Texas Prosecutors Use HIV as Deadly Weapon in Aggravated Sexual Assault Case
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Let us state quite emphatically at the outset that we do not know if K. L. Sellars is guilty of the crime the Harris County District Attorney’s Office has leveled against him. Many people are wrong accused of crimes they did not commit, so we will leave judgment that to a jury of his peers.
Sellars is charged with having a 15-year-old teenager, who he met on the social networking site myspace.com, fly from his Indiana home to Houston last December, where he spend 10 days with Sellars. Based on accusations made by the teenager, the District Attorney’s Office charged Sellars with aggravated sexual assault of a child, primarily because the teenager is under age according to Texas law and secondly because Sellars allegedly used a deadly weapon in the commission of the offense.
What makes this case different, and somewhat controversial, is that it marks the first time the District Attorney’s Office has elected to use HIV as a “deadly weapon” in an aggravated sexual assault case. While Texas prosecutors in other counties have used the HIV virus as a deadly weapon, dating back to 1997, Harris County prosecutor Eric Devlin decided the Sellars case was appropriate for such a prosecution because the defendant told the teenager that he would not pay his way back to Indiana unless the teen had sex with him (Sellars).
The decision by the District Attorney’s Office to use the HIV virus as a deadly weapon in the Sellars case aroused the ire of the New York-based Center of HIV Law and Policy. Catherine Hanssens, executive director of the center, told the Houston Chronicle that “HIV should not be an aggravating factor unless there’s some evidence that he intended to do some harm and did some harm. Criminal law in every state is adequate to deal with. But to treat it as evidence of guilt and a deadly weapon wasn’t appropriate in 1985, and it isn’t appropriate now.”
Article 1.07(a) (17) of the Texas Penal Code defines a deadly weapon as “anything that in the manner of its use or intended us is capable of causing death or serious bodily injury.” Assistant District Attorney Jessica McDonald informed the Chronicle that this statute “says [a deadly weapon] can be anything that is capable, in its manner and use, of causing death or serious bodily injury.” The District Attorney’s appellate lawyer added: “I just don’t think that’s a high-hurdle—to say that having unprotected sex, transmitting those kinds of fluids, knowing you’re HIV positive, is capable of causing this child serious bodily injury or death.”
McDonald has some legal basis for this argument. One Texas court of appeals in 2005 found that the mouth of a state prisoner, who was HIV positive, was a deadly weapon after the inmate bit a prison guard on the leg, even though the guard was not infected by the virus. 1/ However, prosecutors still must prove that Sellars knew he was HIV infected and knowingly chose to have sex with the teenager without informing him of the infection.
That may be a problem in his case because it is one of those classic “he said/he said” situations. Sellars told the Chronicle in a jailhouse interview that he did not learn until this past January that he was HIV positive after he was contacted by a former lover who told him he had tested positive for the HIV virus. Sellars had himself tested and discovered that he was also HIV infected. Sellars added that once he learned he was HIV positive, he contacted the Indiana teenager to tell him that their plan to spend some time together this summer had to be canceled. The teenager, according to Sellars, did not take this news very well and “lash[ed] out with false [sexual abuse] allegations.”
Devlin, however, said the teenager told a strikingly different story. The teen said his relationship with Sellars, which apparently began some two years ago as a “friendship,” turned sour after Sellars forced him to have sex this past December. It was at this point, according to the teen, that Sellars told him that he (Sellars) was HIV positive.
Based on the scant public record, it is evident both of these individuals, the alleged predator and alleged “child” victim, exhibited gross irresponsible behavior in establishing a relationship from a MySpace contact. Internet-based “relationships” are wrought with risk and danger, and that is even more so when an older man makes contact with a young boy and they decide to establish a “friendship.”
While Texas law permits the conviction of an individual for aggravated sexual assault of a child based solely on the uncorroborated testimony of the victim if the victim informs someone other than the defendant within one year of the alleged assault which the teenager did in this case, 2/ this does not necessarily mean prosecutors have a slam dunk against Sellars. The credibility of the teenager will be a hotly contested issue at the trial, and there is plenty of room to seriously question the teenager’s account of what actually happened.
District Attorneys in Texas and nationwide have continually stretched the definition of what can be used as a deadly weapon so that now almost any object can be considered an instrument capable of causing death or bodily injury. Clearly, this was not the original intent of these criminal statutes that were developed to penalize the use or firearms, knives and other inherently dangerous instruments.
For example, on October 12, 2006, between 3:00 and 4:00 a.m., B. Bing and two of his friends, J. Brooks and C. Golightly, were out riding around Palestine, Texas in a pickup truck. Bing was driving the truck down Highway 79 when the trio decided they would throw 16.9 ounce plastic bottles of water at street signs. It seemed like harmless fun, but they soon got bored with this harmless fun and decided to escalate their level of excitement. They raised the stakes of the game with Golightly and Brooks throwing water bottles at two 18-wheeler trucks. One of the bottles crashed against the windshield of Fred Metheny’s truck but did not penetrate it. The impact, however, caused shards of glass to cut Metheny’s face and arms. The second bottle thrown by the young men struck the windshield of Erin Williamson’s truck, crashing through it and sending glass shards into her face. She suffered cuts on her face and on one of her corneas, requiring medical treatment to remove the glass fragments from her eye. 3/
The defendants were found guilty of aggravated assault with a deadly weapon and sentenced to six years imprisonment, probated for six years. The court of appeals affirmed, finding that a deadly weapon is “anything that, in the manner of its use or intended use, is capable of causing death or serious bodily injury.” While a plastic bottle of water in normal use would not be considered a deadly weapon, it was the manner of its use that made it a deadly weapon in this case.
While an HIV infected individual may simply want to experience the pleasure of sex, the decision to have unprotected sex with someone without telling them about his/her infection arguably constitutes an aggravated assault with a deadly weapon against the unsuspecting sex partner, just as much as the thrown water bottles.
With a laundry list of sexually transmitted diseases so prevalent in our society today, sex demands a tremendous amount of trust and responsibility between the two consenting individuals who join in that physical union. To begin with, it is debatable whether an HIV infected person can even engage in completely “safe sex,” but it is certain there can never be even the slightest degree of responsibility unless the infected person fully and completely discloses to a potential sex partner prior to sex about the potentially fatal infection. There is no excuse under any circumstances for an HIV infected person—or anyone else with a sexually transmitted disease—to not fully disclose their disease to a potential sex partner.
Criminal law evolved out of the primal need of the group to protect itself from the irresponsible individual. As the world over the past 100 years has experienced a dangerous increase in the human population and as travel to the remotest regions of the world has been conquered, deadly diseases now pose a significant threat to the survival of humanity. The human race is but one Ebola-type virus from extinction. The only weapon we have against the spread of such plague-like viruses is group-imposed responsibility on infected individuals—and one of the most effective ways to ensure such responsibility is to have serious sanctions available for those infected individuals who refuse, for whatever reason, to act responsibly.
HIV infected individuals who knowing have unprotected sex with sex partners without informing them of their infection are potential “serial killers.” It is impossible for the infected individual to know who or how many of their sex partners will contract HIV and die as a result of the exposure. No one should be exposed to such potentially fatal risks simply because someone is not responsible enough to fully disclose that he/she has a potentially contagious disease.
A trial will ultimately determine K. L. Sellars guilt or innocence, and future testing will determine whether the Indiana teenager was infected with the HIV virus. While we have serious reservations about whether this is the ideal or most appropriate case for the District Attorney’s Office to use the HIV virus as a deadly weapon, we do believe prosecutors should have the prerogative to bring such charges, under appropriate circumstances, to protect the well-being of the group, and this prerogative outweighs any potential stigmatization HIV infected individuals might suffer by the bringing of such a charge as suggested by some activists.
1/ Degrate v. State, 2005 Tex.App. LEXIS 547 (Tex.App.-Dallas Jan. 26, 2005)
2/ Tex. Code Crim. Pro. Art. 38.07(a)
3/ Bing v. State, 2009 Tex. App. LEXIS 9193 (Tex.App.-Tyler Dec. 2, 2009)
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair