Denver HIV-positive man charged with using spit as deadly weapon

An HIV positive Denver man has been preliminarily charged with attempted second-degree assault with a deadly weapon by the Denver district attorney’s office for allegedly spitting on another man during a dispute. A spokesperson for the DA’s office said staffers are currently examining the case to determine whether the charge is appropriate.

“We are at the point in the case where it has gone to the deputy district attorney who will handle it and he is currently reviewing it,” Lynn Kimbrough told the Colorado Independent. “The circumstances here are not common… this doesn’t come up very often.” Kimbrough said that off the top of her head, she was unaware of another case where the saliva of an HIV-positive person had been treated as a deadly weapon. “Without knowing a specific case and a specific defendant, I would hesitate to say with certainty.”

According to the police report, Jason Arb, a technician with the Rocky Mountain Offender Monitoring System, arrived at the home of Wiliam O’Kelly to install a monitoring system at O’Kelly’s home for a drunk driving offense. During the visit, O’Kelly objected to the price of the system and told Arb to leave the house. Arb said he would have to report the information to O’Kelly’s probation officer. The two argued and O’Kelly reportedly spit in Arb’s face. Later, upon speaking with O’Kelly’s parole officer, Arb learned O’Kelly was HIV positive, at which point he filed a formal complaint.

O’Kelly’s partner, Geoff Guth, who was at the scene at the time, told the Colorado Independent that it was not O’Kelly but Arb who became angry during discussion at the house.

“Mr. Arb immediately began making threats about complaining to Mr. O’Kelly’s probation officer. He stormed out of the house, slamming the door. Mr. O’Kelly followed to ensure Arb left the premises and to prevent any damage to our property. There was a verbal altercation, with Mr. Arb threatening violence. Mr. Arb left, and Mr. O’Kelly returned to the house,” Guth said.

O’Kelly is charged with Criminal Attempt to Commit Assault in the Second Degree. The charge details that the “assault” was committed with “infected saliva,” which it describes as a deadly weapon. O’Kelly “unlawfully and feloniously attempted to cause bodily injury to Jason Arb, by means of a deadly weapon, namely, infected saliva,” the report reads.

Colorado State Statutes define “deadly weapon” mostly by the manner in which the “weapon” is used or intended to be used and whether or not it is capable of producing death or serious bodily injury.

Mindy Barton, legal director for the Gay, Lesbian, Bisexual and Transgender Center’s Legal Initiatives Project and who also works with Equal Rights Colorado, told the Colorado Independent that cases like the one involving O’Kelly are from a time before medical information about the low transmission rates in saliva were known. The chances of transmission in this case, she said, are”low to zero.”

My understanding is that saliva has not had any evidence of causing HIV transmission… There have been cases where [HIV was seen as a] deadly weapon but I think that is reinforcing some old stereotypes.”

O’Kelly has said that he is unwilling to plead guilty to the charges. He is being held on $250,000 bond.

Kimbrough said there are statutes that handle the behavior of people with HIV. Prostitution with knowledge of HIV is a felony in Colorado, she said. “There are also other statutes that address tuberculosis, Hepatitis C, those kinds of things. There is a range of state law covering a variety of those things.”

Kimbrough said central to the case is the mental state shaping the altercation. What was the intent, belief, knowledge in play? she said. That’s a main factor when “we look at cases and try to determine the appropriate charges.”

The Michigan Messenger reported on a similar, where an HIV-positive man was charged under Michigan’s bio-terrorism laws for biting another man. The court there dismissed the charge based on evidence that bloodless saliva poses no threat of HIV infection.

“I think somebody was trying to be creative or reach way too far outside the box,” Jay Kaplan, ACLU Michigan LGBT Project staff attorney told the Messenger. “The unfortunate thing is that it gives credence to the misperception that HIV can be spread through saliva. [Judge Maceroni] directly confronts that myth and says ‘No that’s not true.’”

O’Kelly’s case will be heard in Denver at the end of the month.

Edit note: This post originally reported suspect William O’Kelly’s name as “Matthew O’Kelly” and said, in the lead, that he was charged with assault. He was charged with attempted assault, which was made clear in the sixth paragraph. The Colorado Independent regrets the errors.

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