Denver DA drops ‘spit as deadly weapon’ charge against HIV-positive man

Lynn Kimbrough, spokesperson for the Denver District Attorney’s Office, told the Colorado Independent Thursday that the attempted second-degree assault with a deadly weapon charge against HIV-positive William O’Kelly for allegedly spitting on another man, was being dropped. She said the DA would continue to pursue a harassment charge.

Kimbrough said her office felt that it would be unable to prove beyond a reasonable doubt that O’Kelly had “intent to cause serious bodily injury” when he reportedly spit on Jason Arb during a dispute.

“Let me also say, however, that we are not questioning whether or not HIV can be transmitted in saliva….” Kimbrough said. “I think that that is pretty well understood that the [Center for Disease Control] has their information out that HIV is not transmitted through saliva. They have not had a documented case. So acknowledging that, proving attempted second degree assault in this particular case would require that we would prove the intent and we don’t believe that we can do that.”

The charge stated that O’Kelly spit “infected saliva” on Arb, a technician installing a monitoring system to track O’Kelly, who was on probation for drinking and driving.

Bebe Anderson, HIV project director for Lambda Legal, told the Colorado Independent that HIV is not transmitted through saliva and therefore can not be considered a deadly weapon under Colorado statute, yet she said these types of cases are not unique to Colorado.

“We have heard about various prosecutions under various statutes against people who have HIV, where they spit on someone or they bit someone. We have filed amicus briefs because HIV is not transmitted through saliva.”

Anderson said that these kinds of charges are based on widely debunked myths. The medical community knows this idea is ludicrous but, she said, that’s “not always understood by the general public, prosecutors or courts.”

The Center for Disease Control information on the topic couldn’t be any clearer:

Contact with saliva alone has never been shown to result in transmission of HIV, and there is no documented case of transmission from an HIV-infected person spitting on another person.

Kimbrough said that the case was amended in the final review process.

“We review cases continually as they go through the process so it is not unusual to review cases. As addition information becomes available and as other sets of eyes look at the facts of the case and compare it to the way that the actual elements of the statutes read for there to be amendments,” she said.

The seriousness of the charge meant O’Kelly was being held in jail on a $250,000. Geoff Guth, O’Kelly’s partner, said he was more than relieved that the DA dropped the charge.

“I am very gratified… and am hoping this will result in the D.A. requesting an immediate reduction in the bond as well so that he can be bonded out of jail as soon as possible. Hopefully if they recognize they made that mistake in making that charge in the first place, they will go ahead and expedite that process.”

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