New York High Court Rejects Aggravated Assault Charge in HIV Spitting Case

(New York, June 7, 2012) — Today, New York Court of Appeals dismissed an aggravated assault conviction based on HIV status and remitted the case back to Herkimer County Court for resentencing.

"This is a terrific development. The Court clarified that saliva—like other body parts—cannot be considered a dangerous instrument under New York penal law," said Scott Schoettes, HIV Project Director at Lambda Legal. "That means that other bodily substances that are naturally present—like a person’s blood or semen—also would not support a prosecution based on use of a ‘deadly instrument.’ This decision is a great step forward in the fight against criminalizing the lives of people with HIV." 

In September 2006, David Plunkett was arrested following an altercation with police during which he allegedly bit one of the police officers. Because he subsequently revealed to the officers that he has HIV, Plunkett was charged with aggravated assault upon a police officer, a felony premised on use of a "dangerous instrument."

Last April, Lambda Legal filed an amicus brief in the matter and urged the Court of Appeals to drop the aggravated assault charge because the realities of HIV transmission risk do not support prosecuting Mr. Plunkett under a law addressing the use of a dangerous instrument and because the charge leads to public misunderstanding of how HIV is transmitted, contributes to stigmatizing people with HIV and undermines important public health goals. Today, addressing arguments raised in Lambda Legal’s brief, the Court of Appeals ruled that parts of a person’s body, including bodily fluids like saliva, could not be considered “dangerous instruments” and should not be used to enhance the criminal sanctions against a defendant.

The case is People of the State of New York v. Plunkett.

To read the amicus brief: www.lambdalegal.org/in-court/legal-docs/plunkett_ny_20120319_amicus-lambda-legal-et-al

To read today’s decision visit: www.lambdalegal.org/in-court/legal-docs/plunkett_ny_20120607_decision-ny-court-of-appeals

Scott Schoettes, HIV Project Director, is handling this matter for Lambda Legal. The amicus brief was filed on behalf of American Academy of HIV Medicine, Association of Nurses in AIDS Care, Center for HIV Law and Policy and HIV Medicine Association.