Mar. 22--Prosecutors decided to cite HIV as a deadly weapon in charging a Houston man with aggravated sexual assault of a child last week -- a first for Harris County.
"The penal code says it can be anything that is capable, in its manner and use, of causing death or serious bodily injury," said Jessica McDonald, an appellate lawyer in the Harris County District Attorney's office. "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."
Prosecutors accusing Kevin Lee Sellars of having sex with a 15-year-old boy used Sellars' HIV-positive status to upgrade the sexual assault of a child charge to an aggravated offense, making it a first-degree felony.
While the decision to use HIV to upgrade a charge is rare, McDonald said it has been used across the country.
One of the earliest Texas cases to charge HIV as a deadly weapon, she said, was tried in Austin 15 years ago, involving allegations similar to those against Sellars. Appellate courts upheld that conviction in 1997, she added.
Last year, prosecutors in McKinneycharged Philippe Padieu similarly on six counts of aggravated sexual assault with a deadly weapon, accusing him of spreading the virus to six women. He was convicted and given five 45-year sentences and one 25-year sentence.
Prosecutors in Gatesville are trying the same tactic after similar allegations against another man surfaced last year. Coryell County District Attorney David Castillo plans to prosecute Christopher Everett in May. Everett, 26, is accused of sexually assaulting a 16-year-old boy he met on the Internet last year. Castillo said he believes Everett has HIV and plans to prosecute him, regardless of whether the boy contracted it.
"You can fire a gun at someone and miss, and it's still aggravated assault with a deadly weapon," Castillo said.
The analogy is a poor one, said Catherine Hanssens, executive director of the New York-based Center for HIV Law and Policy, because it overestimates how easily HIV is spread and stigmatizes those with the virus.
"HIV should not be an aggravating factor unless there's some evidence that he intended to do some harm and did some harm," Hanssens said. "Criminal law in every state is adequate to deal with it. But to treat it as evidence of guilt and a deadly weapon wasn't appropriate in 1985, and it isn't appropriate now."
In more than 20 years of advocacy, Hanssens said she had seen dozens of charges involving defendants with HIV, some arising from charges involving biting and spitting.
Hanssens said charges alleging a "deadly weapon" arise from an infected person's knowledge that they have the virus.
She blasted prosecutors and public officials for not considering the deeper ramifications of calling HIV a deadly weapon.
"To refer to HIV as a deadly weapon in 2010 speaks of just unforgivable ignorance," Hanssens said.
Suspect denies charges
In a jailhouse interview last week, Sellars denied having sex with the youth and said the boy would not test positive for HIV. He said he and the boy slept in the same bed after he flew the teen to Houston from Indiana for 10 days in December, but they did not have sex.
If convicted, Sellars faces a maximum punishment of life in prison with a chance of parole after 30 years.
Eric Devlin, chief of the district attorney's Crimes Against Children Division, said Sellars coerced the teenager into sexual acts from Dec. 20 to Dec. 30 by saying he would not pay for the boy's trip home unless he complied, which Sellars vehemently denied.
Devlin said the teen told investigators that Sellars revealed the fact that he was HIV-positive after the "relationship" soured.
The boy, whose immediate family lives in the Houston area, resides with other family members in Indiana.
Sellars said he found out he was positive for HIV in January after being contacted in December by a former lover who had tested positive.
"You play with fire," he shrugged behind glass in a jail visiting area.
Sellars said he and the boy had planned to spend time together this summer. He said that when he found out he had the virus, he canceled the plans, spurring the boy to lash out with false allegations.
Asked if he knew that 15 is below the age of consent, Sellars replied, "not for friendship." The tire salesman said he and the boy met two years ago on the social networking site myspace.com.
brian.rogers@chron.com
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