# Spittin' On A Cop? That's 35 Years **URL:** \ **Category:** Great Debates\ **Created:** [June 13, 2008, 9:19pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860 "2008-06-13T21:19:45Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 13, 2008, 9:19pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/1 "2008-06-13T21:19:45Z")
A [Dallas homeless man](http://www.nytimes.com/2008/05/16/us/16spit.html?_r=1&ref=health&oref=slogin) who spit at a police officer was recently sentenced to 35 years. Obviously, there’s more to the story. He was a repeat offender, and he is HIV-positive; he spit into the officer’s eyes and mouth and then taunted that he had given the officer AIDS. The problem I’m offering for debate is the finding that this in an assault with a deadly weapon. As the article points out: > [@](#): > > According to the Centers for Disease Control and Prevention, H.I.V. is primarily spread through sexual contact or the exchange of blood. Although there have been rare cases of transmission through severe bites, “contact with saliva, tears or sweat has never been shown to result in transmission of H.I.V.,” the agency reports. ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [June 13, 2008, 9:40pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/2 "2008-06-13T21:40:04Z")
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. Enjoy, Steven ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [June 13, 2008, 9:46pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/3 "2008-06-13T21:46:30Z")
The problem I have is that “deadly weapon” is a term of art, and in section 1.07 (a)(17) of the Texas penal code, it’s defined as: > [@](#): > > 1. “Deadly weapon” means: > > (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or > > (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. I see problems with that definition. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [June 13, 2008, 9:48pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/4 "2008-06-13T21:48:53Z")
I can’t believe he waived his right of appeal. ---
**Author:** ![GomiBoy](https://avatars.discourse-cdn.com/v4/letter/g/b2d939/32.png) [@GomiBoy](https://boards.straightdope.com/u/GomiBoy)\ **Post date:** [June 13, 2008, 10:10pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/5 "2008-06-13T22:10:47Z")
35 years of 3 squares a day and a roof over your head might not seem like such a bad deal after being homeless. Or you might have to be nuts as well, but the two aren’t exactly strange bedfellows (homelessness and mental illness) ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [June 13, 2008, 10:24pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/6 "2008-06-13T22:24:52Z")
Here’s an interesting article; it cites a Yale study that found 24 other cases in which a spitter was convicted for HIV exposure, including nine that got sentences even longer than the Dallas guy. [http://www.aidsmap.com/en/news/57E118E4-CC57-4C0E-A200-E7709A67AF1F.asp](http://www.aidsmap.com/en/news/57E118E4-CC57-4C0E-A200-E7709A67AF1F.asp) ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [June 13, 2008, 10:47pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/7 "2008-06-13T22:47:58Z")
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. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [June 13, 2008, 10:53pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/8 "2008-06-13T22:53:25Z")
I’m impressed it made it to trail. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 14, 2008, 2:35pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/9 "2008-06-14T14:35:59Z")
[QUOTE=Captain Amazing] The problem I have is that “deadly weapon” is a term of art, and in section 1.07 (a)(17) of the Texas penal code, it’s defined as: I see problems with that definition. [/QUOTE] 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.. ---
**Author:** ![Bill\_Door](https://avatars.discourse-cdn.com/v4/letter/b/50afbb/32.png) [@Bill\_Door](https://boards.straightdope.com/u/Bill_Door)\ **Post date:** [June 14, 2008, 2:48pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/10 "2008-06-14T14:48:53Z")
[QUOTE=jtgain] (snip)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.. [/QUOTE] 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.” ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [June 14, 2008, 3:01pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/11 "2008-06-14T15:01:29Z")
[QUOTE=magellan01] It was, a lethal danger, in fact. This make perfect sense. [/quote] It wasn’t a lethal danger, at least according to the CDC quote in the OP. > [@](#): > > Conversely, if a spitter did not have aids that would be en entirely different story. Kinda of like slapping a cop. 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. > [@jtgain](#): > > 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.. 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. ---
**Author:** ![Rhythmdvl](https://avatars.discourse-cdn.com/v4/letter/r/85f322/32.png) [@Rhythmdvl](https://boards.straightdope.com/u/Rhythmdvl)\ **Post date:** [June 14, 2008, 3:26pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/12 "2008-06-14T15:26:26Z")
[QUOTE=Bill Door] 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.” [/QUOTE] Tankity tank tank… (I love that joke) 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”? ---
**Author:** ![drachillix](https://avatars.discourse-cdn.com/v4/letter/d/48db29/32.png) [@drachillix](https://boards.straightdope.com/u/drachillix)\ **Post date:** [June 14, 2008, 3:27pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/13 "2008-06-14T15:27:10Z")
[QUOTE=Bill Door] 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.” [/QUOTE] If the guy thought it could be transmitted that way it would be very much like an unloaded gun. Trying to shoot and having it not go off would rise to ADW easily. If you shoot at someone with blanks but didnt know they were blanks, you are trying to kill them. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [June 14, 2008, 3:32pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/14 "2008-06-14T15:32:56Z")
[QUOTE=drachillix] If the guy thought it could be transmitted that way it would be very much like an unloaded gun. Trying to shoot and having it not go off would rise to ADW easily. [/quote] 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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 14, 2008, 3:40pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/15 "2008-06-14T15:40:24Z")
Hypo: Suppose you’re a particularly credulous person - someone who believes in voodoo. I make a voodoo doll of you, and threaten to stab it with a needle and then set it on fire unless you give me money. Crime? ---
**Author:** ![Rhythmdvl](https://avatars.discourse-cdn.com/v4/letter/r/85f322/32.png) [@Rhythmdvl](https://boards.straightdope.com/u/Rhythmdvl)\ **Post date:** [June 14, 2008, 4:14pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/16 "2008-06-14T16:14:18Z")
[QUOTE=Bricker] Hypo: Suppose you’re a particularly credulous person - someone who believes in voodoo. I make a voodoo doll of you, and threaten to stab it with a needle and then set it on fire unless you give me money. Crime? [/QUOTE] 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? ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [June 14, 2008, 5:16pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/17 "2008-06-14T17:16:38Z")
[QUOTE=Simplicio] 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. [/quote] 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. > [@](#): > > 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. 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. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [June 14, 2008, 8:54pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/18 "2008-06-14T20:54:50Z")
[QUOTE=Bricker] Hypo: Suppose you’re a particularly credulous person - someone who believes in voodoo. I make a voodoo doll of you, and threaten to stab it with a needle and then set it on fire unless you give me money. Crime? [/QUOTE] 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. ---
**Author:** ![Rhythmdvl](https://avatars.discourse-cdn.com/v4/letter/r/85f322/32.png) [@Rhythmdvl](https://boards.straightdope.com/u/Rhythmdvl)\ **Post date:** [June 14, 2008, 9:08pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/19 "2008-06-14T21:08:50Z")
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? ---
**Author:** ![drachillix](https://avatars.discourse-cdn.com/v4/letter/d/48db29/32.png) [@drachillix](https://boards.straightdope.com/u/drachillix)\ **Post date:** [June 14, 2008, 9:39pm UTC](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860/20 "2008-06-14T21:39:28Z")
[QUOTE=Captain Amazing] 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. [/QUOTE] Is a hammer deadly weapon? Is a syringe? Intent and method of use are very much a part of the crime, not just the tool. Plenty of people still to this day believe even touching bare skin on an HIV+ person is dangerous. The level of medical ignorance in the general population is astounding. [Next page](https://boards.straightdope.com/t/spittin-on-a-cop-thats-35-years/452860.md?page=2)