Photo by Carmelita Cruz

David Plunkett, an HIV positive man sentenced to 10 years for “aggravated assault with a dangerous instrument” for allegedly biting a police officer in 2006, will be allowed to return home to his family and friends after serving over five years at New York’s maximum security Ossining Prison, better known as Sing Sing. He has wrongfully remained incarcerated for unspecified reasons for nearly a month since the New York Court of Appeals unanimously overturned the aggravated assault sentence, stating that, as it found in 1999, a naturally occurring substance in a person’s body cannot be classified as a dangerous instrument.

“The Court of Appeals correctly rejected the conviction of David Plunkett because science long ago established that the risk of transmission of HIV by biting is so remote as to be virtually impossible,” said ACT UP/NY member Eric Sawyer, who made a five hour trek upstate yesterday from New York City to the Old Herkimer County Courthouse, along with other members of Housing Works, ACT UP and Queerocracy, to demand compliance with the ruling and Plunkett’s immediate release. “It would be an outrage for this man to serve even one day more in prison for a crime he could not have committed based on the facts alleged.”

Acting District Attorney Jeffrey Carpenter called the hearing yesterday, apparently to re-sentence Plunkett in light of the ruling, instead of releasing him with time served, which more than covered the sentence for his lesser conviction of second-degree assault. “[The D.A.] is apparently continuing to seek punishment of David Plunkett by attempting to circumvent the Court of Appeals unanimous decision,” said James Cook, a retired attorney. The band of activists stood on the steps of the court brandishing signs and debriefing local press and residents to ensure Carpenter accomplished no such thing. “Most had not heard about the case so it was nice to alert them to what was happening in their community,” says Housing Works’ Carmelita Cruz.

The nine activists then filed into the courtroom, small enough that they packed the seats. “The police were very nervous that there would be some sort of action from us in the Courtroom,” say Cruz. There was not. There was also no request for additional time by Carpenter, who had previously and erroneously contended that Plunkett had risked the police officer’s health and knew it, and had stated that he was in favor of New York enacting laws that criminalize potential HIV exposure. And the judge then announced Plunkett was a free man and would be released today or Monday.

While New York State does not have any HIV criminalization laws, thirty-six states do have HIV-specific criminal statutes and all thirty-six used have used them to arrest and/or prosecute HIV positive people, charging them with criminal transmission of HIV, assault, manslaughter or even murder, depending on the state. “People are being imprisoned for decades, and in many cases have to register as sex offenders, as a consequence of exaggerated fears about HIV. Most of these cases involve consensual sex or conduct such as spitting and biting,” states a report by HIV Law and Policy. “In New York City advocates would have asked questions from the beginning and this wouldn’t have happened, but up there it’s like a different world,” said Housing Works’ Shirlene Cooper. “As an HIV positive person myself, I really felt for him. I couldn’t believe you could do that to someone.”

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