Leonard Link

Court Martial Appeal Raises Questions About HIV Liability

A military appeals court ruling rejecting an attempt by an HIV-positive male soldier to set aside his guilty plea to charges of aggravated assault for engaging in sex with two women without disclosing his HIV status (and, in the case of one of them, without using a condom) provided the occasion for an interesting debate about what standard to apply in such cases in light of developing knowledge about HIV transmission. The five judge panel of the U.S. Court of Appeals for the Armed Forces was unanimous in its May 6 ruling in United States v. Dacus, 2008 Westlaw 1990659, but two of the judges joined in a concurring opinion suggesting some reconsideration should be in order.

Army Staff Sergeant Brandon M. Dacus, a married man, learned that he was HIV-positive in 1996, and received the usual counseling about the need for him to disclose his status to sexual partners and use protection when having sex. According to the medical testimony, he is one of those rare individuals whose immune system suppresses the virus to an undetectable level without any medication. As a result, he is totally asymptomatic and is unlikely ever to develop AIDS.

Military prosecutors charged him with two counts of attempted murder, arising from his adulterous sexual encounters with two women. He used a condom with the first woman, and claimed that he barely penetrated her. With the second, however, he did not use a condom, and had an affair that included at least eleven occasions of sexual intercourse. He didn’t deny the factual allegations, and in the face of drastic penalties if convicted of attempted murder, he agreed to plead guilty to the lesser charges of aggravated assault and adultery, both in violation of the Uniform Code of Military Justice (UCMJ).

After his guilty plea, he participated in a sentencing hearing, at which he presented a medical expert, Captain Mark Wallace, a military doctor, who had examined him and reviewed his medical records. Dr. Wallace testified that it was highly unlikely that Dacus could have infected either woman due to his low viral load.

"Dr. Wallace explained that the possibility of transmitting HIV from one person to another is a function of the viral load of the infected individual," wrote Judge Charles Erdmann for the court. "He testified that it was ‘unquestionably’ possible that Dacus could transmit the virus but that the likelihood was ‘extremely low’ due to his low viral load. Dr. Wallace also testified that using a condom would reduce the risk of transmitting the virus even further." He did testify that there were documented cases of low viral load individuals who had sexually transmitted the virus to others, but reiterated that the chances of it happening were "very, very unlikely."

When pushed to quantify his testimony, Wallace said the probability that Dacus could transmit HIV through unprotected sex with a woman was about 1 in 10,000, and that when he used a condom it was 1 in 50,000.

The sentence imposed at court martial is not mentioned in the opinion. Dacus took his case to the Army Court of Appeals, which refused to vacate his guilty plea, and then he appealed further to the Court of Military Appeals.

Dacus’s appeal sought to set aside his guilty plea on the ground that it was inconsistent with the evidence introduced at the sentencing hearing. He pled guilty to aggravated assault. Under military law, this required establishing that "the natural and probable cause of exposing" his sexual partner "to the HIV virus is death or grievous bodily harm," or, put another way, that his conduct was "likely to produce death or grievous bodily harm." Dacus argued that Wallace’s testimony showed that he had not presented such a risk to his female sex partners.

Applying this standard in prior HIV cases, military courts had taken into account both the probability that the virus could be transmitted and the harm that would be caused if it was transmitted. In this case, Judge Erdmann’s opinion focused on whether the testimony about the very slim risk of transmission meant that the statutory standard had not been met.

Erdmann first rejected Dacus’s argument that because of his own low viral load, his sexual partners would not have been seriously harmed had they actually been infected by him. This was not supported by the medical evidence, as Dr. Wallace testified that Dacus’s low viral load was not due to him being infected by a weak strain of the virus, but rather by the extraordinary ability of his immune system to suppress viral replication. Wallace testified that if the women had become infected, unless they also possessed that rare immune system capacity, they would follow the normal course of HIV infection. "So, if a person with a low viral load has infected somebody else," Wallace testified, "anything could happen. They could progress slowly, or very, very rapidly."

However, the other element of risk raised a more serious issue. In past cases, military courts had come to the view that the statutory standard was met if the risk of HIV infection is "more than merely a fanciful, speculative, or remote possibility." "The testimony in the record established that although the risk of transmitting the virus was low and therefore arguably ‘remote,’ the risk was certainly more than fanciful or speculative," wrote Erdmann. After all, Dr. Wallace had testified that "there is no question, he could have transmitted HIV," and Wallace had testified about instances where people with low viral loads had transmitted the virus through intercourse.

This was enough to satisfy the court that Dacus’s guilty plea should not be set aside, but two members of the court, Judges Margaret A. Ryan and James E. Baker, suggested that the issue of risk should be revisited in "an appropriate case."

Writing for herself and Judge Baker, Judge Ryan observed that "the majority succinctly and correctly sums up the extant law," but "this test gives me pause. Common sense seems to dictate that an event is not ‘likely’ for purposes of Article 128(b)(1), UCMJ, regardless of the harm involved, if there is only a 1 in 50,000 chance of that event occurring."

After pointing out that the military precedents do not state that "because the magnitude of the harm from AIDS is great, the risk of harm does not matter," she pointed out that the statutory standard is whether the conduct is "likely to produce death or grievous bodily harm." "Where the floor and ceiling of statistical sufficiency are I do not claim to know," she continued. "But at a minimum I have grave doubts that the statutory element should be deemed satisfied where the statistical probability of the consequence of an act is so low as to approach being no ‘more than merely a fanciful, speculative, or remote possibility.’"

If this was not an appeal from a guilty plea, but rather an appeal from a conviction at trial, Ryan and Baker would be inclined to reconsider whether somebody like Dacus could be convicted of aggravate assault, even where they had not used a condom and had failed to disclose their HIV status.

Ryan and Baker are reflecting an issue that deserves wider discussion in the civilian sphere as well, for many states now apply their criminal law to prosecute HIV-positive individuals who have sex without disclosing their serostatus to their partner. The level of severity of the criminal law is supposed to reflect the magnitude of risk that a defendant presents to the uninfected party, yet the occasional appellate decision that comes to light in such cases suggests that courts have been slow to adapt their rulings to the unfolding evidence about the impact of contemporary medical treatments on reducing viral load to undetectable levels and, consequently, on the actual risk of transmission.

"The Fall" - Cinema Fantastique...

A feature story in The New York Times Arts & Leisure section this morning (May 11) about "The Fall," a new independent film by Tarsem Singh Dhandwar, was absolutely tantalizing, and so I made time to see it late this afternoon.  It is what I would call "cinema fantastique" - that is, a work of rich imagination, full of real special effects (as the article emphasizes, no CGI), real stunt people doing real stunts of great audacity, filmed in a large variety of extraordinary locations, weaving a fantastic tale, and very well acted by all the relatively unknown leads.

A real standout for me was Lee Pace, playing the male lead role of Roy, a movie stuntman hospitalized as a result of an accident while filming involving a fall from a bridge.  He lies in the hospital, paralyzed from the waist down, pretty much giving up hope of recovering (it's the days of silent film, early 20th century), and actually suicidal at contemplating a life in a wheel-chair.  Actor Pace is a very handsome man with a very expressive face and a warm, charming voice.  Another young hospital patient, played by Catinca Untaru (an incredibly gift little kid), wanders into his room, and he devises a plan to enlist her in his suicide by persuading her to fetch him a bottle of morphine pills from the dispensary.  To do this, he begins to tell her an engrossing story, in which she imagines him and her as characters - indeed, as father and daughter -- and through the story he "seduces" her into being his accomplice.  I won't say more along those lines - don't want to do a plot spoiler here.

But I will say that the depiction of Roy's imaginary story is vividly enacted, with glamorous sets, splendid costumes, and wonderful music.  (The original music of Krishna Levy makes up some of the score, but also effective use is made at several points of the Allegretto (second movement) from Beethoven's Seventh Symphony.) 

As is very much the trend in recent times, the story is enacted without much explicit explanation or back story, so the audience is thrown into the middle of events and doesn't figure everything out about the underlying plot until the end of the film.  Happily, however, Tarsem does not go in for some of the tricks I detest - that is, playing with time or fooling with the audience.   What is most interesting, of course, is that in the grand tradition of "The Wizard of Oz," the characters in Roy's story are enacted by real people in his life, some from the staff of the hospital, others from his world as a film stuntman.  (Would it be giving away too much to say that the evil Prince Odious, the villain of the story, is played by the same actor who is the director of Roy's film?  Remember in "The Wizard of Oz" when the Wizard turned out to be the peddler of patent medicine in "real life"?)

This little indy film was, according to The Times article, entirely funded by its director, Tarsem, who could not get any studio or major film investor interested.  Nobody who read the script could figure out whether it was comedy or tragedy, or could figure out a particular category in which to market it.  In other words, this is a singular film.  It has comical moments, tragic moments, moments of great emotion, moments of action-adventure, but fits in no convenient niche.  Tarsem spent years looking for a distributor.  He shot it on a shoestring, but it doesn't look like it.  (I saw only one or two editing glitches.)  Spike Jonze, listed as one of the "presenters" of the film together with David Fincher, speculated that had a major studio shot this script it would have been an $80 million movie.  Of course, Tarsem had very little, but as a maker of commercials and music videos, had had access to the technology to do things on the cheap, he enlisted unknown actors who I presume worked at the minimum, and he didn't have to construct any sets because he was able to use contacts to get the use of an old Victorian-era abandoned hospital in South Africa for the "real life" scenes, and all the fantasy scenes were shot out of doors (with minor brief exceptions) in existing locations that he found through his commercial work.

My bottom line - This is, as I said at the outset, cinema fantastique - a case of a determined, imaginative film-makers using his own resources to bring to the screen his own vision of a story, and doing it with real style.  Is it a "great film"?  No, more akin to a grand entertainment reflecting one man's imagination, a multicultural trip (you'll get that point when you see the film), and, in it's final scenes, extraordinarily moving in showing the love-bond that grows up between Roy and the little girl.

At present, the film plays in Manhattan in only two theaters - one of the smaller boxes at the 25-screen AMC theater in Times Square, and the Sunrise Cinema out on East Houston Street, a favorite spot for independent films.  It deserves to be playing many more places.  Perhaps there is a bit too much violence to take small children (nightmares are likely), but older children and everybody else would find this a wonderful experience.  And I hope it surfaces on DVD some day!!!

[After writing this, I went back to the Friday edition of The Times to see the regular review of the film.  I disagree with it profoundly.  It is a brief dismissive piece, almost as if to say that the critic resented being sent to review a low budget independent film.  The critic claimed it was a bore.  I was totally engaged, and I sat in a nearly full matinee audience that also seemed to be totally engaged.  Sure, there were signs of low budget, like a few editing blips I noted, but I thought all-in-all that it was an enjoyable experience.  Maybe The Times shouldn't send resentful stringers to review films....]

An Old Multicultural Stew - Celeste Sirene's Gol o Bolbol

While browsing at Academy Records & CDs yesterday evening before the Peoples Symphony Concert (a favorite passing-time activity), I came across a reviewer copy of a recent Cavalli Records release titled "Gol o Bolbol: Alte Musik aus Persien und Europa."  A glance at the contents list on the back looked interesting: a mix of Baroque era music from Italy, Germany and France, interspersed with exotically titled things that threatened to be of Persian origin.  With little other explanation from the still-sealed package, it looked exotic enough to pick up.  (After all, a large portion of the stock at Academy is priced at $3.99 or below, so why not experiment?)  When I got it home and opened it up, I saw that this would be an interesting multicultural stew all right, as the performers included a German early music ensemble, called Celeste Sirene, supplemented with two musicians of Persian/Iranian descent playing native instruments.

And so it proves.  This is a wonderfully entertaining disc, is Cavalli Records CCD 336.  The Bamberg-based label has turned up other interesting, off-beat recordings with a "classical" connection, so that should be no surprise.  The European baroque pieces sound quite wonderful with Persian plucked instruments supplementing the lutes and baroque percussion effects, and tenor Niels Badenhop, responsible for the singing, is expressive in a rough-hewn way that works well in this context.  The overall effect is of a friendly cultural confrontation, with each side emerging richer for the effort.  This may be hard to find, but it is certainly worth the effort. 

Cavalli records website: www.cavalli-records.de

Ensemble Celeste Sirene website: www.celestesirene.de

Mihaela Ursuleasa at Peoples Symphony Concerts New York

Peoples Symphony Concerts ended their 2007-2008 season tonight with a piano recital by Mihaela Ursuleasa, a young Romanian pianist, at Washington Irving High School in Manhattan.  The program did not specify this as a New York City debut for the pianist, but the biography on the printed program did not mention any prior performances here.  Ms. Ursuleasa, born in Romania in 1978, now resides in Vienna.  She won the Clara Haskil Piano Competition as a teenager, and has appeared with many celebrated conductors and orchestras in Europe.

On this occasion, she was performing the New York premiere of a new piece by NYC-based composer Aaron Jay Kernis, "Ballad(e) out of the Blues [Superstar Etude #3]," which had received its world premiere just a week ago at Ms. Ursuleasa's hands at a music festival in Minneapolis.  The composer appeared on stage at the beginning of the program to introduce his work, which he described as a homage to Gershwin, written in memory of Kernis's father, and commissioned for performance by Ms. Ursuleasa.  It is hard to know quite what to say about it at first hearing.  The composer suggested an intention to write a super-virtuoso etude, and he certainly did that, but I was uncertain that it really hung together as a coherent musical statement.  It had the feeling to me of a ten minute cadenza incorporating many references to blues and jazz stylings mixed with traditional romantic piano figurations, with smidgens of tune popping through the figurations from time to time.  I suspect this is the kind of piece that begins to make more sense after repeated hearings.  Ms. Ursuleasa played it with great vigor, but I suspect if she keeps playing it she will find more music in it and less noise as time goes on.

The first half of the program concluded with the 7 Fantasies, Op. 116, of Johannes Brahms, a sequence of short pieces labelled Capriccio or Intermezzo in alternation.  These are pieces that require much shaping, imagination and subtlety from the pianist, and I thought those qualities were not all present to the degree needed in this performance.  There was a sameness to the playing, and after a while I found myself tuning out.

Ms. Ursuleasa seemed much more attuned to Rachmaninoff, whose Op. 39 Etudes-tableaux made up the second half of the program.  Indeed, this was a stunning performance, with all the contrasts in color and dynamics and the insightful shaping of the music that I found lacking in the Brahms.  I would love to have a recording of these pieces by this pianist!

For an encore, she performed a toccata by Paul Constantinescu, a Romanian composer, and it was truly stunning.  Constantinescu's piece, very much in the tradition of stand-alone toccatas for piano by Prokofiev and Schumann (the most famous ones), incorporates hints of Romanian folk music in its relentless forward motion.  Hearing the excellent performance, I thought it unfortunate that Ms. Ursuleasa had programmed the Brahms rather than some Romanian piano music in her first half.  How often do we hear Romanian pianists?  It would be great to hear some Romanian music when one comes to us - we can hear Brahms all the time.  Just a thought for her future programming.

All in all, it was a terrific season for Peoples Symphony Concerts.  Although I couldn't make it to all the programs, the ones I heard were mostly quite brilliant, and worth the visit.  I also had good reports from my faculty assistant, who went to some of the programs I could not attend, especially about the Bach performance by Simone Dinnerstein at Town Hall.   Looking forward to next year.  These three series are one of the best bargains in NYC for those who love solo and chamber music.  Check out the website (www.pscny.org) for information about next season, which should be posted in a few months.

Encores at City Center: No, No, Nanette

The grand finale of the 2007-2008 season at New York City Center Encores! was "No, No, Nanette," a fluffy 1920 musical comedy with music by Vincent Youmans, book by Otto Harbach and Frank Mandel, lyrics by Irving Caesar and Otto Harbach.  The show was revived on Broadway in the early 1970s in a revision of the book by Burt Shevelove, and it was the 1970s revision, slightly revised for concert performance by David Ives, that Encores! has been presenting this weekend.

This is not a heavy-weight show.  Indeed, in the tradition of Broadway musicals prior to Showboat and Oklahoma, it is a thinly-plotted, inconsequential thing that is an excuse for stringing together songs and dances and production numbers, which it does very well.  The score generated two big hits, "Tea for Two" and "I Want to Be Happy."  Apart from those, the music is snappy without being particularly memorable, although there are some moving moments, especially in the "Where Has My Hubby Gone" Blues, sung with appropriate dusky insouciance by Beth Leavel in the role of Lucille. 

I thought this was, as usual with Encores!, brilliantly cast.  Rosie O'Donnell did a non-singing star turn as the bossy housemaid, Pauline, stealing much of the attention whenever she was on stage.  (OK, Rosie fans, she did sing along a bit toward the end, but the role is a speaking part without any songs specifically written for the character.)  In the singing leads, in addition to Ms. Leavel, there were Sandy Duncan as a perky Sue, Charles Kimbrough as a suitably befuddled Jimmy, Michael Berresse as a sexy Billy (with the big dance solos and the suave manner), Shonn Wiley as the rather straight-laced Tom, and Mara Davi as Nanette, overflowing with enthusiasm.  The three women whose unanticipated (and unwelcome) presence the show revolves around were stunningly portrayed by Angel Reda, Jennifer Cody, and Nancy Anderson.

And, Rob Fisher, the founding Encores! musical director who stepped down from that role a few years ago, returned to conduct the last show of the 15th season, and did it in fine style with a wonderful full pit orchestra, anchored by the twin pianos of Joseph Thalken and Todd Ellison. 

This was a wildly entertaining time, despite the inevitable shortcomings of the show, because of the great enthusiasm and talent displayed across the board.  Special mention should be made of Randy Skinner's choreography, which was involving and energetic, and the fine costumes -- which the post-show talk revealed included lots of stuff borrowed from other productions of other similar-period shows from around the country, thanks to the many connections of Gregg Barnes.  Walter Bobbie's direction had the cast moving around with confidence.  One thing I noted: due to the short rehearsal periods for these Encores! presentations, the cast generally does not memorize the show, but performs from black loose-leaf books they carry around with them.  Although the notebooks were in evidence this time, they were also notably absent much of the time.  Partly, I'm sure, this is because there was so much dancing, making it impossible to carry them, but also it seems like most of the cast did memorize most of their parts, making this presentation even less of a concert performance and more of a staged performance than usual.

Encores! is presenting Damn Yankees this summer.  Now that there is once again a major league team in Washington, D.C., that show takes on new "relevance."  (Actually, the presence of the Devil in Washington, D.C., may have more to do with the relevance than the rebirth of major league baseball in that city....)  It will certainly be worth seeing.