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HIV-Positive Man Charged with Aggravated Assault for Spitting on Police Officers

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Anthony Duane Horne, 25, an HIV-positive man, was charged with aggravated assault for spitting on two Dallas police officers, The Dallas Morning News and Dallas Voice reported yesterday. According to police, when a Dallas County Hospital employee tried to put a spit mask on Horne, who was being booked for public intoxication, he apparently got loose and spit on a male officer. Then he was taken to the Dallas County Jail, where he spit in a female officer's face. Both officers were sent to the hospital to make sure they weren't infected.

Horne also has hepatitis, the papers reported.

First things first: You can't get HIV from spit. The Centers for Disease Control and Prevention makes an explicit point of saying that there are no known cases of HIV being spread through saliva.

But Horne is being charged with aggravated assault, because his saliva is considered a deadly weapon. HIV can spread through some of those other fluids that constitute assault, sure. Specifically blood, seminal fluid and vaginal fluid. (Also breast milk, brain and spinal fluid, fluid around joints and around unborn babies, but you probably shouldn't sling those at cops even if the penal code doesn't mention them.) But not saliva.

"When these kinds of charges are brought there really is no rational reason for bringing them," says attorney Scott Schoettes, HIV projects director for Lambda Legal, a civil rights group that focuses on people living with HIV/AIDS and LGBT communities. "I'm not seeing any justification here for bringing these charges."

Now, Horne would have been charged with assault regardless of his HIV status. Since January, three other people have been charged with assault and harassing a public servant for spitting on cops. The Texas penal code considers "harassment of public servant" to be an "assaultive offense." It defines that harassment as when someone "causes another person the actor knows to be a public servant to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of the actor, any other person, or an animal while the public servant is lawfully discharging an official duty or in retaliation or on account of an exercise of the public servant's official power or performance of an official duty."

But Texas has an odd relationship with spit and HIV. Here in Dallas in 2008, an HIV-positive homeless man spit at an officer and was sentenced to 35 years in prison on a charge of harassing a public servant with a deadly weapon, which along with causing serious bodily harm constitutes aggravated assault. There's nothing in the penal code explicitly saying that bodily fluids count as deadly weapons, but in that case the prosecutors argued that any amount of risk was enough to qualify the man's spit as a deadly weapon.

A year ago a Lufkin man was sentenced to 10 years in prison for spitting at officers and claiming to have HIV (he tested negative the next day).

Schoettes believes that these decisions are prompted by "a lot of misinformation and misconceptions."

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