Atlanta gay man
accused of deliberately spreading HIV

Garry Wayne Carriker was a fourth-year medical student with a charming style that he worked to his advantage around Atlanta's bustling gay scene. But just months after he would have graduated from Emory University Medical School, Carriker's career is on hold as he sits in jail, awaiting trial on sex-crime charges that have put Atlanta's gay community on edge.

His crime? Police say the 26-year-old knew he was HIV-positive but went ahead with unprotected consensual sex with another man without warning him. And then, when Carriker was released on bond in March, he was twice arrested on similar charges in a nearby county.

Carriker's case is one of the first in Georgia prosecuted on charges of knowingly transmitting HIV through consensual sex. It brings the state into the vortex of an ongoing legal debate that pits a growing public health crisis against the bounds of privacy. Prosecutors have dusted off a rarely used Georgia law to charge Carriker with felony reckless misconduct, which could keep him in prison for 10 years.

"It's like shooting bullets into the crowd," said Atlanta attorney Adam Jaffe, who is arguing a civil lawsuit against Carriker. "Eventually someone's going to get killed."

Some activists argue that criminalizing HIV discourages people at risk from being tested and cripples prevention efforts. "From a public health perspective, the most important thing is that both sexual partners, not just the HIV-positive one, take responsibility for preventing infection," said Joel Ginsberg, interim director of the San Francisco-based Gay and Lesbian Medical Association. "Criminal prosecution could undermine public health if it discourages testing."

Carriker had been dating John Withrow for five months when he revealed to him in April 2004 that he was HIV-positive, according to incident reports. Citing a little-known statute that makes it a felony to not disclose one's HIV status, a distraught Withrow was turned down by several reluctant attorneys before prosecutors in tightly knit suburban Fayette County, where Withrow lives, decided to press charges.

"The reason I came forward to file a complaint was to stop him from victimizing someone else," said Withrow, who said he has not yet tested positive for the virus.

Carriker posted bond, but since then two other men, both in Atlanta's Fulton County, have claimed Carriker had unprotected sex with them and failed to disclose his HIV status. Superior court judge Johnnie Caldwell Jr. revoked Carriker's $5,600 bond, and he now faces three counts of felony reckless conduct. Prosecutors must now prove that Carriker knew he was HIV-positive during the alleged relationships and did not warn his partners he was infected.

Carriker, a 2001 graduate of the U.S. Air Force Academy, could not be reached for comment. His attorney in the Fayette charges, George Sparrow, did not return repeated telephone calls over two weeks. Clay Collins, who is representing Carriker in the Fulton cases, would not comment on the case, aside from saying it is "on track" and could be tried in September.

Carriker's arrest sent a jolt through Atlanta's vibrant gay community. The city's Midtown section, with many gay clubs, is where two of the alleged victims say they met Carriker. One concerned activist launched a Web site devoted to the case that, until recently, posted Carriker's photo, listed the clubs he frequented, and urged visitors to get tested if they were involved with him.

Withrow's attorneys say the case is a reminder that gay men who believe their sexual partners knowingly exposed them to the virus have legal recourse. "They don't want to go to police and tell them they had unprotected sex," said Tom Nagel, one of Withrow's attorneys. "I'm sure it's happened many times before, but people aren't comfortable going into a police department telling a bunch of big burly guys with guns."

Nagel turned to a rarely used statute in Georgia, one of 28 states with specific laws that make it a crime for HIV-positive people to purposefully expose others to the disease, according to the American Civil Liberties Union. Between 1986 and 2001 there were only 316 criminal HIV prosecutions in the United States, said Zita Lazzarini, who directs the health law division at the University of Connecticut's School of Medicine. In contrast, tens of thousands of sexual assault cases are filed every year.

Lazzarini and two other scientists pored over HIV data for four years to try to link legislation criminalizing HIV exposure to a decrease in incidents. The result: "It is hard to say that these random prosecutions, which happen somewhat rarely, are going to change what people do around the country or in a particular state," she said. The culprits, she said, "don't realize it's a law, they don't think they'll get caught, and they don't think they'll get punished."

What irks some gay activists is the tacit--and perhaps deadly--assumption that Carriker's case brings to light. Many in the gay community, Ginsberg said, assume that if one partner doesn't ask if the other is HIV-positive, then he is willing to run the risk of infection.

HIV apathy is no news to national gay groups, some of which have aggressively worked to compel at-risk populations to be proactive in protecting themselves. The San Francisco AIDS Foundation has run a series of ads targeting gays who assume their partners aren't infected just because they aren't volunteering their HIV status; the ads ask, "How do you know what you know?"

Ginsberg said this kind of attitude makes both parties culpable. "It's fuzzier than simply walking into a crowded area and shooting a gun," he said. "The infected should, of course, be responsible, but the partner shouldn't be infallible either."

Others say forcibly disclosing one's HIV status is a privacy breach. And the legislation's one-size-fits-all nature, which in many states makes no distinction between protected and unprotected sex, allows some prosecutors to abuse the statute's intent, said Lazzarini, who coauthored the book HIV and the Law.

To Al Dixon, the Fayette assistant district attorney who is trying the Carriker case, it's a clear-cut moral issue. "If you're going to have a sexual relationship with someone, they have the right to know whether you have HIV," he said. "That's the only privacy issue I can think of." (AP)