Here's a small sampling of criminal-exposure laws, state by state:

In Arkansas, it's a felony to use a dildo on someone without first telling them you're HIV-positive. In Iowa, exposure is defined only as "intimate contact" with no further clarification. And in Indiana, "A person who knowingly or intentionally in a rude, an insolent, or an angry manner places human blood, semen, urine or fecal waste on another person" has committed a felony if that substance has HIV in it. In some states, spitting while HIV-positive is illegal.

As a result of the randomness, the laws have ensnared people engaged in extremely low-risk activities, and can be applied selectively by local prosecutors who might be more interested in enforcing morality than in statistics about transmission rates. One apparent example of this occurred in Georgia last year, when a fourth-year med student in Atlanta named Garry Wayne Carriker was sentenced to ten years in prison for having oral sex with another man while HIV-positive. When a reporter from the Southern Voice, a gay newspaper, asked the prosecutor whether Carriker had given or received the blowjob (a significant distinction — the CDC names no documented cases of HIV transmission to anyone who has received a blowjob), the prosecutor cringed and said, "I didn't get into those kinds of details."

A similar case took place a few thousand miles to the west, in a town called Pahrump, Nevada, where a thirty-two-year-old substitute teacher named Brian Lepley was convicted of performing oral sex on a teenager in 1997 without disclosing his HIV-positive status.

Pahrump, population 25,000, is an isolated, conservative community nestled in the desert sixty miles west of Las Vegas. RV dealers line the main commercial strip, and a shooting range offers family classes in proper gun operation. Its biggest celebrity is Art Bell, Sr., the founder of a popular syndicated radio talk show about paranormal activities.

The teenager Lepley orally serviced was Art Bell's son, sixteen-year-old Art Bell Jr. (In Nevada, age sixteen is the age of legal consent).

Lepley would occasionally get beer and weed for Bell Jr. and his friends, one of whom was eighteen-year-old Kenneth Searles. They'd all go down to a local pond at night to get high and go skinny-dipping. One night, while driving Bell home, Lepley asked him if he could give him a blowjob. Bell said yes, though in the subsequent trial he said that he wouldn't have consented had he not been drunk and stoned. Lepley performed oral sex on Bell in his car while parked on a deserted road.

Lepley also had two sexual encounters with Bell's friend Searles, whom he'd met in a college psychology class they were taking. Searles later testified in court that he and Lepley had had anal sex twice, once with a condom and once without (Lepley insists he always used protection). Searles also said that he was unaware of Lepley's HIV status, though in his statement to the police upon Lepley's arrest, he wrote down that Lepley "told me he had HIV but not AIDS."

Ultimately, Bell and Searles testified against Lepley on charges of sexual assault and criminal exposure to HIV (both of them tested negative for the virus). From court transcripts provided by Lepley, it seems the case rested almost solely on Bell's testimony against him. Under questioning from the defense attorney, Bell even seems to admit that he'd been coached by a lawyer to say that he was "scared" the night that Lepley gave him the blowjob in the car.

"Someone got me to believe that that was the right thing to say," said Bell when cross-examined by the defense. "One of the lawyers."

Herein lies a significant problem with the laws, as Hoffman points out.

"Given that the 'crime' in question . . . takes place in private between individuals in an intimate setting, the facts surrounding any incidence of transmission of HIV, or any potential exposure to HIV, are nearly impossible to prove (as often, there are no witnesses to the events in question), and often come down to a 'he said, she said,' 'he said, he said,' or 'she said, she said' situation. Even if one person supposedly infects another, it is difficult to prove that that person was the source of the infection (the person who contracted the virus could have had other partners during or since the time that the infection supposedly occurred.)"

Finally, since the case essentially relied on Bell's account of what happened, one has to wonder if, living in such a small and conservative community, Bell felt it necessary to publicly disassociate himself from Lepley because of homophobia.

Before the trial, Bell's mother had found a letter her son had written to his girlfriend admitting that he'd hooked up with Lepley. In the letter, Bell seems to imply that he enjoyed the encounter, calling it "fun." Toward the end of his testimony, the defense asked Bell if he had decided to report Lepley to the authorities because his parents had found out about their tryst. "Are you afraid of your dad?" the defense attorney asked Bell.

"No," was Bell's response.

"And you didn't report this as a rape because you were afraid that your father would find out you were gay?" the defense attorney asked.

"No," Bell responded again.

Lepley was convicted and received a sentence of ten years to life. Now forty-one, he's housed in a medium-security wing of Northern Nevada Correctional Center in Carson City.

Though Lepley was diagnosed as HIV-positive nearly twenty years ago, he's what's known as a long-term non-progressor; his T-cell counts are high and his viral load remains undetectable. Yet as a prisoner with HIV, he says he faces "ignorance, hatred, stigma — in prison, there is no education program teaching transmission, spread, treatment or prevention," he wrote to me in a letter (his warden felt that a phone interview would be "too disruptive").

Lepley spends his days teaching Spanish to the other inmates. He's also trying to "convert" to heterosexuality as a Jehovah's Witness. "I have four Bible studies and a field-service ministry," he writes. "I study the Bible every day." He keeps in close touch with his adoptive mother, and hasn't spoken with Art Bell Jr. or Kenneth Searles since the end of the trial. Though he's up for parole in 2008, he believes he will not be released. "Let's be realistic," he writes. "I will continue to be a minister and will pioneer."

Should anyone at all be prosecuted for exposing others to HIV? Do the Brian Lepleys, who engage in virtually no-risk behavior, deserve to be prosecuted? Or only the Anthony Whitfields, who go condomless with their ignorant partners? Or not even the Whitfields? Where's the line?

For the HIV-negative, being unwittingly exposed to the virus can turn a normally empathetic bleeding heart into a prosecutorial hardliner. Poz magazine's recent story on criminal-transmission laws jumpstarted an impassioned debate on the website of gay activist Keith Boykin — not exactly a hotbed of conservative commentary. While his readers argued back and forth in the comments section, someone under the handle "Chris" jumped into the fray.

"I just learned today that I am HIV-positive," wrote Chris. "Of course, I am hurt, but I am crushed by the fact that the person who gave it to me knew that he had it and did not tell me. We practiced safe sex, and I even asked him if he had it. HE LIED! I don't know how, but I contracted the disease from him.

"I feel that a person has the right to determine whether or not he or she wants to be intimate with someone who is HIV-positive," Chris continued. "No one has the right to play with a person's life. You'd better believe that the guy who infected me will be prosecuted."  n°

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