This would be a finding of fact, right? So it was twelve of the accused’s peers who decided this was assault with a deadly weapon. I guess a case could be made if it was appropriate for the DA to bring the charge, but the finding of fact seems the real messed up part. Maybe the PD’s office didn’t have good expert witnesses, or maybe the jury decided the mens rea of Assault with a Deadly Weapon was present(c.f. the testimony the accused had indicated he believed he was infecting the officer) and the actual ability of the actions to transmit HIV were given lower precedence. Pointing a gun you think is loaded at someone’s head and pulling the trigger sure sounds like attempted murder to me, even if the gun isn’t actually loaded.
I see no problem. He himself viewed the fact that his saliva contained the AIDS virus as a danger. It was, a lethal danger, in fact. This make perfect sense. Conversely, if a spitter did not have aids that would be en entirely different story. Kinda of like slapping a cop.
What problems? It covers in part (a) anything that is on it’s face a deadly weapon (gun, knife, sword, etc.) and in part (b) it covers things that aren’t designed to be deadly weapons (chainsaws, pipe wrenches, baseball bats) but one that the accused uses in a manner that makes it a deadly weapon. Looks like a good law to me.
Plus, I agree with some other posters here. The fact that the intent was there to infect the officer with HIV makes it rise to this level, IMHO…
But the saliva could not transmit the HIV virus. If someone made a voodoo doll of the officer and stuck pins in it, would you call that assault with a deadly weapon? It’s not the same as an unloaded gun, it’s pointing your finger at someone and saying “Bang! You’re dead.”
It wasn’t a lethal danger, at least according to the CDC quote in the OP.
What if the homeless man just thought he had HIV, but was mistaken? That would be more or less equivalent, right? He would still think he was endangering the cop, and so still think he was assaulting him with a “deadly weapon”, even though again, there would be no actual risk of harm coming to the cop.
It doesn’t appear to raise it to the level of the definition of a “lethal weapon” as given in Captain Amazing quote of Texas Law.
I also love the nature of these surreal areas of law, and you’re right, there’s something clearly wrong with convicting someone for voodoo.
What would happen if someone went to their local chemist and bought poison? What if the pharmacist suspected nefarious intents and secretly swapped it out for sugar? What if the pharmacist accidentally swapped it for sugar? Should there be a separate law “assault with the belief of a deadly weapon”?
It’s a rather tough call to convict someone on what they believe will happen. After all, the fact that saliva alone is not capable of transmitting HIV is not exactly obscure, its entirely possible the homeless guy knew he couldn’t really transmit that way and was just trying to scare the cop. Of course, that might not be the case, but how the hell do you prove what someone was thinking.
Also, again from Captain Amazing’s post, whether or not it makes him guilty of a lesser crime, it doesn’t appear that assault with something incapable of doing harm qualifies as “assault with a deadly weapon” according to Texas state law, regardless of what the person in question thought.
Assuming away jurisdictional and other hypothetical-twisting inanities, I’d say simple assault, at least as the snippet of law posted to the thread (i.e., it shouldn’t rise to that level on a plain reading of the text). I would imagine, though, that over time enough similar cases have arisen (e.g., unloaded gun, baking soda poison) that either a different statute or case law accounts for some sort of aggravated status—especially if subjective beliefs of the parties are written or incorporated.
Another prosecutorial avenue is extortion—if I call you up at work and say I’ve kidnapped your family (but I haven’t), and demand a ransom, I’m still in trouble.
Adding color to the question, would it make a difference if the perpetrator did or did not share the belief system?
You can’t. All you can do is submit the defendants statements (and actions) as testimony in court, and let the jury decide if the defendant was serious or not.
Only if the jury believed that the defendant believed he could do it that way…
It’s not unreasonable (IMO) for a lay-person to think that there is a non-zero chance of transmitting a disease by saliva.
If the defendant kills a person with a gun, and claimed that they thought the gun was unloaded (and the jury believes the defendant), then they would be willing to convict of Manslaughter or some such, but not first degree murder.
If the defendant attacked the officer with a Mentos tablet, the jury might be easilly persuaded that the defendant believed that no actual harm would follow.
It would quite probably be a crime, but would it be aggravated assault? Doesn’t factual impossibility come into play here? If you don’t have a deadly weapon, you can’t use or exhibit it during the commission of the assult, and therefore, the spitting is just simple assault.
Something I either just remembered or just made up–in some jurisdictions, isn’t part of the fact finding procedure (possibly statutorily or in jury instructions) considering what a reasonable person would think in similar situations? That is, a reasonable person wouldn’t think a voodoo doll could kill, so it wouldn’t raise to such a level. Anyone recall something similar?