The Alternative Weapon, Essay Example

The Threat of HIV AIDS in law

Facts

The consolidated appeal from a jury trial on one count and a bench trial on two counts of second degree assault in The State of Washington, Respondent, v. Calvin Edward Stark, Appellant [Nos. 14261-9-II, 14930-3-II Division Two, 66 Wn. App. 423; 832 P.2d 109; 1992 Wash. App.], a  resulted in affirmation of the trial court’s decision, yet remanded the appellate back to trial for resentencing on count 1 of intentionally exposing his sexual partners to the human immunodeficiency virus (HIV), RCW 9A.36.021(1)(e).

Issues

Citing that the count 1 conviction belied exceptional sentence, the appellant was found guilty at bench trial on two additional counts, 2 and 3, which the trial court imposed concurrent standard range sentences. As the Washington court did not convict Stark of a sexual offense, or the more serious crime of second degree murder, voluntary manslaughter as it might have found in other states such as California, as the laws in that state does not allow for that type of rule application, the Washington State Supreme Court deemed that the assault charge cannot be used for finding “future dangerousness” necessary to justify an exceptional sentence.

Decision

Admission to guilt by the defendant in the case is reliant upon evidence of knowledge that he or she is HIV positive, including the path of viral transmission, and proof that intentional activity had been engaged in to cause harm. Ruling in the Washington decision is based on standard rule application to second degree assault charges, and the alternative means of committing the offense mitigate enhancement of charges even if the victim acquires the virus. In short, the mental state necessary for determining premeditation of intent prior to commission of the act is virtually impossible based merely on due process questioning.

Standard

Parallels to the Stark case, while increasing within legal precedent in the United States exponentially in terms of allegations of this type related to intentional acts by which victims might sustain injury, and even contract the HIV AIDS virus, little provision exists to convict defendants charged with such allegations beyond assault (Gable, 2007). As mentioned, some states such as California hand down highly punitive sentences to parties guilty of commission of acts that will lead to exposure of HIV AIDS, but that is consistent with the State’s general culture of severity in rule application and high conviction rates far exceeding those in surrounding states.

Tortfeasor law offers perhaps better insight into the parameters of legal opinion within court decision on cases like Stark, in that medical malpractice suits of this type of are relatively abundant, and cover a range of complaints pertaining to intentional negligence in transmission of blood transfusions, and exposure to “unwanted touching” of instruments and syringes in those treatments, and even in case of consent. Legal opinion on this topic has typically been dedicated to discussions about fore knowledge and disclosure in medical consent, and almost always supports plaintiff arguments that no communication of danger protects physicians and medical staff party to an act where such an error has taken place, as even unintentional incidences are of course threat of (i.e. assault) or actual unwanted touching (i.e. assault and battery) regardless of prior consent to care (Gable, 2007).

Investigation of cases of transmission of HIV AIDS in family law offer perhaps the most complex, and worthy points of legal interpretation, as children born with the virus to parents whom were aware of the disease at time of conception might be put to the test by courts that are the last resort to care (Payne, 2005). Court decision on cases where the parents are both drug addicted and infected with HIV AIDS is quite consistent in mandate of custodial care on almost indefinite terms as the time of incapacity is determined to be prolonged despite court ordered therapy programs and the like. Duty to a standard of care, then, must be met by the state.

Challenge to this criteria, are opponents whom say that the waitlist for adequate foster care for these children dismantles the efficacy of protection within family law cases complicated by the dual drug addiction and HIV AIDS factor, as the child may also be feared to be addicted – and that factor might emerge at any time during the course of care. One only has to visit a hospice for critical care patients to understand the limited scope of a child’s life born addicted to crack and riddled with HIV AIDS at birth. The intensive care option in the most serious cases is so costly, and rarely supported by the parents, that there is little else to argue for than sufficient taxpayer allocations to hospice programs as solution. Here, we see the impact and thoroughness of law, yet the unenviable limitations of law to serve and protect in perpetuity beyond stare decisis.

Works Cited

Gable, L. Legal Aspects of HIV and AIDS: A Guide for Policy and Law Reform (Law, Justice, and Development Series) (Law, Justice, and Development Series Law, Justice, and Devel), 2007. Washington D.C.: World Bank Publications.

Payne, M. Modern Social Work Theory, Third Edition, 2005. Chicago: Lyceum

The State of Washington, Respondent, v. Calvin Edward Stark, Appellant, Nos. 14261-9-II, 14930-3-II Division Two, 66 Wn. App. 423; 832 P.2d 109; 1992 Wash. App. LEXIS 292 (1992).