislators, police and prosecutors say the right to privacy ends when a person puts somebody's life in danger.

Cincinnati Police Capt. Paul Humphries said the safety of the public, and emergency workers who could be dealing with people who have the disease, outweighs a person's right to privacy. This law is one way to reveal the risk, he said.

"It's a safety issue," Humphries said. "We've had prostitutes spit and pee on police officers."

"They get beaten up and robbed, they bleed and the first person there is EMS or police," Humphries said. "Yeah, they have protective equipment, but there's always a chance for exposure."

The law is intended to impose tougher sentences on prostitutes who knowingly risk transmitting the disease.

Legislators knew when passing the law that it would identify people with the disease, but felt the public had a right to know, said Republican Ohio Rep. Lynn Olman, a co-sponsor of the bill.

Olman likened the crime to attempted murder.

"I don't have a great deal of sympathy for someone who goes out and pays a prostitute, but at the same time they don't deserve the death penalty," Olman said. "We felt it was an important statement to make, saying that if you know you have this disease, soliciting and prostitution is not acceptable behavior."

Cases go undiagnosed

Between 4,000 and 6,000 people in Hamilton County are thought to be HIV positive, Brooks estimated, and said many of them have not been tested and don't know their status. At least 2,500 people are receiving treatment for the disease in the county.

Statewide there are 11,000 identified cases of HIV, although some experts say that number could be as high as 18,000. Nationwide, there are 793,000 reported AIDS cases, Brooks said.

Woodgeard is one of two people arrested in Hamilton County during the past month on charges of soliciting sex after testing positive for HIV. Thirty-five people have been charged here since the law was enacted in 1996, according to court records. Since 2000, the charge has been brought in Warren County just once and never in Clermont County. Statewide statistics are not available.

In 2002, seven people were arrested on the charge, but a Hamilton County grand jury indicted only one person. However, the other six are still listed on the county's Clerk of Courts Web site.

"It's a tough case to prove," said Assistant Hamilton County Prosecutor Jim Butler, who oversees the office's sex crimes unit. "There are privacy issues."

Prosecutors need more than a positive HIV test from the defendants to make the charge stick. They must show that the defendants were aware before the offense that they were infected with the virus. That usually means that person must have been seeking treatment or counseling with a paper trail to back it up.

Even when there is paperwork, it can be hard to come by. Medical records are private.

In Woodgeard's case, his attorney, Wendy Calaway, said privacy was less of an issue because he told officers he was HIV positive.

In an ideal world, people with HIV would not prostitute themselves - but that's not the case and the criminal charge helps protect the public, Humphries said.

Debra Johnson, 38, of Over-the-Rhine, has been arrested twice in Hamilton County on the solicitation with HIV charge. She was convicted in June 2002 and sentenced to a year in prison. She was arrested again this month and remains in the Hamilton County Justice Center on $10,000 bond pending trial.

"Yes, soliciting is a crime, but you don't want a misdemeanor crime to be a death sentence," Humphries said.

Buyer beware

Brooks said people are responsible for protecting their own health.

"There's an expectation that people disclose that in a private setting," Brooks said. "But, one must also protect themselves in case of non-disclosure."

It would be different if the charge referred to an airborne disease, in which a person cannot protect himself.

"You have to do something to get HIV, you control the behaviors you engage in," she said. The answer, Brooks believes, lies not in eliminating the charge, but revising Ohio's open record laws.

"This is a real unusual position," Brooks said. "A person charged with a crime is a matter of public record, but never before did it involve medical records."

Instead, she says, any charges involving medical records should not be made public until conviction.

In the meantime, Strigari said his office - which mostly handles these cases since those charged often cannot afford to hire private counsel - tries to get as much leniency from prosecutors and judges for his clients.

The maximum sentence for the charge is five years in prison.

Woodgeard pleaded guilty Thursday in Hamilton County Common Pleas Court to soliciting after testing positive for HIV. Judge Patrick Dinkelacker sentenced him to one year in prison.

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E-mail scoolidge@enquirer.com




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