LESBIAN/GAY LAW NOTES
ISSN 8755-9021     March 1997

Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St.,
NY, NY 10013, 212-431-2156, fax 431-1804; e-mail: asleonard@aol.com
or aleonard@nyls.edu

Contributing Writers: Otis Damslet, Esq., New York; Steven Kolodny,
Esq., New York; Todd V. Lamb, Esq., New York; K. Jacob Ruppert,
Esq., New York; Dirk Williams, Esq., Boston; Charles Wertheimer, NY
Law School Student.

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10003. 212-353-9118; e-mail: le-gal@interport.net

LeGaL Homepage: http://www.interport.net:80/~le-gal
Law Notes on Internet: http://www.qrd.org/qrd/www/usa/legal/lgln
(C) 1997 by Lesbian & Gay Law Association of Greater New York                        
$45/yr by subscription; Foreign Rate US$60                 

NINTH CIRCUIT PANEL SPLIT ON MILITARY POLICY;
PHILIPS DISCHARGE SUSTAINED OVER STRONG DISSENT

A sharply divided panel of the U.S. Court of Appeals for the 9th
Circuit upheld the discharge of Navy Petty Officer Mark A. Philips
for homosexual conduct. __Philips v. Perry__, 1997 WL 61211 (Feb.
14).

Writing for the court, Judge Pamela Ann Rymer found that the 9th
Circuit had previously held that the military could discharge
individuals for engaging in homosexual conduct in __Beller v.
Mittendorf__, 632 F.2d 788 (1980), cert. denied, 452 U.S. 905
(1981), and no intervening developments justified abandoning that
holding.  In a concurring opinion of more than 1700 words that
never once mentions homosexuality, Judge John T. Noonan argued that
appropriate deference to professional military judgment deprived
the court of authority to evaluate the policy.  Dissenting, Judge
Betty B. Fletcher contended that there was no rational basis for
the military to treat off-duty homosexual conduct with civilians
any differently from off-duty heterosexual conduct, which does not
lead to discharge, and that Philips' discharge violates equal
protection of the laws.  Fletcher's opinion cites and relies on
__Romer v. Evans__, 116 S.Ct. 1620 (1997).

Philips served four years with an excellent record.  In November
1992, in the excitement of Bill Clinton's election and his repeated
promise to end the anti-gay service ban, Philips told his
divisional officer that he was gay and also revealed that he had
engaged in homosexual conduct off-duty and off-base with civilian
personnel.  The Navy moved to discharge him under existing
regulations, but suspended those proceedings and reprocessed him
under the new "don't ask, don't tell" policy.  

The district court suspended his discharge pending the 9th
Circuit's resolution of __Meinhold v. U.S. Dept. of Defense__, 34
F.3d 1469 (9th Cir. 1994), in which the court barred the discharge
of an officer solely on the basis of his statement that he was gay. 
However, in __Meinhold__, the court reiterated earlier holdings
that the Defense Department could discharge personnel who engaged
in homosexual conduct.  Relying on this, the __Philips__ district
court upheld the discharge.  Matt Coles of the ACLU argued the
appeal before the 9th Circuit almost a year ago, contending that
the 5th amendment requirement that the federal government accord
equal protection of the laws was violated by discharging homosexual
service members but not heterosexual service members for engaging
in the same conduct: off-duty, off-base anal or oral sex with
consenting adult civilians.

Writing for the court, Rymer found that the least demanding
standard of judicial review applied to this case, noting the heavy
burden placed on a challenger in "rational basis" equal protection
cases and the deference owed to military judgement.  Rymer
recounted the history of 9th Circuit rulings in gay military cases,
from __Beller__ through __Meinhold__, finding that "the district
court correctly concluded that this court has consistently held
that regulations of the nature at issue here, directed to
homosexual acts rather than merely to status or orientation, are
constitutional."

Rymer refuted every attempt by Philips to distinguish the circuit's
prior holdings, or to argue that subsequent Supreme Court decisions
have overruled or fatally undermined their rationales.  In
particular, pointing to __Palmore v. Sidoti__, 466 U.S. 429 (1984),
and __Cleburne v. Cleburne Living Center__, 473 U.S. 432 (1985),
cases relied upon in __Romer v. Evans__ for the proposition that
bare animus against an unpopular group may not justify
discrimination, Rymer contended that those cases were
distinguishable as involving "status restrictions, not conduct
restrictions.  Each was therefore a case where the government
distinction had no purpose other than raw prejudice."  Rymer
observed that in __Beller__ the court had found that there were
"multiple grounds" for the Navy's policy to discharge members for
engaging in homosexual conduct; the policy did not rely solely on
the presumed dislike for homosexuals by heterosexuals. Rymer also
rejected Philips' contention that relying on his statements to
Naval personnel violated his 1st Amendment free speech rights,
finding that he was discharged because he had engaged in homosexual
acts, not because he had talked about it.

The concurring opinion by Judge Noonan peculiarly avoids discussing
the merits of the case, focusing solely on deference to military
judgment.  Observing that the Constitution expressly gives Congress
power "to make rules for the government and regulation of the land
and naval forces" (art. 1, sec. 8), and expressly designates the
President as commander-in-chief of the military forces (art. 2,
sec. 2), Noonan argued in effect that military regulations adopted
by Congress and approved by the President are virtually exempt from
judicial review:  "In theory it might be urged that the powers
conferred on Congress and the President by these clauses are not in
kind different from the power conferred on Congress to regulate
commerce among the states or the power conferred on the President
to execute the laws of the United States, neither of which powers
creates a domain distinctly different as far as the federal courts
are concerned.  Such has not been the way the government of the
military has been understood.  The constitutional clauses have been
understood by the courts themselves to set off a sphere of American
life where the courts must tread lightly.

"The rationale for this special deference is such that as a matter
of logic the deference might be shown only as to combat decisions
and not extended to the array of bureaucratic determinations that
the vast military establishment must make, or the deference could
only be required in war but not in peace.  Fine lines of this sort,
however, have not been drawn by the courts.  In peace as in war, in
the Pentagon as on the battlefield, the military services are
treated as a universe distinct from the civilian world ruled by the
ordinary decisions of courts."

Noonan cited several cases in which the Supreme Court upheld
military regulations restrictive of constitutional rights for the
proposition that courts are rarely, if ever, justified in striking
down military regulations.  And he pointed out that military
regulation of sexual conduct of all kinds is significantly
different from regulations in civilian life, and accepted as valid
due to special needs of the military environment.  His concluding
paragraph seemed to indicate that his concurrence with the court's
judgment was based solely on deference.

Judge Fletcher's dissent rejected the arguments of both Judge Rymer
and Judge Noonan.  Fletcher asserted that "don't ask, don't tell"
"is not directed to prohibiting public homosexual acts or sexual
misconduct by gay men and lesbians," which she apparently believes
to be the only legitimate goals of military regulation on this
subject. "However, a simple statement that one is gay, and honest
answers to questions about one's sexual activity, can mandate
discharge under the policy."  

Pointing out that "everyone agrees that the current policy treats
homosexual service members and heterosexual service members
differently," Fletcher argues that the relevant question is whether
this different treatment can be justified, and rejects Rymer's
logic: "The majority, with circular logic, implicitly concludes
only that `homosexual conduct' is prohibited in order to prohibit
`homosexual conduct.'"  As to the main articulated justification of
the policy, preserving unit cohesion, Fletcher concludes that "the
current policy simply does not further this interest in a rational
and reasonably related way.  There is no reason to believe that
engaging in private, consensual, off-base sexual activity with a
member of the same sex somehow makes one a worse soldier than
engaging in the same conduct with a member of the opposite sex. .
. Indeed, government witnesses testified that gay soldiers are as
effective as heterosexual soldiers.  The government has
acknowledged that gay and lesbian service members are no less able
to perform their duties.  Thus, `unit cohesion' is not harmed by
gay service members' ability to contribute to their unit."  

The remainder of her opinion, continuing in a similar vein,
systematically points out the illogic of the government's
arguments, and concludes that everything comes down to dislike for
homosexuals, the forbidden justification identified in __Romer__. 
"Just as the desire to accommodate other citizens' personal or
religious objections to homosexuality did not suffice to uphold
Amendment 2, see __Romer__. . ., the desire to protect a child from
the racial prejudice of others did not provide a legitimate reason
for favoring a same-race couple over an interracial couple in
awarding custody of a child, see __Palmore__. . ., and the negative
attitudes of property owners did not provide a legitimate
justification for allowing rejection of a zoning permit for a home
for mentally retarded individuals, see __Cleburne__. . ., the
desire to accommodate the attitudes of heterosexual service members
opposed to homosexuality does not provide a legitimate reason for
excluding gay men and lesbians from the military."

Turning to the deference issue, Fletcher rejected Noonan's
contention that the court is virtually without power in this
sphere.  "Although claiming only `deference' to the military,
[Noonan] ultimately negates our ability to review any military
decision despite its constitutional infirmity. . .  However, the
military is not above the constitution," she asserted, citing
__Parisi v. Davidson__, 405 U.S. 34 (1971), in which Justice
Douglas, concurring, asserted that the military leaves its sphere
of expertise when it "steps over the bounds of civili liberties." 
Fletcher asserted that the military policy would be clearly
unconstitutional in a civilian context.  "Even taking into account
the unique military context," she wrote, "I see no legitimate
government interest that the policy rationally furthers," finding
that ultimately the Defense Department's specific justifications
rely on "the negative reactions of other service members.  Even in
the military context, an entire class may not be singled out for
disfavored treatment because of animosities towards that class."

The 9th Circuit ruled as the U.S. District Court in Brooklyn, N.Y.,
was considering precisely the same issues in a test case brought
jointly by the ACLU and Lambda Legal Defense Fund, __Able v. United
States__, 88 F.3d 1280 (2nd Cir. 1996).  In __Able__, the 2nd
Circuit reversed District Judge Nickerson's conclusion that the
"don't ask, don't tell" policy violated the Constitution by
inappropriately premising discharges on the sexual orientation of
military members, as revealed by their statements.  The 2nd Circuit
accepted the military's contention that it is rational to presume
that somebody who says they are gay (or, usually the same thing, is
gay) will ultimately engaged in homosexual conduct.  However, the
2nd Circuit then said that yet to be decided was whether it is
constitutional for the military to treat differently homosexual and
heterosexual conduct, finding that this question was not settled by
__Bowers v. Hardwick__, 478 U.S. 186 (1986), in which the Supreme
Court held that a state law penalizing "homosexual sodomy" did not
violate the Due Process Clause.  Rather, in light of __Romer v.
Evans__, which was issued little more than a month before the 2nd
Circuit's decision, it was necessary to evaluate the differential
treatment in light of Equal Protection requirements.

In a Feb. 14 statement, the ACLU indicated that a decision on
whether to appeal __Philips__ will be made shortly.  The Supreme
Court has never granted certiorari on the merits in a gay military
case, and it seems unlikely that it would do so in __Philips__
absent a split of circuit authority, which might emerge in another
year or two depending upon the course of litigation in __Able__.
This it seems that __Able__ is the more likely vehicle to bring the
issue to the Supreme Court.  A.S.L.

LESBIAN/GAY LEGAL NEWS 

Washington State Supreme Court Upholds Newspaper's Reassignment of
Politically-Active Lesbian Reporter

The Supreme Court of Washington State ruled Feb. 20 that a state
law protecting politically active employees from adverse employer
action could not be applied to a newspaper's decision to reassign
a politically active lesbian reporter to a non-reporting job. 
__Nelson v. McClatchy Newspapers, Inc.__, 1997 WL 68117.  Justice
Sanders' opinion for the court found that the political freedom
statute applied to the situation, but that under the 1st Amendment
the state could not apply the statute without improperly burdening
freedom of the press.

Sandra Nelson began reporting for the __News Tribune__ in Tacoma,
Washington, in 1983 and compiled a good record covering the
education beat.  She was open about being a lesbian throughout her
employment, and was an active participant in lesbian/gay rights and
abortion rights activities, including marching in demonstrations,
testifying before legislative committees, and helping to launch
ballot initiatives and to combat other ballot initiatives through
active, public campaigning.  Her superiors periodically expressed
concerns that her activities violated the newspaper's ethical code,
which required reporters to refrain from public political
activities that might place the objectivity of the newspaper in
question.  In August 1990, the editors transfered Nelson from
reporting to a copy editor position at the same pay.  Her new job
had less desirable hours, and ended her public visibility as a
reporter.  Nelson requested reinstatement as a reporter several
times, and especially complained when the paper refused to assign
her back to the education beat when an opening occurred.   

Nelson sued in state court, claiming a violation of R.C.W.
42.17.680(2), which bans employment discrimination for "(a) the
failure to contribute to, (b) the failure in any way to support or
oppose, or (c) in any way supporting or opposing a candidate,
ballot proposition, political party, or political committee."  This
is part of a larger campaign reform statute, and was intended to
keep employers from exerting political controls on their employees. 
Opposing the suit, the newspaper claimed that it did not apply to
Nelson's case, because the paper, which frequently takes pro-gay
and pro-choice editorial stands, has no quarrel with Nelson's
politics, but rather is enforcing its ethical code to avoid
conflicts of interest.  The trial court agreed, and dismissed
Nelson's claims.

The Supreme Court disagreed with the trial court's analysis,
finding that the statute literally applied to this case, because
Nelson was relieved of her reporter assignment precisely because of
her political activities.  It was irrelevant that the publisher may
have agreed with her political views.  However, the Supreme Court
agreed with the publisher (as the trial court had in dicta) that
although the statute would protect Nelson, to apply the statute
would violate the newspaper's editorial independence.  Citing
__Miami Herald Publishing Co. v. Tornillo__, 418 U.S. 241 (1974),
the court found that "editorial control is a necessary component of
the free press and a state law infringing thereon will be
unconstitutional as applied. . .  Here, [the publisher] implemented
a code of ethics which it designed in good faith to foster the
newspaper's integrity and credibility.  Case law unambiguously
allows a news publication to follow a code designed to limit
conflicts of interest which may diminish publication credibility.
. .  Freedom of the press leaves such decisions to the press, not
the legislature or the courts."

Concurring, Justice Dolliver maintained that the statute afforded
no private right of action, but that if the merits were to be
reached, the court should have applied the statute to protect
Nelson.  "The First Amendment does not give a newspaper immunity
from general laws absent a showing of interference with the
newspaper's right to determine what to print," argued Dolliver,
urging a narrower construction of __Miami Herald__. "Absent a
showing of bias in Ms. Nelson's work, and a consequent interference
with The News Tribune's right to editorial control from the
application of the statute, the newspaper cannot claim First
Amendment immunity here."  Also concurring, Chief Justice Durham
agreed with Dolliver that the trial court's dismissal should be
affirmed because the statute provides no private right of action. 
However, Durham felt that any discussion of the merits of Nelson's
claim under the circumstances was "inappropriate." A.S.L.

New Jersey Appeals Court Reverses Conviction of Murderer of Gay Man
Based on Voir Dire Exclusion

Finding that the trial court had improperly excluded the defendant
from attending the questioning of jurors in the judge's chambers
about their attitudes towards homosexuality, and had improperly
engaged in such questioning after the defense had exhausted
peremptory challenges, the New Jersey Appellate Division reversed
the conviction of Jeffrey Dishon and remanded for a new trial in
the 1984 murder of Norman Anctil.  __State v. Dishon__, 1997 WL
45189 (Feb. 6).

Anctil, a gay man, was found dead in his apartment, stabbed 36
times, on Dec. 4, 1984.  Several items were missing from the
apartment.  Police lifted a fingerprint from a glass door that led
them to Dishon; they recovered the stolen items from Dishon's
family and friends.  Dishon's ex-girlfriend testified that he
bragged to her about having killed a "faggot" by stabbing him.  Gay
bartenders in the area identified Dishon as somebody who had been
hanging around gay bars, and Dishon's ex-girlfriend testified that
he liked to laugh and spit at men outside gay bars, calling them
"faggots," and that he had opined that "faggots" should be dead and
that that he would "kill them in a New York second."  Semen found
on pants lying on the floor in the apartment was linked to Dishon
by DNA analysis (as to which Dishon unsuccessfully appealed the
trial court's ruling on admissibility).  At trial, Dishon contended
that another man had come home from a bar with Anctil and him, and
that Dishon left the apartment while Anctil and the other man were
in the bedroom, presumably having sex.  A prior homicide conviction
in the case was reversed in 1989, and the current appeal stemmed
from Dishon's retrial.

During juror selection, the judge aksed the venire about whether
they would have any problems in sitting in a case where
homosexuality was an issue.  Dishon was present for this
questioning.  After the defense exhausted peremptory challenges and
the jury pool was reduced to 14, the judge announced he would do
further questioning in chambers, and denied Dishon's request to be
present, stating that his exclusion was for reasons of "security"
but that Dishon's attorney could relay to him what was said before
making decisions about challenges to jurors.  During in-chambers
questioning, the judge probed potential jurors' attitudes about
homosexuality, knowledge of gay friends and co-workers and the
like.  One juror who indicated strong antipathy to homosexuals was
seated on the jury, as was another juror who said he was gay but
that he could render an impartial judgment.  The jury convicted
Dishon of aggravated manslaughter and weapons possession and he
received a substantial jail sentence.

In an opinion by Presiding Judge Havey, the appellate division held
that the trial judge erred in conducting this in-chambers voir dire
after the defense exhausted its peremptories, and in excluding
Dishon from being present.  Havey emphasized that the issue of
homosexuality was central to the prosecution's case.  "Since there
was testimony that the victim was homosexual and the evidence
suggested that defendant was bisexual because he was a frequent
patron of gay bars, it was important that defendant be present so
that he could have formed his own impressions of the jurors'
demeanor and visceral reactions when they responded to the
questions about homosexuality," wrote Havey.  As to commencing this
questioning after the defense exhausted its peremptory challenges,
Havey asserted that this "procedure distorted the jury selection
process and impaired defendant's right to exercise knowingly his
peremptory challenges. . .  Because of the importance of the
homosexuality theme, defendant may have exercised his challenges
based on the jurors' responses to the judge's inquiry on that
issue, rather than exercise them based on the juror's occupation,
relation to law enforcement officers, prior jury service, and their
answers to other similar questions during the general voir dire. .
.  It may at least be argued that defendant's nonpresence during
the in camera voir dire may not have resulted in reversible error
by itself.  However, we are convinced that this error, together
with the error in conducting the in camera voir dire after
defendant had exercised his peremptory challenges, deprived
defendant of his `substantial right' of a knowing and meaningful
voir dire procedure."

Thus, the manslaughter and weapons charges had to be reversed and
remanded for a new trial.  However, the court affirmed the theft
charge, since defendant's counsel admitted the thefts on the record
in light of overwhelming evidence.  A.S.L.

6th Circuit Widens the Divide Holding Same-Sex Harassment
Actionable Under Title VII

A 3-judge panel of the U.S. Court of Appeals for the 6th Circuit
affirmed that same-sex harassment is actionable under Title VII of
the Civil Rights Act of 1964, thereby increasing the odds that the
Supreme Court will take up the issue.  In __Yeary v. Goodwill
Industries-Knoxville, Inc.__, 1997 WL 73312 (Feb. 24), the court
upheld a ruling that the plaintiff should have his day in court and
concluded that same-sex harassment can occur based on one's sex
when both the aggressor and victim are of the same sex.

Plaintiff Terry Yeary, a cashier at Goodwill Industries in
Knoxville, claimed that in 1992 a male co-worker, Robert E. Lee,
asked him for a date, touched him inappropriately, and whispered
obscene comments about his appearance.  At one point, Lee allegedly
asked Yeary if Yeary had ever seen or had "12 inches."  Yeary said
he reported those incidents to supervisors who did not reprimand
Lee, but instead laughed and joked about Lee's actions and
discussed Lee's history of harassing male employees.  Yeary was
fired the same day he brought the matter to co-defendant and
Goodwill president and CEO, Robert G. Rosenbaum.  Defendants moved
to dismiss Yeary's Title VII action, arguing that Yeary failed to
state an actionable claim.

Writing for the court, Circuit Judge Ryan spoke directly to the
issue whether a complaint can state a Title VII claim when both the
harasser and harassed are of the same sex.  This required an
analysis of whether such harassment can even occur "because of 
sex" as required in Title VII, which applies equally to men and
women.  In the 6th Circuit, one of the five elements of a prima
facie hostile environment claim is that "the harassment complained
of was based upon sex." __Rabidue v. Osceola Ref. Co.__, 805 F.2d
611 (6th Cir. 1986).  Defendants argued that Yeary's claim is
"non-traditional," stating that various courts have concluded that
Title VII should apply only to the "traditional concept of sex" and
hence, only opposite-sex discrimination is actionable.  Ryan turned
their argument against them, explaining that this case is "as
traditional as they come. . ."  

Finding little or no guidance from same-sex harassment cases of
other circuits (but noting that __Quick v. Donaldson Co.__, 90 F.3d
1372 (8th Cir. 1996), opened the door to finding that same sex
harassment may be actionable), the court stated that under any
other circumstance this would be actionable if Lee and Yeary were
of opposite sexes, regardless of who was the aggressor or victim. 
"Consequently, we find no substantive difference between [that] and
[the case] present here."  Ryan noted that Yeary's complaint does
not suggest that Yeary was targeted by Lee because of any of the
other non-sex-based reasons that presented themselves in other
cases, but was targeted because he was male and he was attractive
to Lee.  "If true, this creates an institutional disadvantage for
Yeary in working at Goodwill, simply by virtue of the fact that he
is a man.  He had to put up with abuse and harassment that women
there did not have to endure.  [Thus,] there is little question
that the behavior is a form of harassment that occurs because the
propositioned male is a male -- that is, "because of ... sex." 
K.J.R.

Court Decries Sentencing Guidelines In Reversing Lengthy Sentence
for Husband Who Killed Wife Over Lesbian Affair

In a strongly worded opinion, Judge R. A. Randall of the Minnesota
Court of Appeals attacked state sentencing practices, calling them
mindless and driven by political correctness.  In __State of
Minnesota v. Moman__, 1997 WL 40770 (Minn. Ct. App. Feb. 4), the
appellate court reversed a 38-year jail term imposed on a man
convicted of murdering his wife.

The defendant, Billy Glen Moman, was married to Christa Moman, with
whom he had a daughter, Chelsey.  On May 3, 1995, the couple got
into an argument about an extra-marital affair in which Mrs. Moman
was involved with a woman.  After Mrs. Moman announced her
intention to leave Billy Glen and take their daughter with her, he
"lost control" and stabbed her 148 times.  Chelsey witnessed some
of this deadly assault.  When the police found Christa Moman's body
in the family garage, the word "Hi" was written in blood on her
buttocks.  

Moman pleaded guilty to murder in the second degree for which the
district court imposed a 459 month sentence, a  50 percent upward
departure from the 306 month term in the state sentencing
guidelines.  Under the Minnesota Sentencing Guidelines, a guideline
sentence may be disregarded if there are mitigating or aggravating
circumstances.  The trial court found no mitigating and three
aggravating factors in Moman's case: 1) the viciousness of the
crime; 2) the presence of the couple's daughter; and 3) the writing
of "Hi" in blood on the victim's body.

Judge Randall noted that the guidelines have resulted in an
increase in length of prison sentences and in the size of the
prison population.  Characterizing the call for longer and longer
sentences as demagoguery, Randall asserted that, since the
institution of the 1980 guidelines, crime has actually increased
along with prison sentences and that "rush-to-judgment sentencing
policies" result in a drain of taxpayers' money.  The court pointed
out that Moman's presumptive guideline sentence, before the upward
departure, is approximately three times the sentence that was
called for in 1980 before adoption of the guidelines.

Randall assailed the application of the aggravating factors as
being "subjective and mushy," and questioned the lower court's
factoring in the "vulnerability" and "zone of privacy" of the
victim and considering the "particular cruelty" and "untypical"
nature of the crime.  Stating that it is not "untypical" for other
family members to witness crimes between spouses, the court
rejected increasing Moman's sentence for this reason as
"politically correct sugar coating."

The court went on to criticize what it saw as a disparity between
upward and downward departures from the guidelines.  The
permissible reasons for downward departures, the court asserted,
are very narrowly drawn and rarely granted.  The court was
especially critical of the sentencing guidelines which, when
considering __downward__ departures, exempt from consideration such
factors as work history and presence of minor children.  On the
other hand, trial courts freely deviate upwardly and appellate
courts seldom overturn.  As a result, Minnesota's prisoners are
required to serve the longest sentences in the nation before they
are eligible for parole.

The court concluded that in 1980 Minnesota appeared to have arrived
at an appropriate sentencing policy but since then the state has
lost its way.  The case was remanded for resentencing consistent
with the presumptive sentence as provided for in the Minnesota
Sentencing Guidelines.  Some members of the court dissented from
this disposition.  C.W.

6th Circuit Denies Appeal by Transsexual Inmate

In a per curiam opinion covering consolidated actions, __Murray v.
U.S. Bureau of Prisons__, 1997 WL 34677 (Jan. 28), a panel of the
U.S. Court of Appeals for the 6th Circuit affirmed a summary
judgment and a jury verdict against a male-to-female transsexual
prisoner on her complaints about her treatment in prison.

Michelle Murray was first assigned to the Federal Correctional
Institute ("FCI") in Morgantown, West Virginia, and later
transferred to the FCI in Ashland, Kentucky.  She alleged that
prison officials at FCI Ashland violated her constitutional rights
by: placing her in segregated confinement; preventing her from
receiving items she needed to maintain a feminine appearance;
harassing her verbally with regard to her appearance and perceived
sexual orientation; abusing her physically; denying her sufficient
levels of hormone treatments; and filing a false report in
retaliation for lodging her initial complaint.  A federal
magistrate awarded summary judgment to defendants on all claims
except for one allegation charging a correctional officer of
physical abuse.  On Nov. 29, 1994, a jury found the defendant
officer not guilty.  A magistrate judge entered a judgment
consistent with that verdict.

The court of appeals found that Murray's segregated confinements
violated neither Due Process nor the 8th Amendment.  The first
placement was necessary to protect the plaintiff from assault soon
after she arrived at FCI Ashland and the second was necessary to
maintain order and was a reasonable response to her refusal to wear
a brassiere, held the court, which also held that the denial of
cosmetic products could not be considered a deprivation denying 
"the minimal civilized measure of life's necessities" and therefore
did not offend the 8th Amendment.  In addition, the court found
that prison officials' alleged remarks disparaging Murray's
appearance and presumed sexual preference was not a violation of
her constitutional rights.  Although recognizing that such actions
may be offensive, the court stated that the 8th Amendment "does not
afford us the power to correct every action, statement or attitude
. . . with which we might disagree."

In denying Murray's claim that her dosage of female hormones was
inadequate, the court acknowledged that transsexualism is a
recognized medical disorder for which the plaintiff has a right to
treatment.  However, it asserted that Murray did not have the right
to dictate a specific course of treatment.  The court maintained
that this was the responsibility of the prison doctor and that the
court was in no position to second guess the judgment of a
physician.  Despite Murray's being placed in segregated confinement
the same day that she filed her initial complaint, the court did
not find that prison officials acted in retaliation.  On the
morning that she filed her complaint, a correctional officer
claimed that he found her in bed with another prisoner.  Murray
alleged that the inmate was sitting on the edge of her bed, not in
it.  Nonetheless, the court found that the evidence was sufficient
to justify Murray's segregated confinement.  Finally, the court
denied her appeal of the jury verdict on procedural grounds.  The
court pointed out that it sits to hear only appeals that have been
specifically identified in the notice of appeal.  Although Murray's
appeal failed to mention the magistrate's final judgment after
trial, the court indicated that it had the discretion to hear cases
despite such procedural defects.  However, the court refused to
exercise its discretion to review the magistrate's entry of the
jury verdict because Murray failed to provide the court with a
transcript of the trial. C.W.

Massachusetts High Court Upholds Same-Sex Harassment Claim

The Massachusetts Supreme Judicial Court ruled Feb. 18 that a
complaint by male employees for sexual harassment by a male
supervisor was actionable under the Massachusetts Law Against
Discrimination.  __Melnychenko v. 84 Lumber Company__, 1997 WL
63637.  The case is significantly distinguishable from cases under
Title VII of the Civil Rights Act of 1964, because unlike Title VII
the state statute involved expressly covers sexual harassment and
includes a definition that lends itself to broad interpretation. 
However, two members of the court dissented, agreeing with the
employer that facts found by the trial judge did not amount to sex
discrimination.

Several male employees of the company complained that Richard Raab,
a supervisor, engaged in sexually-charged harassing conduct
creating a hostile environment.  The opinion by Chief Justice
Wilkins quoted extensively from the trial judge's factual findings,
which included a litany of unwanted physical contact, publicly
announced insinuations that Raab was engaging in sexual activity
with the plaintiffs, and other activity of a sexual nature clearly
intended to make the victims uncomfortable in the workplace. 
However, there was no indication that Raab seriously wanted to have
sex with the plaintiffs, and it does not appear that either Raab or
the plaintiffs are gay or perceived as such.  The company argued
that same-sex harassment of this type is not "sex discrimination"
under the law.

Mass. G.L. c. 151B, sec. 4(16A), specifically makes it an unlawful
practice for an employer "to sexually harass any employee."  The
offense is defined in sec. 1(18)(b) to include "sexual advances,
requests for sexual favors, and other verbal or physical conduct of
a sexual nature" which has "the purpose or effect of unreasonably
interfering with an individual's work performance by creating an
intimidating, hostile, humiliating or sexually offensive work
environment."  The court found that under this statutory language,
an offense of sexual harassment could be established without any
showing that the victims were singled out for harassment on account
of their sex.  Rather, the statutory language (not found in federal
Title VII) created a distinct offense of hostile environment sexual
harassment, whose requirements were satisfied in this case.

Dissenting, Justice O'Connor, joined by Justice Lynch, stated that
a separate offense of sexual harassment had not been created.
Rather, the legislature intended to extend the reach of the sex
discrimination provision to include sexually harassing conduct
where the victims are singled out because of their sex.  Because
there was no evidence presented that the victims in this case were
particularly singled out because of their sex (or that Raab was a
homosexual who would only subject male employees to such sexually
aggressive behavior), O'Connor argued that the trial judge's
decision should be reversed.

One of the plaintiffs had also complained that he suffered
retaliation because he gave an affidavit in support of a co-
plaintiff's initial human rights complaint.  The court found that
the trial court's decision against the plaintiff on this point was
reasonable in light of the record, even though a contrary decision
was also possible, and, given the normal deferential standard of
review for factual determinations, decided not to upset the trial
court's decision to dismiss this part of the complaint.

The plaintiffs on appeal were represented by Charles V. Ryan,
Timothy J. Ryan and Clifford Heaton.  Mary Bonauto and Nan Evans
filed an amicus brief on behalf of Gay & Lesbian Advocates and
Defenders and others.  A.S.L.

Wisconsin Appeals Court Dismisses Claim of Anti-Gay Bias by
Corrections Agent

In __State v. Suchocki__, 1997 WL 40401 (Wisc. Ct. App., Feb 4.),
David Suchocki appealed his prison sentence relating to marijuana
offenses and an order denying his motion to strike a presentence
report prepared by an agent of the Division of Corrections who was
married to the prosecuting attorney in his case.  In addition to
arguing that the marital relationship between the agent who
prepared the presentence investigation report (PSI) and the
prosecuting attorney rendered the report invalid and required a
re-sentencing with a presentence report prepared by an independent
and neutral agent, Suchocki also contended that the presentence
report writer was prejudiced against him because of his sexual
preference.  The prejudice alleged was that the agent had sought a
change of her own child's placement in her divorce proceeding,
alleging concern over the child's safety based on her former
husband's homosexuality.  The divorce court referred to the
prosecutor's anxiety that her former husband would influence their
son into a "homosexual lifestyle."

The trial court heard and denied the motion to strike the PSI, but
allowed the defense to file its own sentencing recommendations. 
The defense retained a social worker to prepare an alternative PSI.
The trial court considered both the state's PSI and the defendant's
PSI at sentencing. The Court of Appeals ruled that although the
marital relationship was sufficient to demonstrate bias and it was
improper for a biased writer to prepare a PSI, Suchocki was not, in
fact, prejudiced because the sentencing process was not improperly
influenced by the presentence report.  In addition, the evidence
was insufficient to conclude that the PSI writer was biased against
Suchocki because of Suchocki's sexual preference.  

The court ruled that the trial court's consideration of the state's
PSI was not proper, but ultimately affirmed the sentence, because,
while requiring the defendant to demonstrate how the sentence
writer's report would be prejudiced by his relationship with the
prosecutor would present an insurmountable burden, Suchocki did not
demonstrate any actual prejudice.  Suchocki's sentence was more in
line with the recommendation of his own PSI than of the State's. 
Apparently, the prejudice on the part of the PSI writer could be
presumed, but the defendant would have to go a lot further than
Suchocki did to demonstrate prejudice in sentencing. 

As to the charge that the PSI writer was prejudiced against
Suchocki because of her attitudes towards homosexuality, the court
was reassured by the following comments made by the trial judge on
the record: "I certainly find that any reference to Mr. Suchocki's
sexual orientation has nothing to do with these proceedings.  That
is not part of this and need not be considered, and I am not
considering that."  Once again, that the trial court's sentence was
closer to the defense's recommendation than to that of the PSI
writer was cited as evidence that any anti-gay bias of the PSI
writer seemed not to have affected the sentence.  S.K. & A.S.L.

Gay Man Denied Compensation for Crime Against His Partner

The appellant in __Secord v. Fischetti__, 1997 WL 43023 (N.Y.A.D.
1st Dept., Feb. 4), had been denied compensation from the N.Y.
State Crime Victims Compensation Board.   He sought review of the
decision pursuant to CPLR Article 78 (roughly akin to a writ of
certiorari).  The Board's decision was affirmed in a brief and
cryptic decision that did not specify the circumstances under which
Secord's partner was a crime victim.

The Appellate Division ruled that Secord was not entitled to
compensation because the Board's interpretation of "surviving
spouse" (Exec. Law sec. 624(1)(b)) as not including "homosexual
life partner" was consistent with prior New York court decisions. 
Secord also was not entitled to support payments under Exec. Law
sec. 624 (1)(c), which provides for benefits to a person dependent
on a crime victim, because, as between Secord and his partner,
Secord had earned the bulk of the
income of the household over the three years prior to the crime.
S.K.

NY Court Dismisses Libel Claim by Lesbian Rape Victim Against
__Daily News__ and Reporter McAlary

On April 26, 1994, a 29-year old woman reported to police that she
was raped in Prospect Park in Brooklyn, N.Y., in broad daylight. 
In a newspaper article two days later, __Daily News__ columnist
Mike McAlary reported that anonymous sources within the police
department said the police were unable to confirm the victim's
account.  McAlary went on to accuse the woman of perpetrating a
"hoax" and suggested that the police arrest her for filing a false
report.  McAlary described the woman as a black lesbian and accused
her of fabricating the rape account to further her gay-rights
agenda.  In a second column, McAlary continued to accuse the woman
of lying, despite confirmation of reports that semen was found on
the victim's body and clothes.  After McAlary wrote a third column
in which he defended his previous assertions, the woman sued,
alleging that the articles libeled her.

Defendants McAlary and the __Daily News__ moved for summary
judgement. On Feb. 5, N.Y. Supreme Court Justice Charles E. Ramos
dismissed the suit. In __Doe v. Daily News__, N.Y.L.J., Feb. 6,
1997, p. 28, col. 6, the court asserted that the common law
privilege of fair comment bars an action for libel if the article
in question accurately reports "official information."  McAlary
based his articles on sources within the New York City police
department.  Although much of this information was not correct, the
court held McAlary blameless because he reported the misinformation
accurately and arrived at "reasonable" conclusions from these
inaccuracies.  In a deposition, former Deputy Police Commissioner
John Miller acknowledged that he had supplied McAlary with some of
the information used in the articles.  Justice Ramos found there
was a "reasonable relationship" between the police sources and
McAlary's columns, and concluded that the plaintiff did not meet
her burden, as established by the Supreme Court, of proving that
the defendant acted with reckless disregard for the truth.  The
court also held that the plaintiff failed to meet the burden of
proving that the defendant's articles were grossly inaccurate or
unreasonable.

In a related but separate ruling, Justice Ramos denied Doe's motion
to reargue a prior determination, published at 632 N.Y.S.2d 750
(1995), which found her to be a public figure.  Affirming
defendant's 1st and 14th Amendment defenses under the Constitution,
Ramos contended that these protections should be broadly applied to
the press, and made an impassioned argument for absolute freedom of
the press, criticizing the Supreme Court's holding in __New York
Times Co.v. Sullivan__, 376 U.S. 254 (1964) for "diminishing basic
First Amendment principles" by potentially imposing liability under
a standard of actual malice.   Ramos suggested that rather than
using the courts, it would be better to resolve such cases by
bringing them before tribunals comprised of press professionals.
C.W.

Los Angeles Settles With Gay Demonstrator for $87,000

Lambda Legal Defense Fund and ACLU of Southern California announced
what they claim is a record settlement in a police brutality claim
brought by Peter J. Mackler, a gay man, against the City of Los
Angeles.  The settlement was concluded shortly before the case was
scheduled to for trial in Los Angeles County Superior Court. 
Mackler, who will receive $87,000, was severely beaten by a police
officer during a demonstration against California Governor Pete
Wilson after Wilson vetoed a gay rights measure.  According to a
Lambda statement on Feb. 6, "After an officer shoved Mackler in the
back more than ten times with a police baton, Mackler turned to try
to get the officer's badge number.  The officer, David Peck,
responded by lifting his baton above his head and striking Mackler
in the face with such force that Mackler was knocked to the ground
and his glasses were broken and thrown 25 feet.  Peck (who now
works for the Tacoma, Washington, Police Department) and another
officer then threw Mackler several times.  Mackler was never
arrested nor charged with any violations, but he suffered injury to
one eye and later experienced headaches and dizziness." 

As part of the settlement, the LAPD must issue policies clarifying
that police officers must identify themselves to anyone who seeks
to know their name or badge number whenever they are physically
able to do so, are prohibited from keeping anyone from finding out
or doing anything to obscure their badge number or name, and are
prohibited from retaliating against anyone for finding out or
attempting to find out identifying information about them.  Jon
Davidson, supervising attorney in Lambda's Los Angeles office, was
lead counsel. Davidson asserted that this is the largest settlement
ever achieved in a police brutality suit against the LAPD, and one
of the highest ever obtained in the U.S. A.S.L.

N.C. Appeals Court Rules on Psychiatric Malpractice Claim in
Treatment of Depressed Homosexual

In an appeal from an $850,000 malpractice judgment, psychiatrist
Ernest Raba won a new trial based on the finding by the North
Carolina Court of Appeals that the trial court improperly declined
to instruct the jury on contributory negligence.  __Cobo v. Raba__,
1997 WL 78829 (Feb. 18).

Dr. Michael Cobo moved to Durham, N.C., in 1980 to take a position
at Duke Medical School.  Having suffered from depression during
medical school and his residency, he began treatment with Dr. Raba. 
Cobo, who is married, was troubled by homosexual feelings and had
substance abuse problems.  He had previously experienced bad side
effects from psychotropic medication, and told Raba he wanted to
avoid drugs to treat his depression; he also asked Raba not to take
notes of their sessions.  Raba attempted to treat Cobo's depression
through psychotherapy, but the treatment was not successful. 
Cobo's depression got worse, he began to engage in furtive sex with
gay men, and increased his alcohol and marijuana use.  In 1986,
Cobo tested postive for HIV and the focus of his psychotherapy
shifted to deal with this new issue.  Finally, Cobo terminated
treatment with Raba in 1988 and went to another psychiatrist, who
treated him with drugs.  Once the medication took effect, Cobo's
depression improved significantly.  Cobo and his wife then sued
Raba for malpractice.

An expert testified that the major depression from which Cobo
suffered was a "biologic disregulation" due to "chemical
imbalances" which could not be treated through psychotherapy.  At
the conclusion of trial, Raba, who testified about the restrictions
on treatment requested by Cobo at the outset of their relationship,
asked for a jury instruction on contributory negligence, but the
court refused.

The appeals court concluded, by a divided vote, that the trial
court erred.  Judge Greene wrote: "On the face of this record there
is evidence that a reasonable mind might accept as adequate to
support the conclusion that Cobo's sexual activities with other men
did not contribute to the depression for which he sought treatment
from defendant.  Although there is evidence that Cobo was having
intermittent sex with other men prior to his treatment by the
defendant, there is no evidence that his sexual activities (prior
to or during his treatment by the defendant) was the cause of his
depression.  Indeed, there is evidence that Cobo's depression was
the result of a biological condition.  Accordingly, because there
is substantial evidence that Cobo's conduct during the time he was
being treated by the defendant joined simultaneously with the
negligent treatment of the defendant to cause Cobo's injuries, the
trial court erred in not submitting the issue of contributory
negligence to the jury on this basis. . . . 
There are also other grounds that support submission of the issue
of contributory negligence.  Defendant produced substantial
evidence that he was hindered in his diagnosis and treatment due to
several conditions Cobo imposed on him.  Cobo initially refused to
pursue a course of treatment involving medication due to the
effects that a previous medication had upon him. Further, to ensure
that his confidentiality was protected, Cobo requested that
defendant take no notes during the sessions.  Thus there is
substantial evidence that these actions by Cobo occurred
simultaneously with defendant's negligent treatment and diagnosis
to cause Cobo's injuries."  The court rejected an attempt by Cobo
to use the statute of limitations to shorten the time period of his
potential liability.

Dissenting from the ruling on contributory negligence, Judge McGee
appeared to assume that homosexuality, contrary to the current
position of psychiatric professional organizations, is itself a
condition for which psychiatric treatment is appropriate.  Wrote
McGee: "[T]he majority states there is no evidence Dr. Cobo's
sexual activities were the cause of his depression.  While this
statement is correct, the evidence actually indicated that Dr.
Cobo, although a `fundamentally homosexual' man, engaged in at risk
sexual activity in reaction to his depression.  In fact, his
concern over his homosexual tendencies was a factor in seeking
treatment.  Because he sought treatment for his homosexual activity
as a symptom of his depression, Dr. Cobo's position is similar to
the alcoholic seeking treatment for alcoholism . . .  Nor do I
agree with the majority that there are other grounds upon which to
find contributory negligence.  Dr. Cobo initially told defendant he
did not wish to take medication because, as a surgeon, he could not
afford to be sedated.  However, because defendant improperly
diagnosed Dr. Cobo, Dr. Cobo was never told his condition was
biological in nature.  Because Dr. Cobo was never told that his
condition would not respond to psychotherapy, but would respond
favorably to medication, Dr. Cobo could not make an informed
decision about the medication and his initial reluctance to being
treated with medication cannot be held to be negligent.  Nor does
Dr. Cobo's request that defendant keep no notes amount to
contributory negligence.  Regardless of whether defendant kept
notes, he would still have been treating Dr. Cobo with
psychoanalysis, which the evidence showed was an improper and
ineffective method of treatment."  McGee would have affirmed the
jury verdict.  A.S.L.

Virginia Appeals Court Upholds Conviction of Gay-Basher

The Virginia Court of Appeals voted to uphold an assault and
battery conviction in __Reynolds v. Commonwealth__, 1997 WL 64460
(Feb. 18).  Martin J. Reynolds was convicted of beating up Hal
Taylor at the (apparently accurately named) Bad Habits Grill in
Arlington, Virginia.  The arresting officer testified that
"Reynolds told him that Reynolds had assaulted the victim because
the victim was a homosexual who had been making advances toward
Reynolds and one of his friends."  The trial judge admitted
rebuttal testimony from another bar patron about a threat Reynolds
made to him prior to the assault on Taylor: "If you don't look
away, there's going to be a problem."  On appeal, Reynolds claimed
that the trial court erred in admitting this testimony, but the
court found it probative of Reynolds' intent at the time he
assaulted Taylor, and affirmed the conviction.  A.S.L.

Marriage & Domestic Partnership Developments

As we went to press, a conference committee of the Hawaii
legislature was scheduled to meet early in March to attempt a
compromise between House and Senate measures that would do two
things: place a constitutional amendment on the 1998 general
election ballot to allow the state to restrict marriage to
opposite-sex couples, and enact a partial domestic partnership law
that would go into effect if the constitutional amendment is
ratified.  The amendment and partnership bills passed by the two
houses are radically different.  The Senate version of the
amendment is, according to some observers, possibly just symbolic,
because it builds in a no-sex-discrimination requirement that could
leave the door open to the same result already reached by the
Hawaii courts on the marriage issue.  As to the partnership
measures, the House version is a narrow, covering only a handful of
issues, while the Senate version is more expansive.  Advocates for
same-sex marriage were hopeful that differences between the houses
were wide enough to forestall agreement.  The Hawaii Supreme Court
will soon announce whether and when it will review the lower
court's decision holding that the state must issue marriage
licenses to same-sex couples.

On Feb. 12, Mississippi Governor Kirk Fordice signed a measure
banning same-sex marriages.  Denouncing such relationships as
"perverse," he stated: "For too long in this freedom-loving land,
cultural subversives have engaged in trench warfare on traditional
family values. . .  Insurance benefits for dependents were never
intended for perverse relationships such as the same-sex marriage. 
They were intended for traditional families."  An opponent of the
bill, State Rep. Jim Evans, criticized the governor's moralizing
tone, noting that he is recovering from an auto accident incurred
while returning from lunch with an unidentified woman in Memphis
while his wife was out of town. __Associated Press__, Feb. 13.  A
similar law was enacted last month in Arkansas, and a bill passed
the Virginia legislature with the support of Governor Allen and was
awaiting signature as we went to press.

The Washington legislature passed a bill banning recognition of
same-sex marriages, but Governor Gary Locke vetoed it.  Locke is
one of the few state chief executives who has spoken in favor of
same-sex marriage. The Senate sustained the veto and efforts began
in both houses to place a question on the state's ballot this fall
seeking to enact a version of the bill. __Seattle Post-
Intelligencer__, Feb. 15, Feb. 22, Feb. 27.

The Maine Secretary of State's office announced that a referendum
question to ban same-sex marriages has qualified for the Nov. 1997
ballot, but Reuters reports that opponents of the measure think the
ban will be unconstitutional, so they may ask the legislature and
governor to enact it as regular legislation so that a court
challenge can be filed immediately.

The U.S. General Accounting Office, which analyzes legislative
issues at the request of Congress, has issued a report on the
impact of the Defense of Marriage Act's definition of marriage
under federal law.  The report was requested by Rep. Henry J. Hyde,
Chair of the House Committee on the Judiciary, at the behest of
former Rep. Steve Gunderson, who withdrew his request to amend DOMA
to include a requirement that such a report be prepared on the
assurance from Rep. Hyde that the report would be requested. 
Report No. GAO/OCG 97-16 is available at the GAO's website
(www.gao.gov) and on Westlaw at 1997 WL 67783.  The report lists
1,049 federal provisions under which marital or spousal status
affects some entitlement, right, or obligation. In a summary
attached to the report, the GAO describes the range of laws
affected by DOMA, which provides that for all purposes of federal
law only opposite-sex marriages will be recognized.  The GAO
identified relevant provisions by using a word search through
statutory databases.  Thus, the report does not include
regulations, executive orders, guidelines, or informal agency
policies.

The mayor and a majority of city council members in Chicago have
reached agreement on a measure to extend the same health and other
benefits to gay partners of city workers as are received by married
couples.  According to the __Chicago Tribune__ (Feb. 27), at least
30 of the 50 alderman had committed to supporting the proposed
ordinance, which has already been given the green light by Mayor
Richard Daley and Corporation Counsel Susan Sher. * * * A proposal
to extend domestic partnership benefits has been introduced in the
Philadelphia city council.

The city of San Francisco took a bold step by legislating that all
city contractors must provide domestic partnership benefits
effective June 1.  One major social services contractor that
objected was the Archdiocese of San Francisco, but intensive
negotiations between the mayor, city supervisors and church
representatives has resulted in a compromise: Employees of church-
affiliated groups will be able to designate someone in their
household (spouse, sibling, other relative or unmarried partner) to
receive spousal-equivalent benefits.  __Washington Post__, Feb. 8.

Six of the seven candidates for mayor in St. Louis, including
incumbent Freeman Bosley, Jr., showed up at a candidates forum for
the gay community held Feb. 23.  Among those who showed up were
Democrats, Republicans, and one independent candidate.  All the
candidates agreed that gay sex should be decriminalized, and some
of the Democrats, including Mayor Bosley, endorsed a domestic
partnership registry and eventual extension of health benefits to
gay partners of city employees.  Pressed by those present, Bosley
agreed to meet shortly with gay politicos to draft an executive
order setting up a registry without waiting for legislation.  __St.
Louis Post Dispatch__, Feb. 24.

The University of Colorado regents expressed support for a proposal
to extend health insurance to unmarried life partners of university
employees, regardless of gender.  A formal proposal will be drafted
for presentation to the board of regents, probably in May.  __Rocky
Mountain News__, Feb. 20. A.S.L.

Military News Updates

The Servicemembers Legal Defense Network (SLDN) released its third
annual report documenting violations of the Defense Department
policy (don't ask, don't tell, don't pursue) on service by
lesbians, gay men and bisexuals.  Many commanders continue to
launch inquiries into the sexual orientation of servicemembers in
violation of the regulations, and also many condone anti-gay
harassment.  850 people were discharged in 1996, a five year high,
and women were disproportionately targeted.  SLDN also charged that
DoD continues to bring criminal prosecutions for consensual gay sex
under circumstances where it would not prosecute for military code
violations by heterosexuals, and that there are incidents of
physical torture of suspected gay servicemembers to gain
confessions.  The Feb. 26 report received extensive media comment.
SLDN urged that protest letters be sent to Secretary of Defense
William Cohen and Vice President Al Gore.  In a statement released
Feb. 26, Cohen stated that if he was satisfied that the policy was
being violated, "I will do everything I can to see that it's
stopped."  Cohen voted for the bill that added this policy to the
U.S. Code in 1993.  In a more formal response, the Defense
Department released a statement promising "appropriate action" if
there is "credible and specific information" that the policy is
being violated.  The Pentagon statement also speculated that many
of the discharges may be due to new recruits announcing they are
gay when they decide they don't like military life and want a quick
way out.  The Pentagon offered no data to back up this speculation,
which was disputed by the SLDN. __San Francisco Chronicle__, Feb.
27. 

According to the __Chronicle of Higher Eduation__ (Feb. 21), the
U.S. Department of Education has announced that students who attend
colleges that bar ROTC or military recruiters are not in danger of
losing their federal Pell Grants or student loans.  The Education
Department is taking the position that a law enacted last year
barring federal financial assistance of any kind to schools that
bar the military does not apply to student assistance funds, only
to money going directly to academic institutions. * * * California
State University at Sacramento had previously restored its ROTC
program, fearing a loss of federal scholarship money for students,
according to the __Sacramento Bee__ (Feb. 1).

Justin Elzie, a Marine who announced he was gay on the ABC Nightly
News shortly after Bill Clinton's inauguration in January 1993, has
won the legal battle over his discharge and will retire with a
$30,000 bonus.  Elzie had been accepted into an early retirement
program when he made his TV announcement; immediately after the
broadcast, the Marines removed him from the program and discharged
him without early retirement benefits.  A court found the Marines'
action unconstitutional, __Elzie v. Aspin__, 897 F.Supp. 1 (D.C.C.
1995), and remanded for further processing.  Elzie continued to
serve for four years until the matter was settled in January, when
the Marines offered to let him retire with the benefits he had been
expecting under the program.  __New York Times__, Feb. 23.  

John Hoffman, a gay man employed in a civilian capacity as a
mechanic at the Air Force Reserve Station in Willow Grove,
Pennsylvania, lost his job when he was forced to retire from the
Reserves to avoid being discharged for being openly gay.  Unlike
the Navy, the Air Force has not adopted a policy barring sexual
orientation discrimination among civilian employees.  Hoffman sued
in federal court, represented by the ACLU of Pennsylvania,
contending that the discharge from his civilian job violates his
right to equal protection. __NY Times__, Feb. 20.  A.S.L.

Law & Society Notes

Thirteen cabinet level agencies and 33 independent agencies of the
U.S. government, employing in total more than 2 million persons,
have issued policy statements forbidding sexual orientation
discrimination.  This accounts for approximately 3/4 of all federal
employees.  Still to be heard from are several Defense Department
agencies (although some have non-discrimination statements covering
civilian employees) and 39 independent agencies.  __Washington
Blade__, Jan. 31. 

The Pittsburgh, PA, city council voted 8-1 to adopt a new
definition of "sex" in the city's human rights ordinance that will
be inclusive of transgendered persons.  The ordinance already bans
sexual orientation discrimination.  

The student supreme court at Pennsylvania State University in State
College unanimously voted Feb. 16 to deny funding to a student
organization called STRAIGHT - Students Reinforcing Adherence in
General Heterosexual Tradition.  Dan Loccarini, a militant anti-gay
student, formed the organization specifically to advocate against
acceptance and support for gay people on campus.  Loccarini says
that he favors "toleration" but not support or acceptance, which he
equates with "approval" of homosexuality.  He is described as a
"body-building sociology major;" is this his roundabout way of
trying to get a date?  __Philadelphia Inquirer__, Feb. 18.  After
the controversy came to light, the ACLU's Pennsylvania chapter
opined that Loccarini's 1st Amendment rights were violated by the
decision.  Said the ACLU's state executive director, Larry Frankel,
"heterosexuals who feel threatened by homosexuals" have the same
constitutional protection as Christian evangelicals and lesbians
and gay men.  __Pittsburgh Post-Gazette__, Feb. 20.

A follow-up on __Ward v. Ward__, 1996 W 491692 (Fla. Dist. Ct.
App., 1st Dist. Aug. 20, 1996), the homophobic custody decision
whose further course on appeal was aborted by the sudden,
unexpected death of Mary Ward: Florida attorney Allan H. Terl filed
a disciplinary complaint against Judge Joseph Q. Tarbuck, alleging
a violation of the Florida judicial ethics code which forbids bias
on the basis of sexual orientation in Florida courts.  Terl alleged
that comments made by Tarbuck at an August 1995 custody hearing
revealed anti-gay bias.  Terl said he had been waiting for the
conclusion of the case to file his complaint, but now that it is
impossible for the matter to be litigated further, he decided to
file.  __Miami Herald__, Feb. 4.  

The U.S. Air Forces Court of Criminal Appeals upheld the conviction
of Staff Sergeant Victor P.O. Malaca on sodomy charges in a
decision issued Jan. 29.  __U.S. v. Malaca__, 1997 WL 37797.  The
court upheld the military judge's decision that Malaca had been
given adequate warnings before he confessed to his crime of
allowing another service member to fellate him in an off-limits
adult bookstore near the military base, and found that the methods
used by the investigative officers to extract Malaca's confession
(including telling him that they had a videotape of him at the
bookstore, which in fact they did not have) did not taint the
investigation.  While the court did find an error in instructions
to the court-martial on a charge that Malaca had threatened the
other servicemember to obtain his sexual services, it concluded
that throwing out this part of the conviction did not affect the
appropriateness of the sentence: a bad-conduct discharge, 6 months
confinement, forfeiture of $800 a month for the 6 months, and a
reduction in rank. 

What if they passed a "gay rights law" and nobody noticed? 
Something like that seems to have happened in Henderson, Kentucky
(pop. 26,000), where the City Personnel Director quietly amended
the city's non-discrimination policy for municipal employees four
years ago to include a ban on sexual orientation discrimination. 
So quietly, in fact, that nobody remarked on it until recently when
somebody noticed that employment application forms had been
modified to include sexual orientation on the list of prohibited
discrimination and gay activists started spreading the word. 
Personnel Director Ken Christopher said the change was made because
the city "wanted to do the right thing," according to the
__Lexington Herald-Leader__, Feb. 9.

The __Los Angeles Times__ reported Feb. 24 that gay men arrested
during the 1940's, '50's and '60's by vice officers for soliciting
sex (conduct now legal) were being swept up in the wave of sex-
abuse hysteria embodied in new statutes requiring registration and
public disclosure of the addresses of sex offenders.  The
California Supreme Court ruled long ago that it violated the
constitutional ban on cruel and unusual punishment to make minor
lewd conduct offenders subject to a lifetime registration
requirement.  However, the newly-enacted statutes have police
departments reviving old sex-offender files and contacting people
arrested on minor charges decades ago, requiring them to prove that
they are not subject to the new registration requirements.  With
the clumsiness typical of bureaucracies, some police departments
are mailing notices to people with "Sex Crime" stamped in red ink
on the envelope, according to the __Times__, and the notices
threaten arrest and punishment if the individual does not report to
register as a sex offender with the police department.  Sounds like
time for some new lawsuits!  

Internet Censorship News: According to the __Boston Globe__ (Feb.
13), Boston Mayor Thomas Menino has ordered the Public Library to
install blocking software on its internet terminals to insure that
children are unable to access sexually explicit material.  Once the
software is installed, nobody will be able to access lesbian and
gay-related Internet material using Boston Public Library
terminals, or at least so it is argued by opponents of the mayor's
order.  

A St. Louis man is suing his union/employer for breach of contract,
infliction of emotional distress, and a violation of the city's
sexual orientation discrimination ordinance, claiming $500,000 in
damages for his layoff.  John Oberkramer cited the union's non-
discrimination policy as the basis for his contract claim, alleging
that after he put a picture of his partner on his desk, his
supervisor subjected him to a campaign of harassment, denied him
job benefits given to others, and laid him off in a claimed force
reduction, but then turned around and hired a less qualified person
to fill his position.  "What you do outside your work is your own
business," asserted Oberkramer in the __St. Louis Post Dispatch__,
Feb. 1.  

The city council in Lacey, Washington, amended its Fair Housing
ordinance to ban sexual orientation discrimination on Jan. 23.  The
city already bans anti-gay discrimination in municipal employment,
and increases penalties for anti-gay bias crimes.  Local activists
will next attempt to get an ordinance prohibiting employment
discrimination by private employers.  __Washington Blade__, Feb.
14.  A.S.L.

File Asylum Claims by April 1

Groups assisting lesbian and gay immigrants and potential asylees
spread the word this month that under provisions going into effect
April 1 it will become much more difficult to assert asylum claims
in the U.S.  The new law places draconian time limits and
documentation requirements on asylum claims.  Anybody considering
whether to file should accelerate their process without delay! 
A.S.L.

International Notes

Amnesty International released a report prepared by its British
affiliate documenting continuing targeting of gay people for
torture, imprisonment and death in many parts of the world.  The
report said that gay men and lesbians face persecution of some sort
in up to 60 countries, noting that Colombian death squads target
gay men and transvestites and that Iran punishes gays with the
death penalty.  The report singled out South Africa for
commendation for including a ban on sexual orientation
discrimination in its constitution, the only nation to do this, and
also noted state gay rights laws in the U.S.  Amnesty called for
decriminalization of consensual sodomy; a minority of U.S. states
join with such progressive nations as Nigeria, Romania and India in
continuing to penalize gay sex.  __Reuters__, Feb. 26.  

The Gay and Lesbian Center in Paris announced Jan. 28 that a gay
Algerian has become the first person to win political asylum in
France based on grounds to fear his life was in danger because of
sexual orientation.  L. Faysal, who had been a political activist
in Algeria, was beaten and threatened with death by Muslim
fundamentalists.  __San Francisco Examiner__, Jan. 29; __Washington
Blade__, Feb. 7.

The European Court of Human Rights upheld Britain's right to
prosecute participants in concensual sadomasochistic sexual
activity under criminal law.  Unanimously rejecting the appeal of
a sentence by three gay men, Colin Laskey, Anthony Brown, and
Roland Jaggard, who were each convicted for engaging in consensual
activity that included inflicting genital injuries, whipping and
branding, the court opined that "the state was unquestionably
entitled to regulate the infliction of physical harm through the
criminal law.  The determination of the tolerable level of harm
where the victim consented was primarily a matter for the state's
authorities."  According to a Reuters story, all three men lost
their jobs after their convictions and one required extensive
psychiatric treatment.  The court premised its decision as
"necessary in a democratic society for the protection of health,"
and rejected the argument that British courts were systematically
biased against gays.  __Reuters__, Feb. 19.  __Laskey, Jaggard &
Brown v. United Kingdom__ (1997), Eur. Ct. H.R. Ser. A.  

In a decision loosening justiciability requirements, the High Court
of Australia ruled Feb. 26 in __Croome v. State of Tasmania__ that
the plaintiffs, members of a lesbian and gay rights organization,
could maintain an action challenging Tasmania's refusal to repeal
its sodomy law, which has been declared violative of international
human rights law in international tribunals and which the
plaintiffs contend to be inconsistent with a federal law enacted in
reaction to the international ruling.  The State argued that
because none of the plaintiffs alleged that they had been
personally prosecuted, they had not presented a justiciable
controversy.  The High Court found that it was proper to allow a
declaratory judgment action to proceed, quoting the plaintiffs'
affirmations of how the sodomy law had a chilling effect on their
lives.  Wrote the court: "The conduct by the plaintiffs of their
personal lives in significant respects is overshadowed by the
presence of [these criminal laws].  The policy of the law which
animates the operation of the Australian legal system includes the
encouragement, and indeed the requirement, of observance of the
law.  That particularly is so of the norms of conduct required or
forbidden by the criminal law.  Breach thereof is attended by risk
of prosecution and punishment and also may have consequences for
the broader civil legal order as it applies to the individual. 
Thus, doctrines turning upon illegality play a significant part in
the operation of the law. . .  In the circumstances of this case,
the claim to declaratory relief is not to be denied at the
threshold on the ground that relief is sought prematurely and to
establish the legal character of a state of affairs not yet come to
pass."  The court dismissed the state of Tasmania's application to
end the lawsuit. * * * Other Australia Notes:  The __Advocate__
(Feb. 18) reported that the country's family tax initiative,
effective Jan. 1, gives a rebate to all couples with children who
earn less than $70,000 a year -- including gay couples.  The
__Washington Blade__ (Jan. 31) reported that a committee of
attorneys general has recommended lowering the age of consent for
gay sex, now 18, to match the age of consent for heterosexual sex,
now 16.  The Queensland Anti-Discrimination Tribunal ruled Jan. 31
that a fertility clinic acted illegally when it refused service to
a lesbian who wanted to conceive a child.  Tribunal President
Roslyn Atkinson said in the decision: "There are apparently no
official guidelines which say that [alternative insemination] is
only available in Queensland to married couples and couples in
stable heterosexual relationships."  Queensland Health Minister
Mike Horan immediately called for legislation prohibiting fertility
clinics from serving lesbians, but the federal Health Minister,
Michael Wooldridge, said that the government will consider
extending Medicare coverage for fertility services for lesbians. 
__Washington Blade__, Feb. 14.

The Icelandic Parliament adopted two laws benefiting lesbian and
gay residents late in 1996, according to Samtoekin '78, the
country's gay rights organization.  One measure criminalizes
actions that humiliate, degrade, slander or defame an individual or
group because of sexual orientation; the second forbids
discirmination in services and public accommodations on account of
sexual orientation.  Iceland previously adopted a domestic
partnership registration system, and local activists are pushing
for the right of joint adoption of children by gay couples.  

A new penal code took effect in Russia on Jan. 1 which
decriminalizes consensual homosexual conduct among adults in
private.  __Advocate__, Feb. 18.  A.S.L.

Professional Notes

Supporters of civil rights and civil liberties mourned the death of
Thomas B. Stoddard, 48, from AIDS on Feb. 12.  Stoddard was a
pioneering leader in the struggle for lesbian and gay rights, civil
liberties and privacy.  As legislative director of the N.Y. Civil
Liberties Union, executive director of Lambda Legal Defense &
Education Fund, director of the Campaign for Military Service, and
vice-president of the American Foundation for AIDS Research
(AMFAR), Stoddard played a key role in the important struggles of
the 1970s, 1980s and 1990s.  He was also among the first to teach
a gay rights law course, at N.Y. University in the early 1980s,
where he continued to serve until recently as an adjunct professor
and also taught courses on legislation.  NYU Law School established
the Tom Stoddard Fellowship in 1996, to fund law students working
with gay rights public interest organizations.  Perhaps most
importantly, as an eloquent public spokesperson, Stoddard provided
an important role model for lesbians and gay men in the legal
profession and for lesbian and gay youth seeking positive images in
the media.  The loss is enormous.  Commenting on his death, the
__New York Times__ stated: "Few New Yorkers -- or few Americans,
for that matter -- have done as much to bring issues affecting gay
men and lesbians into the mainstream of legal and political debate,
or been as successful at changing laws and attitudes." (Feb. 19) 
Stoddard is survived by his spouse, Walter Rieman, a partner at
Paul Weiss Rifkind Wharton & Garrison in New York, and other family
members.

Another major loss for the community was the death Feb. 10 of Duke
Comegys, 55, a Los Angeles activist who had attended Columbia and
Harvard Law Schools.  Comegys was a co-founder of AIDS Project Los
Angeles and MECLA, a leading gay rights political action committee,
and was also an active fundraiser for the LA Gay and Lesbian
Community Services Center.  He died from complications following
gall bladder surgery.  __LA Times__, Feb. 15.

Last month we noted that __The American Lawyer__ singled out
Beatrice Dohrn, Legal Director of Lambda Legal Defense Fund, as one
of the top 45 young attorneys in the country.  Two other openly
lesbian attorneys were also listed by __The American Lawyer__: Chai
Feldblum, a Georgetown law professor who was a key player in the
drafting and passage of the Americans With Disabilities Act, a
legal advisor to the Campaign for Military Service during the 1993
battle over gays in the military, and who continues to play a major
role in federal legislative efforts affecting gay rights and AIDS;
Gigi Sohn, a public interest lawyer in the telecommunications
field, former co-president of GAYLAW, Washington, D.C.'s,
lesbian/gay bar association, and a member of the D.C. Bar's Task
Force on Sexual Orientation and the Legal Workplace.  __Washington
Blade__, Jan. 31.  

The National Association for Law Placement's Dec. 1995 decision to
add "sexual orientation" to demographic information requested from
law firms has caused consternation in some parts of the legal
profession.  The Commmittee on Lesbians and Gay Men in the Legal
Profession of the Association of the Bar of the City of New York is
soliciting input from law firms and individual lawyers to
facilitate and standardize the collection of such information. 
Anyone interested in this issue may contact committee members
Andrew Chapin (212-854-2666) or Michael Melcher (212-450-4719).
A.S.L.

Lambda Hiring for Atlanta Office

Lambda Legal Defense and Education Fund is now accepting
applications for the positions of Managing Attorney and Staff
Attorney in the new office it will be opening in Atlanta. 
Qualifications for the Managing Attorney include 5 years of
litigation experience and some management experience.  Leadership,
excellent speaking and writing skills are required.  Awareness of
and commitment to lesbian, gay, and HIV/AIDS rights, and dedication
to multiculturalism are also required.  Experience in communities
of color preferred.  Salary from $50,000 depending on experience,
with excellent benefits.  Qualifications for the Staff Attorney are
a minimum of five years of legal experience, including some
litigation, leadership, excellent speaking and writing skills, and
the other qualifications noted above for the Managing Attorney
position, with starting salary from the mid-$40,000 range,
depending on experience.  For both positions, resumes and writing
samples should be sent by April 18, 1997, to: Beatrice Dohrn,
Lambda LDEF, 120 Wall Street, Suite 1500, New York NY 10005. 
A.S.L.

AIDS AND RELATED LEGAL NEWS BRIEFS 

California Supreme Court Refuses to Apply "Impostor Defense" In
AIDS Insurance Fraud Case

The California Supreme Court unanimously rejected an appeal by an
insurer from a lower court decision requiring payment of benefits
to the beneficiary of a person with AIDS, even though the PWA sent
an impostor to his medical exam to hide his HIV-status.  __Amex
Life Assurance Co. v. Superior Court__, 1997 WL 74516 (Feb. 24).  

Jose Morales knew he was HIV+ when he applied for life insurance. 
"He lied on the application form and sent an impostor to take the
mandatory medical examination," wrote Justice Chin, summarizing the
factual findings.  "With minimal effort, Amex could have discovered
the fraud even before it issued the policy, but instead it
collected the premiums for more than two years until Morales died,"
and then when the beneficiary filed a claim, discovered the fraud
and denied the claim.  Amex argued that it should have the benefit
of the so-called impostor defense, recognized by some states, where
a person applies for life insurance and takes the medical exam but
names another person as the insured under the policy.

Chin wrote that the California court did not have to decide whether
to recognize the impostor defense, because it did not fit the facts
of this case, as Morales had filed the application to insure
himself, not another person.  "The fraud," wrote Chin, "though
abhorrent and clearly justifying rescission of the policy during
the two-year contestability period, is not qualitatively different
from other types of fraud California courts have held may not be
used to contest coverage once the contestability period has expired
if the premiums have been paid.  Therefore, Amex, which did nothing
to protect its interests but collect premiums until Morales died
after the contestability period, may not longer challenge coverage
on the basis that an impostor took the medical examination."  

Insurance companies could avoid this problem by not including
contestability period provisions in their policies, but they are in
the business of trying to sell policies, and a non-contestability
feature is a selling point that they apparently value highly enough
to risk getting stuck in some cases.  A.S.L.

Minnesota Supreme Court Upholds Enhanced Sentence For Brutal Rape
by PWA

The Minnesota Supreme Court held that a greater-than-triple
durational departure in sentencing is warranted in the rare case
when the defendant forcibly raped a woman under severe aggravating
circumstances including the defendant's particular cruelty and
knowledge that he was in the full-blown stages of AIDS, even though
the victim's HIV-status has not been determined.  __Perkins v.
State__, 1997 WL 35786 (Jan. 30).  

In September 1993, Donald Perkins met A.L. in an Owatonna bar. 
Both played pool and had a few drinks.  Later he asked her for a
ride to his hotel room where he needed to retrieve some books and
tend to his pets.  Upon arrival in the lobby, A.L. stepped to the
restroom while Perkins paid for another night's stay and a six-
pack of beer.  The desk clerk told him that they removed his
belongings from the room and sent his pets to the local humane
society.  Perkins lost his temper and was "ranting and raving" when
A.L. returned.  Perkins and A.L carried his confiscated possessions
back to his room and, once inside, Perkins offered A.L. a beer and
either turned on the TV or put on some music.  As she opened the
beer and lit a cigarette, she realized that "it seemed too fishy"
and said she thought she should go.  Perkins would not let her out
the door.  He then beat and raped her and repeatedly told her that
he should kill her.  After Perkins completed the sexual assault, he
choked her to the brink of unconsciousness and tied her up. 
Perkins then took A.L.'s money, car keys, food stamps and jewelry,
left the room and drove off in her car. A.L. managed to summon help
and later that day state troopers spotted her abandoned car with
her possessions inside.  Perkins was picked up two weeks later in
Nebraska.  

Perkins admitted to the car theft but denied all other guilt,
claiming that the sex was consensual, that A.L.'s husband caused
A.L.'s  bruises, and that Perkins told her at least twice of his
HIV status.  Hospital reports confirmed that Perkins did ejaculate
inside her.  A.L. stated that Perkins never told her of his HIV
status and that she learned of it the day after the assault.  She
stated that because of the assault she lost her husband, her
friends, and was fired as a convenience store clerk due to fear of
infection and contamination of products sold there.  She often
worried what would happen to her children if she tested HIV+. 
Besides emotional and societal costs of the assault, A.L. had
clinic and medical expenses that insurance did not cover.  At the
time of the pre-sentence investigation, A.L. had not decided
whether she would be tested.

Before Steele County District Judge Casey Christian, Perkins pled
guilty to one count of first-degree criminal sexual assault. 
Perkins entered his plea pursuant to a form petition that provided
any agreement as to sentence would be a recommendation only and
that the defendant could not withdraw the guilty plea if the court
chose not to follow the recommendation.  The court accepted the
guilty plea, but did not impose the recommended sentence.  Instead,
it gave Perkins the statutory maximum of 30 years, a
greater-than-triple durational departure from the presumptive
sentence. 

Judge Christian observed that "HIV [] and AIDS is a death
sentence," and noted that while Perkins denied the rape, the court
had accepted his guilty plea under the facts as stated in the
police reports and would sentence him according to those facts. 
Christian justified the upward sentence as follows: "I cannot
fathom on the face of this earth if there was a more devastating
offense to a victim than being sexually assaulted by a person with
AIDS. . ."  The court itemized the collateral acts of brutality
during the rape and the social cost suffered by A.L. and sentenced
Perkins to 20 years in prison and 10 years supervised parole.

Perkins sought post-conviction relief in 1994, seeking to withdraw
his guilty plea on grounds of manifest injustice or, in the
alternative, to have his sentence reduced to the presumptive term. 
The post-conviction court denied his petition, holding that he
failed to show that he mistakenly believed that he could withdraw
his plea if the sentencing judge rejected the recommendation and
recognized that he had "ample opportunity to voice any concerns as
to plea procedure or the departure." Furthermore, the court held
that the sentencing judge did not abuse his discretion in
sentencing Perkins to the statutory maximum.  The Minnesota Court
of Appeals affirmed.

On appeal to the Supreme Court, Perkins argued that the sentencing
judge based the sentence on personal feelings of moral outrage and
on the inference that A.L probably contracted AIDS from Perkins'
assault.  Further, he argued, the case is not one in which
greater-than-double durational departure is appropriate because
both the state and A.L. agreed to the presumptive sentence.  

Justice Anderson, writing for the court and affirming the
post-conviction court's findings, noted that the general rule has
been that when aggravating factors justify upward departure, the
upper limit will be double the presumptive sentence length.
However, "there may well be rare cases in which the facts are so
unusually compelling that an even greater degree of departure will
be justified." __State v. Evans__, 311 N.W.2d 481, 483 (Minn.
1981).  Citing prior cases imposing greater-than-triple and
greater-than-quadruple durational departures involving heinous
sexual assaults, the court concluded that "[f]orcibly raping
someone while knowingly in the full-blown stages of AIDS
constitutes a `rare case' and renders Perkins' crime at least as
severe. . . [and that it] is irrelevant that A.L.'s HIV status is
unknown." 

Perkins also argued breach of promise.  He claimed that because the
state approved the 115-month plea, the state should be estopped
from arguing for affirmance of the upward departure.  The court, in
a rare instance of addressing an argument not raised below (only to
later conclude it was meritless), stated that the state offered the
presumptive sentence "at least appropriate in this case," but not
that it was the only appropriate sentence under the circumstances.
K.J.R.

Oregon Appeals Court Rejects HIV Discrimination Claim

A divided Oregon appeals court rejected an employment
discrimination claim by a woman who alleged she had resigned under
pressure due to her HIV status.  __Doe v. Denny's, Inc.__, 1997 WL
37318 (Or.App. Jan. 29).

Shortly after plaintiff "Jane Doe" began work as a server at
defendant Denny's, she told her supervisor that she had HIV.  The
supervisor said he would need to discuss the matter with the
district manager.  He later called Doe into his office and advised
her of three things: (1) he could not fire her, and did not want to
because she was a good worker, (2) a regular customer knew that Doe
had HIV, had stopped patronizing Denny's, and threatened to tell
other patrons about it, and (3) that this situation would destroy
the business.  The supervisor asked Doe what she wanted to do, and
she resigned.  Denny's wrote a letter of recommendation for Doe,
praising her work and describing her as "a wonderful team player,"
The letter stated Doe was being laid off due to "over staffing." 
Doe later sued Denny's, claiming that she had been constructively
discharged or discriminated against in violation of ORS 659.425,
which prohibits discrimination in the terms, conditions, or
privileges of employment based on physical impairments including
HIV; Doe also moved to compel Denny's to produce a memo between the
supervisor and the manager.

The trial court granted a defense motion for summary judgment, on
the theory that Doe had not produced any evidence that she had been
fired due to her HIV status.  The trial court denied Doe's motion
to compel discovery of the memo, ruling that it was "work product"
and not within any exception that would allow discovery.

Writing for the majority on appeal, Judge Edmonds affirmed,
reasoning that the defendants had not changed the terms,
conditions, or privileges of Doe's employment, and had not
threatened to do so.  Regarding the memo, Edmonds wrote that there
was no evidence that the trial court abused its discretion in
denying the plaintiff's motion.

Judge Warren dissented for a three-judge minority of the court. 
Warren argued that the meeting was calculated to pressure Doe into
resigning, especially given Doe's desire for privacy, and
criticized Denny's for failing to try to find a solution to the
problem instead of leaving it to Doe to decide what she wanted to
do.  As to the memo, Warren wrote that the trial court incorrectly
decided there was no potential waiver of the work-product doctrine,
and therefore failed to exercise its discretion.  O.R.D.

Federal Court Awards Damages on HIV Discrimination Claim

This decision arises out of a 1996 jury verdict finding that Danny
T. Greenway ("Greenway") was wrongfully terminated from his job as
a bartender at the Buffalo Hilton Hotel because he was HIV+, in
violation of the Americans With Disabilities Act (ADA), and
awarding Greenway $65,000 for backpay, $50,000 for future health
insurance premiums, $324,000 in future medication costs, and
$1,000,000 in punitive damages.  After the verdict, the Buffalo
Hilton Hotel moved to amend the judgment to reduce future and
punitive damages, for judgment as a matter of law on backpay and
compensatory damages and for a new trial on punitive damages. 
Greenway cross-moved for pre-judgment interest.  U.S. District
Judge Foschio (W.D.N.Y.) granted Greenway's motion in part and
granted the motion of the Buffalo Hilton in part.  __Greenway v.
The Buffalo Hilton Hotel__, 1997 WL 28943 (Jan. 21).

Greenway had been a bartender at the Buffalo Hilton since 1987.  In 
1992, he went on disability for one month due to fatigue.  When
Greenway applied for disability benefits, the hotel learned of his
HIV status.  Prior to 1992, Greenway always received positive
reviews from his supervisors.  After he returned from disability,
Greenway's reviews suddenly dropped to the second worst in the
hotel.  Further, several complaints were lodged against Greenway,
leading to his termination in 1994.  After he was terminated
Greenway did not work again as a bartender.  He subsequently went
to school to be a machinist, however, he has not secured employment
in that or any other field.

Most of defendant's arguments surrounded the circumstantial nature
of plaintiff's case and plaintiff's failure to mitigate damages. 
However, the court did not find that jury's liability ruling was so
shocking as to require reversal.  Further, the court found that
defendant had failed to show that plaintiff failed to mitigate
damages.  The court found that to prove the failure to mitigate,
defendant would have to show that there were comparable jobs
available in the area.  Defendant failed to so prove.

The ADA limits punitive damages awards, capping such awards for
companies with fewer than 500 employees at $200,000; for larger
companies, the limit is $300,000.  Greenway argued that The Buffalo
Hilton is part of a franchise with thousands of employees and
therefore should qualify for the higher rate.  The court declined
to so find and reduced the punitive damage award to $200,000.  The
court reduced the amount of backpay received by $7,700 to
compensate for money Greenway earned after he was terminated,
leaving a total back pay award of $57,300, and awarded pre-judgment
interest of $3,768.  The court further awarded front pay for six
months in the sum of $10,000.  The court did not disturb the award
for future medical costs or health insurance premiums.  Finally,
the court awarded Plaintiff attorney fees in the sum of $133,705. 
T.V.L.

NY Court Rejects Insurer's Attempt to Evade AIDS Liability

N.Y. Supreme Court Justice George M. Bergerman (Rockland County)
rejected an attempt by an insurance company to stage an "end run"
around the contestability clause in a disability policy by using a
preexisting condition defense to a benefits claim.  In __New
England Mutual Life Ins. Co. v. John Doe__, No. 6241/96 (Feb. 21,
1997), an unpublished decision, Justice Bergerman declined to
follow decisions from other states where courts had accepted the
argument that a preexisting condition could trump the
incontestability doctrine and found that "the `incontestability'
clause of the policy and Insurance Law sec. 3216(d)(1)(B)(i)
constitutes a complete defense to the instant action and that there
is no contractual or statutory basis upon which plaintiff can deny
benefits to the defendants."  The defendant, represented by LeGaL
member Mark Scherzer, who is litigating several of these cases, is
a PWA who was HIV+ at the time he bought the disability insurance
policy, and first applied for benefits more than two years after
the policy's effective date.  The insurer sought a declaration that
it did not have to pay disability benefits to the PWA.  In his
decision, Justice Bergerman noted that two departments of the
appellate division have unequivocally rejected attempts by
insurance companies to overcome the bar of a contestability period
through fraud claims.  A.S.L.

EEOC Issues Enforcement Guidance on Disability Conflict

Attempting to strengthen its position before the federal courts and
to assist individual plaintiffs caught in a dispute between the
courts over eligibility for coverage under the Americans With
Disabilities Act (ADA), the Equal Employment Opportunity Commission
(EEOC) issued a memorandum Feb. 12 explaining its position on a
hotly contested issue: whether individuals with disabilities who
file for disability benefits, alleging that they are unable to
work, are thus disqualified from protection against employment
discrimination under the ADA.  __EEOC Enforcement Guidance on
Disability Representations__, No. 915.002 (to be filed after
Section 902 in Vol. II of the EEOC Compliance Manual) (full text
reported in BNA Daily Labor Report No. 31, Feb. 14, p. E-1).

The EEOC believes that former employees who are receiving
disability benefits should not be precluded from coverage under the
ADA in discrimination claims against their former employers
__solely__ because when filing for benefits they submitted sworn
statements that they were actually disabled from working.  The
heart of the memorandum is an analysis of the caselaw stemming from
__McNemar v. The Disney Store__, 91 F.3d 610 (3rd Cir. 1996), in
which the court held that the plaintiff, an HIV+ individual, was
estopped from alleging that he was a "qualified person with a
disability" who was able to do the job with or without reasonable
accommodation because he had previously filed a sworn statement
seeking disability benefits in which he stated that he was disabled
from gainful employment.  The EEOC explains at length why it
believes the 3rd Circuit is wrong, stressing the need under ADA for
an individualized assessment of a plaintiff's ability to work
rather than reliance on a prior statement submitted in a different
forum for a different purpose.  EEOC instructs its own staff that
persons who are receiving disability benefits may be found
qualified for ADA protection. 

An EEOC enforcement guidance document does not have the status of
formally adopted regulations, and thus does not merit the deference
ordinarily provided to regulations; however, some courts, including
the Supreme Court, have opined at various times that such
interpretations adopted by the agency charged with enforcement of
a statute are to be given some weight by reviewing courts, so
publication of this document may assist some PWAs (and other
persons with disabilities) in their cases. A.S.L.

2nd Circuit Finds Officials Immune from HIV Privacy Suit

The U.S. Court of Appeals for the 2nd Circuit held that state
government officials were entitled to qualified immunity in a 42
U.S.C. sec. 1983 action based on a state official's identification
of the plaintiffs as persons with HIV.  __Doe v. Marsh__, 1997 WL
31582 (Jan. 22).  

Naomi Marsh was co-director of a N.Y. State Education Department
project regarding HIV and AIDS.  In 1992 she authored a manual
about setting up HIV prevention programs and therein acknowledged
the contributions of several people who were living with HIV, among
them the plaintiffs, who were themselves HIV educators.  The
plaintiffs sued Marsh (and other government officials), alleging a
violation of their First Amendment right to privacy.  The District
Court granted summary judgment to the defendants and the Second
Circuit affirmed.  

Assuming without deciding that the plaintiffs had a constitutional
confidentiality-based right of privacy in their HIV status, Circuit
Judge Altimari's opinion turned to the question of qualified
immunity; that is, whether the government officials were
"objectively reasonable" in their belief that their act(s) were
legal.  At the time of the manual's publication, the court held,
the question of what constituted a legal waiver of the right to
privacy was unclear (although post-1992 cases hold that such
waivers must be voluntary, knowing and intelligent).   Under
general legal waiver principles, there was no sufficiently clear
rule defining waiver so that a reasonable official would have
understood that his/her actions violated the constitutional right
of privacy.  In addition, both plaintiffs had publicly
self-identified as HIV+ at seminars and conferences, which could
reasonably have led government officials to believe that they had
made a knowing and voluntary waiver of the confidentiality of their
HIV status.  D.W.

Minnesota Appeals Court Finds No Private Right of Action Under
Patient Bill of Rights

Rejecting an appeal by J.T.P., an HIV+ person whose serostatus was
improperly disclosed to his stepbrother from hospital records, the
Minnesota Court of Appeals ruled Feb. 18 that there is no private
right of action under the state's Patient Bill of Rights, Minn.
Stat. sec. 144.651-.6581, thus upholding the trial court's
dismissal of the case against defendant St. Paul Ramsey Medical
Center.  __J.T.P. v. St. Paul Ramsey Medical Center__, 1997 WL
65511 (not officially published).

J.T.P. tested positive in May 1995.  He disclosed his condition to
some friends and family members, but specifically requested that
his stepbrother, James Larmore, not be informed.  In August, he ran
into Linda Larmore, James's ex-wife, who was a ward secretary at
the hospital.  She accessed his records, discovered he was HIV+,
and told her ex-husband, who then further disclosed the information
to his new wife and J.T.P.'s 14-year old niece.  J.T.P. sued Linda
Larmore and the hospital, claiming violations of the Minnesota
Government Data Practices Act and the Patients Bill of Rights, as
well as slander per se.  

This decision applies on to the hospital's motion to dismiss the
case against it.  J.T.P. abandoned the slander per se count, and
also conceded that the hospital, a private institution, was not
covered by the data practices law.  Finding that there was no
private right of action under the Patients Bill of Rights, the
trial court dismissed the case against the hospital.  

Writing for the appeals court, Judge Davies found that the
legislature created an administrative process in the Health
Department for complaints of violations of the Patients Bill of
Rights.  Under the circumstances, the court deemed it inappropriate
to imply a private right of action.  Even if J.T.P.'s claim was
conceptualized as a common law tort suit for invasion of privacy,
he would be out of luck because Minnesota does not recognize that
tort.  J.T.P.'s case against Linda Larmore continues, but he has
lost his deep pockets defendant.  A.S.L.

Florida Appeals Court Remands Sentence for Biting

The Florida District Court of Appeal, 5th District, upheld
conviction of a man accused of biting a police officer and then
stating he was HIV+, but remanded for resentencing.  __Lynn v.
State__, 1997 WL 14131 (Jan. 17).  William Lynn subsequently denied
that he made the comment about being HIV+ to his probation officer,
but his record contains a notation that he made such a comment,
which the court seemed to think was dispositive of the matter. 
(Nobody lies on a file, right?)  

There was a plea bargain under which the prosecutor was supposed to
recommend probation, but in his recommendation to the court the
prosecutor pointed out the sentencing guideline on this offense and
had the bitten police officer testify.  Lynn contested the court's
20-month sentence, stating that he was entitled to the benefit of
his bargain with the prosecutor, and also that the sentence was
unduly harsh under the circumstances.  Writing for the court, Judge
Peterson pointed out that Lynn made no motion to withdraw his plea
prior to the trial court's ruling, and observed that "the deputy
testified that he still had scars on his thumb and had to go
through periodic testing because Lynn told him he was HIV positive. 
Both the deputy and his family had experienced significant
psychological and emotional trauma as a result of Lynn's attempt to
aggravate the effect of his bite." Thus, Lynn's objections were
disputed.  However, the trial court had awarded too many points
under the sentencing scoring system in light of the minor severity
of the actual injury, so the matter was remanded for resentencing.
A.S.L.

Bloody French Fries Insufficient for AIDS Phobia Claim Against
McDonald's

A man asserted a claim for AIDS phobia against a McDonald's
restaurant based on finding some blood on the french fries he had
been eating.  The man has repeatedly tested negative.  Justice
Underwood of the N.Y. Supreme Court in Suffolk County dismissed his
claim, finding a failure to allege actual exposure to HIV, and was
affirmed by the Appellate Division, 2nd Department, in a per curiam
opinion.  __Montalbano v. Tri-Mac Enterprises of Port Jefferson,
Inc.__, 1997 WL 47933 (Feb. 3).

The appellate court pointed out that there is now a body of caselaw
in New York on AIDS phobia claims, setting out the following two
requirements for such claims: first, the actual or probable
presence of HIV when the alleged exposure occurred; second, that
there was some injury, impact, or other plausible mode of
transmission whereby HIV contamination could with reasonable
likelihood enter the plaintiff's bloodstream.  Neither of these
requirements were met here, an expert witness having testified for
McDonald's that "it was most unlikely that HIV could have entered
the plaintiff's bloodstream through his oral mucosa."  The
plaintiff's failure to have his fries tested for HIV antibodies
left him without any basis for satisfying the first requirement.

We know that eating french fries can be dangerous to our health,
but apparently not as a source of AIDS, even if the ketchup looks
suspect!  A.S.L.

N.Y. Appellate Court Finds HIV Misdiagnosis May Be Malpractice

The N.Y. Appellate Division, First Department, ruled Jan. 23 that
the trial court had improperly dismissed a malpractice claim
against a doctor (now deceased) who allegedly misinformed the
plaintiff that he was HIV+ and solicited sexual favors from the
plaintiff's long-term partner.  __Harvey v. Cramer__, 1997 WL
24536.  The brief per curiam opinion reveals little beyond the bare
allegations of the complaint.  However, the trial court had
apparently agreed with the defendant's argument that mistakenly
informing a patient that he is HIV+ due to a mixup of files does
not give rise to an ordinary negligence claim.  Said the appellate
division, "plaintiff here was clearly the decedent's patient,
expecting diagnosis and treatment of any medical conditions,
functions to which the maintenance of medical records `bears a
substantial relationship.'"  

At the same time, the court denied defendant's appeal of the trial
court's ruling allowing plaintiff to proceed on a claim of
intentional infliction of emotional distress. "The distress
resulting from a negligent misdiagnosis of HIV is actionable, and
the evidence tending to show that the decedent advised not only
plaintiff of his HIV status but also plaintiff's long-term partner,
and that the decedent provided free medical care to the partner in
exchange for sexual favors, is sufficient to raise an issue of fact
as to whether the misdiagnosis was intentional, as alleged.  If
intentional, it would satisfy the outrageousness requirement of a
cause of action for intentional infliction of emotional distress." 
The court found that unresolved factual issues precluded ruling on
the timeliness of the emotional distress claim on summary judgment. 


The plaintiff is represented by LeGaL member Steven A. Rosen.
A.S.L.

N.Y. Court Requires Registration and HIV Test in Plea Bargain

A defendant who pled guilty to statutory rape without actually
admitting guilt is nevertheless subject to the requirements of sex
offender registration and HIV testing, according to a New York
trial court in Staten Island. __People v. J.G.__, 1996 WL 775990
(N.Y.Sup., Richmond Co. Dec. 30, 1996).

Defendant J.G. was indicted in 1994 of repeatedly raping his 15-
year-old daughter, a girl of "limited intelligence."  J.G.
maintained he was innocent, but accepted a plea bargain to one
count of third degree rape.  The Sex Offender Registration Act
(SORA) provides for local police notification of the release of all
sex offenders; the police may disclose the identities of high risk
offenders to the public.  Not accepting responsibility for the
offense is considered a risk factor, although the court ruled that
J.G. was, on balance, a low-risk offender.  N.Y. Crim. Proc. Law
sec. 390.15, which took effect in 1995 and applies to all persons
adjudicated following its effective date,  states that where a
defendant is convicted of a crime involving sexual intercourse, the
court must, on request of the victim, order the defendant to
undergo an HIV test; the results are disclosed only to the victim,
who may only discuss them with a doctor, an attorney, and immediate
family.  J.G. argued that his refusal to confess should not have
been considered a risk factor, and he should not be required to
undergo the HIV test because (1) he was never proved guilty, (2)
the test would be an unreasonable search and seizure, and (3) the
test requirement amounted to an ex post facto law because it
applied to crimes that occurred before its enactment.

Reasoning that "the defendant cannot have it both ways," Judge
Maltese ruled that J.G. must accept the consequences of his guilty
plea.  These include registration, including consideration of his
refusal to confess as a risk factor, and the HIV test. 
Acknowledging the risk that the victim's family might illegally
publicize J.G.'s HIV status, Maltese nevertheless ruled that the
test was not an unreasonable search because, although it invaded
the defendant's privacy, it did so only to the extent necessary to
notify the victim.  Maltese cited __Collins v. Youngblood__, 497
U.S. 37 (1990), for the proposition that the Constitution's ex post
facto prohibition applies only to penal statutes and not to mere
procedural changes; observing that voluntary blood tests are
commonplace and not painful, Maltese concluded that the test was a
procedural requirement rather than a punishment.  O.R.D.

Massachusetts High Court Reinstates Rape Conviction in Case
Presenting AIDS Issues

In a unanimous decision, the Supreme Judicial Court of
Massachusetts reversed the court of appeals and affirmed
convictions on several counts of an indictment against a person
whose HIV-status became an issue in the trial.  In so doing, the
court rejected claims that the trial court's handling of the AIDS
issues prejudiced the defendant and prevented a fair trial from
being held.  __Commonwealth v. Martin__, 1997 WL 78345 (Feb. 26).

The victim had a lengthy relationship with the defendant prior to
his earlier incarceration.  She claimed that while he was in jail,
he told her that he was HIV+.  She testified that she was
frightened of him and planned to be out of town when he was
released, but he was released ahead of schedule and showed up at
her apartment in the early hours of May 17, 1991, when she was
coming home from a bar.  She claims he came up behind her when she
was opening her door, pushed her into the apartment, began yelling
at her, called her names, and accused her of going out with other
men.  She testified that he punched her twice, removed her
clothing, raped her, pulled her down the hallway to her bedroom,
raped her again, performed oral sex on her, and then raped her a
third time.  The defendant ordered the victim to ignore her door
buzzer, which rang off and on for the next few hours, but he
allowed her to answer it at 7 a.m., when she showed her injuries to
a friend who was at the door and with his assistance escaped from
the apartment to a neighbor, where they called the police.

At trial, the defendant presented a witness who testified about an
earlier conversation with the victim in which she said that she
loved the defendant and he would be staying with her after leaving
prison.  To counter the effect of this testimony, the victim
testified, over the defendant's objection, that he had told her
while in prison that he was HIV+, and she testified that she was
terrified of contracting AIDS from him.  When a deputy reported to
the court that the defendant had been "acting up" and had injured
himself during a lunch break in the trial, the judge ordered
special measures in the courtroom, which involved placing some
distance between the defendant and his attorney and placing the
defendant in leg irons, concealed from the jury by a blanket.  When
charging the jury, the judge mentioned that he would not send the
"rape kit" into the jury room unless it was requested, in which
case he could provide gloves and instructions on how to handle it,
and he also remarked that gloves should be used in handling
clothing exhibits that were available for the jury.

The court of appeals found fault with the trial judge's handling of
the AIDS issues, finding that the trial judge should have given a
cautionary instruction warning the jury not to allow its feelings
about AIDS to interfere with its fact-finding function, and also
raising problems with the special precautionary measures and
comments during the charge.  Disagreeing with the court of appeals,
the Supreme Judicial Court reinstated the guilty verdicts, in an
opinion by Justice Charles Fried.

Fried pointed out that the defendant had not requested a cautionary
instruction during the trial, and observed that the special
security measures taken by the judge, which were provoked by the
defendant's conduct, were carefully negotiated with the attorneys
to minimize any prejudice to the defendant.  Referring to an
earlier case relied upon by the defendant, Fried cautioned that the
court's dicta in that case were not intended to create firm,
inflexible rules regarding the use of leg-irons in the courtroom
that would mandate reversing a conviction even where the evidence
overwhelmingly supported the defendant's guilt.  Fried also noted
that at the time of the charge the defendant did not object to the
judge's remarks about the exhibits, and in any event those remarks
did not strike the Supreme Judicial Court as being prejudicial. 
A.S.L.

Oregon Supreme Court Upholds Malpractice Verdict Against AIDS
Doctor

Finding that the trial court's denial of a discovery request had
not constituted prejudicial error sufficient to upset a substantial
jury verdict, the Oregon Supreme Court unanimously affirmed an
award of almost $180,000 against a doctor who mistakenly prescribed
a drug for an AIDS patient to which the patient was allergic. 
__Baker v. English__, 1997 WL 74182 (Feb. 21).  

Timothy Baker and his wife were both infected with HIV sometime in
the 1980s, and became Dr. English's patients in 1990.  Soon
thereafter Mrs. Baker died from AIDS.  In November 1990, English
prescribed Cotrim, a sulfa-based medication for Mr. Baker as
prophylaxis against pneumocystis pneumonia, failing to note from
the medical chart that Mr. Baker was allergic to sulfa.  Mr. Baker
had a severe allergic reaction, requiring extensive
hospitalization, and came close to dying.  In 1992, Baker filed
this malpractice action against Dr. English.  

During discovery, English's lawyer subpoenaed records of a
psychologist who had counseled Baker and his wife.  Plaintiff
complied with the subpoena, but redacted the records to remove all
references to counseling prior to the date when Cotrim was
administered to Mr. Baker, on grounds of relevance and privacy. 
Defendant moved to compel production, but the trial court denied
the motion.  This denial formed the basis for the appeal.  The
court of appeals found that the evidentiary ruling was erroneous,
and remanded for a new trial on damages.  

The Supreme Court agreed that the ruling was erroneous, but found
that it was not prejudicial, noting that the information in the
records that defendant contended could have been useful at trial
was "qualitatively indistinguishable" from information that was in
Dr. English's possession at the relevant time.  Thus, the trial
verdict was affirmed.  A.S.L.

Arkansas Appeals Court Upholds 30-Year Sentence For Exposing a
Person to HIV

Upholding a 30-year sentence, the Arkansas Court of Appeals
affirmed the conviction of Pierre Weaver for exposing another to
HIV in violation of Ark. Code Ann. sec. 5-14-123.  Weaver defended
himself pro se at trial, resulting in an appellate decision that is
frustrating to read from the viewpoint of due process.  __Weaver v.
State__, 1997 WL 79784 (Feb. 26).

According to the court's opinion by Judge Crabtree, Weaver was
"listed as a contact for HIV and was tested for the virus at the
Sebastian County Health Department at the request of Gary Wicke, an
investigator for the Health Department." He tested positive and was
notified on Aug. 26, 1993, at which time Wicke advised him that he
must inform any potential sex partner that he was HIV+.  Weaver was
subsequently prosecuted when a woman came forward claiming he had
infected her without disclosing his HIV-status.

Weaver, defending himself at trial, objected when the State began
to question a witness who had participating in administering an HIV
test for the victim.  However, it is clear from reading the court's
account of the objection and colloquy with the judge that Weaver
was incapable of articulating the grounds for his objection, which
was overruled.  When Weaver attempted to cross-examine the victim
about her prior sexual partners, the court sustained the State's
objection to relevance, rejecting Weaver's attempt to articulate
the argument that having introduced the victim's HIV-status, it
might be relevant to determine whether she could have been infected
by somebody else.  Finally, testifying in his own defense, Weaver
admitted having intercourse with the woman but stated that he had
informed her, as required by law, that he was HIV+.  The State then
called Wicke as a rebuttal witness, testifying over Weaver's
objection that when Weaver was tested, he told Wicke that if he
tested positive "he would give HIV to everyone he could."  This
potential testimony had not been disclosed to Weaver prior to
trial.

Weaver argued on appeal that the trial court erred in allowing 
testimony about the victim's HIV status, because this was
irrelevant to the charge; that the State having opened the door by
establishing the victim's HIV-status, Weaver should have been
allowed to question her about her prior sexual partners; and that
it was improper to admit Wicke's "surprise" rebuttal testimony. 
The court rejected all these arguments, finding that Weaver failed
to make clear to the trial court the basis of his objection to the
testimony, that the prior sexual history of the victim was
generally not considered relevant, and that Wicke's rebuttal
testimony was an appropriate response to the "new matter" presented
in Weaver's own testimony.  A.S.L.

Colorado Appeals Court Finds No Penalty for Employer That Refused
to Pay for HIV Test

Finding that there was a legitimate dispute as to whether an HIV-
test ordered by the plaintiff's doctor after she suffered a serious
industrial accident was work-related, the Colorado Court of Appeals
affirmed an administrative ruling that the employer was not
obligated to pay a penalty to the employee for contesting her
claim.  __Sears v. Penrose Hospital__, 1997 WL 70825 (Feb. 20). 
The ALJ did order the employer to pay the bill for the test.  On
appeal, the court agreed with the Industrial Claim Appeals Office
in upholding the ALJ's order.  "Here, substantial evidence,
consisting of the physician's reports, supports the ALJ's finding
that employer's failure to pay for the HIV test was based upon a
legitimate controversy," wrote Judge Davidson for the court. 
"Although claimant argues that employer did not sufficiently
investigate its liability for the bill, we conclude that
substantial evidence also supports the ALJ's finding that employer
took reasonable action."  A.S.L.

AIDS Law & Society Notes

For the first time since the government began collecting AIDS
statistics in the early 1980s, the number of deaths from AIDS
reported nationally has declined.  The drop-off was about 12
percent comparing the first six months of 1996 to the first six
months of 1995, at a time when the number of new cases being
reported continued to rise.  Interestingly, the decline predated
more widespread availability of protease inhibitors, and thus may
be partly attributable to improvements in AIDS treatment prior to
these widely-hailed new developments.  (Last month we reported that
NY City health officials had noted an even sharper decline in AIDS
deaths in New York last year, also mainly predating the
availability of the new drugs.)  This suggests that an even more
precipitous drop in AIDS deaths may be found when statistics are
complete for the second half of 1996.  Dr. John Ward, a CDC AIDS
expert, warning against complacency, stated: "The decline in deaths
leaves more people living with AIDS and HIV infection.  We do not
want to be a wet blanket here, but we still need programs that
assure good access to treatment and care for infected people," and
President Clinton reacted to the data by indicating that it was
encouraging but adding: "It is also clear that the AIDS epidemic is
not over." __NY Times__, Feb. 28.  Clinton's proposed 1998 fiscal
year budget proposes a 3 percent increase in discretionary spending
for AIDS research, care and treatment programs, and a new
initiative to help those whose health is improving return to the
workforce.  __AIDS Policy & Law__, Feb. 21.  

In __Doukas v. Metropolitan Life Insurance Co.__, 65 USLW 2429, 6
A.D. Cases (BNA) 262, 1996 WL 767428 (Dec. 19), U.S. District Judge
Devine (D.N.H.), ruling on cross-motions for summary judgment,
found that Title III of the Americans With Disabilities could apply
to an insurance company's decision to deny an application for
mortgage disability insurance based on a medical impairment of the
applicant.  A question still unsettled under the ADA is the degree
to which insurance companies are restricted by the ADA in making
decisions about whom to sell insurance.  Judge Devine comes down on
the side of those who argue that the public accommodations
provisions of Title III apply not only to physical access to an
insurance company's office, but also to refusals to sell insurance
coverage without adequate justification.  (The plaintiff's
disability in this case is a history of mental illness known as
bipolar disorder for which she had been taking lithium for eight
years.)  The court held that factual questions needed to be
resolved, making the case inappropriate for summary disposition.

In __Goldsmith v. Nickels__, 1997 WL 38086 (Air Force Ct. of Crim.
App., Jan. 9), the court held that it did not have jurisdiction to
deal with a complaint by an HIV+ prisoner at the U.S. Military
Disciplinary Barracks at Ft. Leavenworth, Kansas, that he was being
deprived of drugs prescribed by his doctor to deal with
opportunistic infections of AIDS. A.S.L.

PUBLICATIONS NOTED 

1996 LAW NOTES CASE TABLE IS PUBLISHED

The 1996 Case Table for __Lesbian/Gay Law Notes__ is now available. 
It can be found archived on the World Wide Web in the Queer
Resources Directory.  Individual copies can be obtained via e-mail
or regular mail from LeGaL.  Contact our Office Assistance, Daniel
Schaffer, at 212-353-9118 or le-gal@interport.net.  Those obtaining
__Law Notes__ through their local lesbian/gay bar organization
should contact their organization, which has received a master
copy.  Copies have been mailed to all institutional subscribers. 
* * *  Lawyers and law students who read __Law Notes__ are welcome
to become contributing writers.  Contact Art Leonard at
ASLeonard@aol.com or ALeonard@nyls.edu, or call 212-431-2156.

LESBIAN & GAY & RELATED LEGAL ISSUES: 

Brandes, Joel R., and Carole L. Weidman, __Same-Sex Marriage__,
NYLJ, 1/28/97, p. 4 (Column: Law and the Family) (asserts that
recognition of out-of-state marriages does not involve the Full
Faith and Credit Clause of the US Constitution).

Cannon, Robert, __The Legislative History of Senator Exon's
Communications Decency Act: Regulating Barbarians on the
Information Superhighway__, 49 Fed. Comm. L. J. 51 (Nov. 1996).

Christie, Nigel, __Comment: Thinking About Domestic Violence in Gay
Male Relationships__, 4 Waikato L. Rev. 180 (1996).

Halley, Janet E., __The Status/Conduct Distinction in the 1993
Revisions to Military Anti-Gay Policy__, 3 GLQ 159-252 (1996) (a
brilliant dissection of the anti-gay military policy, especially
noteworthy for its close look at several military discharge cases
which the government now relies upon to claim that the current
policy does not create an irrebuttable presumption).

Jacobs, Andrew M., Romer__ Wasn't Built in a Day: The Subtle
Transformation in Judicial Argument Over Gay Rights__, 1996 Wis. L.
Rev. 893 (excellent review of judicial precursors of __Romer__
decision).

Johnson, Nicholas J., __Plenary Power and Constitutional Outcasts:
Federal Power, Critical Race Theory, and the Second, Ninth, and
Tenth Amendments__, 57 Ohio St. L. J. 1555 (1996).

Johnson, Peter, __Pornography Drives Technology: Why__ Not__ to
Censor the Internet__, 49 Fed. Comm. L. J. 217 (Nov. 1996).

Li, Katy Chi-Wen, __The Private Insurance Industry's Tactics
Against Suspected Homosexuals: Redlining Based on Occupation,
Residence and Marital Status__, 22 Am. J. L. & Med. 477 (1996).

Millbank, Jenni, __From Butch to Butcher's Knife: Film, Crime and
Lesbian Sexuality__, 18 Sydney L. Rev. 451 (Dec. 1996).

Myers, Jennifer L., David Sonenshein, and David N. Hofstein, __To
Regulate or Not to Regulate Attorney-Client Sex? The Ethical
Question in Pennsylvania__, 69 Temple L. Rev. 741 (Summer 1996).

Nesson, Charles, and David Marglin, __The Day the Internet Met the
First Amendment: Time and the Communications Decency Act__, 10
Harv. J. L. & Tech. 113 (Fall 1996).

Papish, Pamela J., __Homosexual Harassment or Heterosexual
Horseplay? The False Dichotomy of Same-Sex Sexual Harassment Law__,
28 Col. Hum. Rts. L. Rev. 201 (Fall 1996).

Reed, Cynthia M., __When Love, Comity, and Justice Conquer Borders:
INS Recognition of Same-Sex Marriage__, 28 Col. Hum. Rts. L. Rev.
97 (Fall 1996).

Rovella, David E., __Same-Sex Harassment Suits on Rise__, Nat'l L.
J., 2/10/97, p.1.

Schachter, Jane S., __Skepticism, Culture and the Gay Civil Rights
Debate in a Post-Civil-Rights Era__, 110 Harv. L. Rev. 684 (Jan.
1997) (Review Essay on Sullivan's __Virtually Normal__ and Vaid's
__Virtual Equality__).

Strasser, Mark, __Legislative Presumptions and Judicial
Assumptions: On Parenting, Adoption, and the Best Interest of the
Child__, 45 U. Kans. L. Rev. 49 (Nov. 1996) (revised version of
chapter from Strasser's forthcoming book, __Legally Wed: Same-Sex
Marriage and the Constitution__, Cornell Univ. Press, spring
1997)).

Swan, George Steven, __The Political Economy of State Democracy:__
Romer v. Evans, 7 Seton Hall L. Sch. Const. L. J. 1 (Fall 1996)
(Detailed exposition of __Romer__ litigation, followed by an
analysis of the Court's function in this case from the perspective
of political economy).

Waaldijk, Kees, __Free Movement of Same-Sex Parents__, 3 Maastricht
J. European & Comp. L. 271 (1996).

Walker, Kristen, __The Importance of Being Out: Sexuality and
Refugee Status__, 18 Sydney L. Rev. 568 (Dec. 1996).

__Student Notes & Comments:__ 

Bruce, Teresa M., __Doing the Nasty: An Argument for Bringing Same-
Sex Erotic Conduct Back Into the Courtroom__, 81 Cornell L. Rev.
1135 (July 1996) (It's not what you think, folks, so get your heads
out of the gutter!  Cogent commentary on the status/conduct
distinction and how its use in gay rights litigation may not be in
the best interests of gay people in the long run).

Cork, Kerry, __Test-Tube Parents: Collaborative Reproduction in
Minnesota__, 22 Wm. Mitchell L. Rev. 1535 (1996) (sounds kinky).

Delchin, Steven A., __Scalia 18:22: Thou Shall Not Lie With the
Academic and Law School Elite; It Is An Abomination --__ Romer v.
Evans__ and America's Culture War__, 47 Case West. Res. L. Rev. 207
(Fall 1996) (a Scalia fan strikes back).

Fenrich, William J., __Common Law Protection of Individuals' Rights
in Personal Information__, 65 Fordham L. Rev. 951 (Dec. 1996).

Harbour, Cori A., __Sex Offender Legislation and the Constitution:
Striking A Balance for Practical, Productive, and Promising
Legislation__, 21 Thurgood Marshall L. Rev. 99 (1996).

Joslin, Courtney G., __Equal Protection and Anti-Gay Legislation:
Dismantling the Legacy of__ Bowers v. Hardwick__ -- __Romer v.
Evans__, 116 S.Ct. 1620 (1996)__, 32 Harv. Civ. Rts. - Civ. Lib. L.
Rev. 225 (Winter 1997) (Recent Developments).

McCaw, Kirsten L., __Freedom of Contract Versus the
Antidiscrimination Principle: A Critical Look at the Tension
Between Contractual Freedom and Antidiscrimination Provisions__, 7
Seton Hall L. Sch. Const. L. J. 195 (Fall 1996) (unlike most
writing on this subject, concludes that importance of
antidiscrimination policy should trump contract freedom).

Taylor, Lisa D., Casenote, Hurley v. Irish-American Gay, Lesbian &
Bisexual Group of Boston, 115 S.Ct. 2338 (1995), 7 Seton Hall L.
Sch. Const. L. J. 243 (Fall 1996) (says the Court got it wrong!).

Wilson, Charles Howard, __Goosing, Bagging and Dry-Humping:
Foreplay or Horseplay?__ McWilliams v. Fairfax County Board of
Supervisors, 21 Thurgood Marshall L. Rev. 211 (1996).

AIDS & RELATED LEGAL ISSUES: 

Carney, Jamie S., James L. Werth, Jr., and Renee Laster Morris,
__AIDS-Related Knowledge and Beliefs Among Incarcerated Adolescent
Males__, 24 Crim. Just. & Behavior 96 (March 1997).

Karlen, Pamela S., and George Rutherglen, __Disabilities,
Discrimination, and Reasonable Accommodation__, 46 Duke L.J. 1
(Oct. 1996).

Moore, Thomas A., __Disease Phobia: AIDS - Part II__, N.Y.L.J.,
2/4/97, p. 3.

Robbins, Ira P., __George Bush's America Meets Dante's Inferno: The
Americans With Disabilities Act in Prison__, 15 Yale L. & Pol. Rev.
49 (1996).

__Student Notes & Comments:__

Schmid, Caitlin A., __Protecting the Physician in HIV Misdiagnosis
Cases__, 46 Duke L.J. 431 (Nov. 1996).

__Specially Noted:__

The ACLU, in collaboration with Southern Illinois University Press,
has published __The Rights of People Who Are HIV Positive: The
Basic ACLU Guide to the Rights of People Living With HIV Disease
and AIDS__ (ISBN 0-8093-1992-6; $13.95, 1996).  This trade
paperbook, co-authored by William B. Rubenstein, Ruth Eisenberg,
and Lawrence O. Gostin, presents concise summaries of the law aimed
at the intelligent lay reader in a question and answer format.  The
book covers basic legal principles relevant to public health
measures, insurance, day-to-day family living issues,
discrimination, and special settings such as schools and prisons. 
The approach reflects an emphasis on protective legislation,
regulations and legal decisions.  Perhaps due to the nature of the
piece, it tends to gloss over difficulties that have arisen in
securing compliance with legal requirements and strongly assures
people of the existence of legal protection, but it should prove
useful to those affected by HIV in becoming aware of their rights
and how to vindicate them. 

Letter to Law Notes

I am writing to express my concerns with the manner in which the
case of __People v. Landis__, 1996 WL 733135, was reported in the
Feb. 1997 issue of __Law Notes__.  [A]s a lesbian advocate in the
domestic violence movement I am very familiar with the kinds of
behavior describe in the case.  Breaking into apartments, incessant
telephone calls, and physical assaults are commonplace behaviors in
abusive relationships.  Yet your case report carried the misleading
and sensationalistic caption "California Appeals Court Rules in
Bizarre Gay Obsession Case," immediately followed by the warning
"Soap Opera Alert!"  This treatment minimized and trivialized what
is a real and growing problem of domestic violence in the LGBT
communities. . .  Your case report was a disservice to [domestic
violence] victims, who must often overcome incredible barriers to
get assistance in dealing with the violence threatening them. . . 
Your publication provides a valuable service to the LGBT
communities; that service could be enhanced by an acknowledgment
and critical evaluation of how the legal system treats same-sex
domestic violence cases.  Susan Gibel, Minneapolis, MN.  __(Points
well taken.  But we still think the facts of the case illustrate a
bizarre obsession by the defendant. . . A.S.L.)__

EDITOR'S NOTE

All points of view expressed in Lesbian/Gay Law Notes are those of
identified writers, and are not official positions of the Lesbian
and Gay Law Association of Greater New York.  All comments in
__Publications Noted__ are attributable to the Editor. 
Correspondence pertinent to issues covered in Law Notes is welcome
and will be published subject to editing. Please address
correspondence to the Editor or send by e-mail. A.S.L.