Archive for the ‘Law School’ Category

This week, The Canadian Supreme Court heard an appeal involving a people living with the human immunodeficiency virus, who recently were acquitted by provincial appeal courts of aggravated assault and sexual assault charges for not disclosing their HIV status. The convictions hinged on their failure to inform his sexual partners that they have HIV.

In the first case, Mabior was convicted in 2008 of aggravated assault for having sex with six women without disclosing his status, but two years later he was acquitted on appeal. The Manitoba Court of Appeal ruled if an HIV-positive person wears a condom or has a low viral load and, therefore, a low risk of transmitting the virus, having sex does not pose a risk of serious bodily harm.

In the second case, a Quebec woman did not disclose her HIV-positive status to her former spouse. In neither case did the “victim” contract AIDS. In 1997, Florida legislators made it a felony for an HIV-infected person to have “sexual intercourse” without informing the partner of their infected status, adding the virus to a list of established STDs like gonorrhea, chlamydia and syphilis.

But Florida statutes specifically define sexual intercourse only as vaginal sex between a man and a woman meaning — “the penetration of the female sex organ by the male sex organ.” Therefor gays and lesbians cannot be charged. The question before the courts and legislatures needs to be decided on legal and not moral grounds.

For the vast majority of people living with HIV, preventing others from becoming infected with the virus is a primary concern. HIV positive individuals are aware of just how difficult it is to live with the illness.

Not all HIV positive people take the precautions that they perhaps should. Some people, angry at their plight or just plain crazy, “deliberately or recklessly transmit the virus” to others. Some of the individuals concerned have even been criminally charged for their actions. To some it might seem obvious to prosecute someone for recklessly or intentionally infecting another with an ultimately fatal virus.  I personally oppose this position for several reasons.

As I have stated earlier, I have been infected with the HIV virus since December 1980.  I personal feel it is my duty to tell people up front about it before there is any intimate contact that could cause exposure. I do not however think that it relives the other person from being responsible for his or her own protection. Unless a person has been home schooled or worse, they should know that every person is a possible carrier of HIV, Herpes or other STD’s. Each person is responsible for his or her own protection. By criminalizing the status of the person with HIV for not telling and not criminalizing the “negative” person for not inquiring, is wrong. It is the same as making the actions of a drug dealer criminal but not the actions of the person buying drugs.

It also becomes a dis-incentive to getting testing and treatment. More important it is impossible to defend against.

Let’s start by using the case of the woman accused of not telling her ex-husband. What was to stop him for saying he was not told simply as a way of getting back at her for cheating or other perceived malfeasance during the marriage. It becomes a he said she said. If it is a case of a trick in the bar, or an ex boyfriend, this becomes a matter of ones word against another. We all know hell has no fury like a scorned queen!

Second if the “victim’ is exposed, it needs to be proven that the accused was definitely the source of the accuser’s HIV. This would involve a range of evidence including sexual history, testing history and scientific evidence in the form of phylogenetics. This compares the DNA of the virus. If they are completely different then it means that the accusers almost certainly did not acquire HIV from the accused. If the strains are very similar, however, it is possible, though not conclusive, that the accused infected the accusers. Phylogenetics cannot reliably estimate the direction of transmission and therefore it is possible that the accusers infected the accused. Furthermore, the same third party, or different third parties who shared similar strains of HIV could have infected both.

Then there is the issue of informed consent. Can you really have informed consent after 4,6,8 drinks on a Saturday night? Being under the influence is a legal justification for getting out of contracts.  Do people need to start carrying informed consent contracts to the bars at night in case they get laid? The most bizarre aspect of the entire thing is that if an HIV person is raped and does not inform the rapist that they are positive, the rape victim is then guilty of a felony. This is a very real scenario in our prison system.

These laws don’t necessarily provide the public with any additional protection, and it may in fact provide the public with a false sense of security because people may have unprotected sex, presuming their partner must be HIV negative because a criminal offense has been created. Do not confuse moral with legal when it comes to obligations. We should not criminalize status.

I am getting more and more upset by the constant flood of crap that is frothing out of Rick Santorum’s mouth on a regular basis. His ass must be getting jealous of the crap that mouth has seen. The worse comes when he speaks of “Gay Marriage.”

Now people tell me I should not get upset and that he has no chance of winning the nomination. I say BULL! He is giving voice to millions of Americans. Americans who will continue to harass, beat and kill gay men and woman because they are genetically different and they do not understand that difference.

First I have to say that I despise the term “Gay Marriage.” This past year, on our 18th anniversary, Ed and I got married in Washington DC where we first met at a political march. We did not get gay married any more than we had a gay lunch after the wedding and gay parked our gay car (ok it was a Chrysler Sebring but you get the point). We got married in Washington DC pursuant to the laws of the Federal District of Columbia and the rules of the United States Congress. It is Marriage, not gay marriage. We are fighting for Marriage Equality not something new and different.

Second, Santorum’s stump speech says that; “Marriage is not a right.” “It’s a privilege that is given to society by society for a reason…. We want to encourage what is the best for children.” That statement is wrong on so many levels when examined. First, Santorum and I were in law school about the same time. When I was in school, Creighton, a Jesuit Law School, We learned about a case called the Loving Case. (LOVING v. VIRGINIA, 388 U.S. 1 (1967)). Many states, including Florida, through the 1960’s had Anti-Miscegenation laws on the books outlawing interracial marriages. The Supreme Court declared that these laws were, “designed to maintain White supremacy”. The Court stated in no uncertain terms,
“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not to marry, a person of another race resides with the individual and cannot be infringed by the State.” I am not sure where Santorum got his information but marriage is not a privilege and equality is not a privilege. It is a basic right.

He and his ilk, the evangelical Christians, talk about the sacredness of marriage. I will point out that government sanctions marriage. There is NOTHING that a government in this country can do, under the Constitution, that is “sacred.” The government issues a license to get married and to have certain benefits and obligations bestowed on two people. The government cannot issue a sacred document. It is at its’ base a contract between two people for mutual support. Marriage has not been between one man and one woman since time immemorial. Not until the very recent times did it morph into that. Before that it was between and man and his property. One man bought a daughter from another. The payment took the form of a dowry. As an attorney, I still deal with divorces of marriages performed in other countries that require the return of goats and such.

The last part of his statement is equally absurd. “We want to encourage what is the best for children.” Does that mean my brother and sister-in-law, married for over 20 years having no children, are not really married. The other possibility is even more absurd and point out why Christians find science to be the enemy. It is highly unlikely that a marriage of two people of the same gender will produce children. When I was in catholic school, in the sixth grade, I learned that it takes and x and y chromosome to produce a child and to get the right combination requires people of two different genders. Maybe they have discovered something new in genetics that I missed. As to the need to protect children, protect them from what? Priests? “Youth counselors?” Michelle Bachman’s husband? I will let Zach Wahls close for me. He is a 19-year-old University of Iowa engineering student and Eagle Scout whose parents are lesbians. Wahls gave a three-minute speech Tuesday before Iowa legislators urging them not to pass a constitutional amendment that would ban gay marriage and civil unions.

His words went viral across the Internet and had nearly a half million hits on YouTube in a single day.

This past week I have been skiing for the first time ever.  Another item off the bucket list! One of the more interesting events of the week had nothing to do with skiing but was a friend request on Facebook. The request came from a law school classmate who I have not spoken with in over twenty years. I have not written much about law school except for my reasons for applying. One reason for why I ignored those three years is that they were hellish.

Creighton Law School - 1987-1990

They were not hellish in the “always studying, never playing, never socializing way”. I could live with that. They were hellish in the “having a horrible relationship while doing experimental drug protocols and living in a backwater hell hole called Omaha while going to a conservative Jesuit law School and trying to keep it all hidden from public view while living with a selfish stoner of a boyfriend” kind of way.

What made the friend request interesting was that it was from a classmate whom I had little interaction with, but carried a schoolboy crush for. Attached to the Facebook request he indicated that although he married out of school he and his wife had split and he had “come out”. He explained what triggered his search for me was reading a book that mentioned the Bowers v Hardwick decision (A case involving criminalization of homosexual activity). He remembered an incident in Constitutional law class when Professor Shugrue, after deriding the legitimacy of gay relationships, asked for my reaction.

To understand Professor Shugrue think Hobbit meets The Paper Chase. He thought of himself as a modern day Charles Kingsfield but looked like a hobbit with a skin condition. The first day of classes we were to be ready to discuss the classic case of Marbury v. Madison. True to the Socratic method of teaching, Shugrue called on me to analyze the case. I cannot remember what I said exactly but I’m sure it was insightful and elegant. I did however say Marshall instead of Justice Marshall. Shugrue jumped all over that omission saying, “Although you may be on a first name basis with the Justices, in the class we will refer to them as Justice Marshall or Chief Justice Marshall. I found out that Shugrue was on the admission committee and was privy to my application and personal reference letters. Justice Thurgood Marshall, Justice Byron White and Senator Tom Harkin (D-IA) wrote the personal reference letters. I had worked for all three in one capacity or another. Apparently I intimidated the good professor and he was going to try to put me in my place. We spent the next hour in a spirited discussion and in the end I had established myself as one who could not be intimidated and come hell or high water I was going to piss high than him!

Moving forward a couple months the discussion was about the Bowers/Hardwick decision concerning sodomy. Shugrue took the position that sodomy was not natural and should not be given protection and other conservative-babble not related to the law. I realize that this probably not his true position on the matter since he did not include any legal arguments in his discussion, but at 8 AM on a Monday morning, after a weekend of partying and fighting with Steven, I was in no mood. I raised my hand and went into a full throttle defense of gays, gay life styles, bath houses, leather and SM and relationships finally closing by saying that my other half and I had been together 6 years at that point (five and a half to many) but that we were more long term than most of my fraternity brothers from undergrad. Many of who were already on their second marriage. I kicked open the closet door and came flying out like the Tasmanian Devil. There appeared to be a stunned silence in the lecture hall. I think many expected me to go storming out of the room but I stood defiant, arrogant and emotionally drained.  After a bit the discussion continued. Shugrue moved on to another student and I sat. I soon saw the fallout. Many of my classmates who played racquetball with me or studied with me now avoided me. Small-minded America had reared it ugly face. I did however find a circle of friends. They included the few progressives in the school, and surprisingly, a couple of Mormon students who were incredibly nonjudgmental.

The isolation was actually a godsend in that I did not feel the need to integrate myself into the typical student social scene. Although the gay scene in Omaha was abysmal, I made due with it and the bookstores across the river in Council Bluffs IA. I also had the Iowa caucuses to keep me busy. I helped organize for Senator Paul Simon of IL, the bow tie guy, and did advance for him in Iowa.  A picture from one of my events was featured in Time Magazine. I had a great eye for photo ops. It was my second political campaign in Iowa. The first one being the Harkin Senate race in 1984.  Although I was out of the closet as a gay student, I still hid my medical secret close to my vest. If anyone at the school found out that I had AIDS I probably would have been separated from the rest of the students. I continued my bi-weekly visits to NIH for lab work and follow-up while testing new drugs. I was emotionally and physically a wreck. I stayed in a relationship with Steven because I thought it better to die in a miserable relationship than to die alone. It did not dawn on me that the relationship was doing more to kill me. We finally parted ways a couple months after graduation.

I’m sure there were some good times in law school. But right now I can’t really think of any. Well except my first jailhouse sex. But that’s a story for another day.