Daniel Hay Lewis was charged with the criminal transmission of HIV because he tried to bite a Broward Sheriff’s deputy while being arrested early last week. LGBT and health advocates are now speaking out about the case, saying the charges are inappropriate and an example of “prosecutorial hysteria.”

Lewis remains in custody, and has also been charged with grand theft, obstructing with violence and assaulting a police officer.

Responding the charges against Lewis, Michael Rajner, legislative director of the Florida GBLT Democratic Caucus, wrote to The Florida Independent:

While I do not know Mr. Lewis, nor am I serving as an advocate on his behalf … I’m extremely concerned with the Broward County Sheriff’s deputy having charged the Mr. Lewis with criminal transmission of HIV.

Rajner — a social worker who lives with AIDS and serves on Broward Sheriff Al Lamberti’s Council for Diversity and Equal Opportunity — added:

I called Broward County Sheriff Al Lamberti and an assistant state attorney at the Broward County State Attorney’s Office to discuss the particular statute in question, Florida Statute 775.0877 “Criminal Transmission of HIV; Procedures; Penalties”. Sheriff Lamberti shared my concern that this charge, based on the information provided, did not appear to be appropriate. As often with these kinds of cases, prosecutors employ fear and not science when prosecuting these kind of cases.

In my conversation with Sheriff Lamberti, he agreed to develop an initiative to educate his deputies properly on how HIV in transmitted, especially when Florida Statute relating to criminal transmission of HIV. The Sheriff further added that he would also like to approach the police chiefs’ association to ensure local police departments were better educated. I’m hoping Broward County State Attorney Michael Satz will agree to a similar effort with his assistant state attorneys.

Stephen Fallon — president of Skills4, a health care consulting firm — told the Independent that there is extensive research that shows that a bite cannot transmit HIV.

A Centers for Disease Control and Prevention FAQ explains that “only specific fluids (blood, semen, vaginal secretions, and breast milk) from an HIV-infected person can transmit HIV,” and that HIV transmission through a bite is “very rare”

In an email, Fallon wrote:

As I understand it, the man jailed is being charged with 775.0877 because he bit a police officer. That sort of action would certainly be subject to prosecution as assault on an officer, whether the person biting was HIV+ or HIV-. The language in the statute, though, is vague enough to seem to allow an extra charge because of some presumed threat of HIV transmission.

From what I see in the language, the statute is very outdated, as it does not reflect likely transmission risk. (That is, the statute does not delineate between risky types of bodily fluids and fluids that are not risky. Presumably, someone HIV+ could be charged for sweating on another person, or intending to do so, under this statute.) If I were an attorney, I would say that the extra charge against Lewis amounts to prosecutorial hysteria.

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