LESBIAN/GAY LAW NOTES
ISSN 8755-9021     December 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 R. Damslet, Esq., New York; Ian Chesir-
Teran, Esq., New York; Steven Kolodny, Esq., New York; Todd V.
Lamb, Esq., New York; Arthur J. Levy, Esq., Brooklyn; Mark Major,
Esq., New York; Seth M. Rosen, NY Law School Student; K. Jacob
Ruppert, Esq., New York; Daniel R Schaffer, New York; Paul Twarog,
Esq., New York; Dirk Williams, Esq., Boston; Robert Wintemute,
Esq., King's College, London, England.

Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340,
NYC 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 the LeGaL Foundation of the Lesbian & Gay Law
Association of Greater New York               
$45/yr by subscription; Foreign Rate US$60                 

MASSACHUSETTS HIGH COURT FINDS CONSTITUTIONAL FLAW IN SEX OFFENDER
NOTIFICATION LAW                 

In a unanimous ruling issued on Nov. 17, the Massachusetts Supreme
Judicial Court found that the state's sex offender act violates
state constitutional due process rights by requiring all low-level
sex offenders to register with the police in a registry open to
public inspection without affording them a hearing to determine
whether registration is necessary to accomplish the purpose of the
act.  _Doe v. Attorney General_, 1997 WL 709859.  This case is one
of more than 200 in which the sex offender law is being challenged
in Massachusetts courts, according to the _Boston Globe_ (Nov. 18),
and state officials suggested that a requirement to afford hearings
to all low-level sex offenders may make the registration
requirement too expensive to enforce.  Chief Justice Herbert
Wilkins wrote the opinion for the court, with a concurring opinion
by Justice Charles Fried.

In this particular challenge, in which the "John Doe" plaintiff was
represented by cooperating attorney John Ward and staff attorney
Mary Bonauto from Gay & Lesbian Advocates & Defenders, a Boston-
based public interest law firm, the plaintiff was being required to
register under the recently passed law due to a 1990 reststop
cruising conviction.  Doe, a married grandfather in his 60's who is
a self-employed carpenter living in a small town, was caught in a
police undercover operation in a wooded area near a highway
reststop.  After a brief conversation, Doe groped the plainclothes
police officer and was arrested for indecent assault and battery,
to which he pled guilty in a local court, receiving a small fine
and being placed on two years probation.  

Doe's wife, children, and grandchildren all live in the same rural
community.  After she learned about the 1990 conviction, Doe's wife
asked him to move out of their home, so he lives by himself.  Doe
does not consider himself to be a "homosexual."

In his complaint, Doe alleged that he believed the following
consequences might ensue if he is required to register: (1)
disclosure of his sexual activities would have a "devastating
effect" on his family, and consequently on him for causing them
pain; (2) he could become subject to "scorn, ridicule, and
ostracism by his neighbors and . . . become a social pariah"; (3)
he might lose his friends; (4) his business might be destroyed due
to customer reactions.

Doe challenged the registration and disclosure requirement on a
variety of constitutional theories, but the court chose to rest its
decision on state constitutional due process.  Justice Wilkins
observed that the "major premise" of the law is that "disclosure of
the presence of a sex offender in a particular community will help
protect minors and other persons vulnerable to becoming victims of
sex crimes."  The Massachusetts law, part of a nationwide trend
enacted in response to a few well-publicized cases of convicted sex
offenders attacking (and in some cases murdering) children in
communities to which they were released after incarceration,
divides offenders into three levels.  Classification in levels two
or three, for more dangerous offenders, is determined by a process
requiring individual evaluation, and results in automatically
communicating identifying information about the offenders to
schools, neighbors, etc.  Those convicted of low-level offenses are
automatically placed in level one, requiring registration and
making that information available to any resident upon application
to the police.  There is no individualized determination under the
statute; everybody convicted of specified offenses (including
sexual assault and battery) is automatically subject to the level
one requirements.

Evaluating Doe's due process challenge required the court to
determine whether Doe had a constitutionally protected interest in
avoiding registration, and whether that interest outweighed the
needs of the state to accomplish its policy goals.  Justice Wilkins
reviewed the decision in _Doe v. Poritz_, 142 N.J. 1 (1995), in
which the New Jersey Supreme Court upheld one of the earliest of
these notification laws, and in which that court found that
convicted sex offenders did have a constitutionally protected due
process interest, but that this interest had been adequately
protected by procedures requiring an individual determination
whether a particular person's level of dangerousness warranted
subjecting them to the law's requirements.  

Wilkins agreed with this conclusion, commenting that "the
availability of information on request concerning a registered sex
offender threatens the reputation of the offender and stigmatizes
him as a currently dangerous sex offender.  The sex offender act
requires the plaintiff to take action that will register him as
presenting a risk of committing a sex offense and creates the
reasonable possibility that he will suffer adverse economic
consequences from the disclosure of his new status in addition to
the derision of people in the community. . .  If public
availability of information about the plaintiff serves no remedial
purpose, that availability is unnecessary to provide protection for
those whom the act was designed to protect."

Thus, the court concluded that Doe had sufficient liberty and
privacy interests at stake to be "entitled to procedural due
process before he may be required to register and before
information may properly be publicly disclosed about him."  As to
what process is due, Wilkins criticized the failure of the act to
offer a "procedure by which a level one offender may challenge the
requirement that he register under the act."  Wilkins rejected the
state's argument that the adjudication of guilt was sufficient for
the purpose of determining whether registration was necessary in
any particular case, asserting that there is "nothing inherent in
the crime of indecent assault and battery, or in the circumstances
(on the record before us) of the plaintiff, that indicates that
either a person convicted of that crime, or the plaintiff himself,
is a threat to those persons for whose protection the Legislature
adopted the sex offender act.  Nor is the State's interest in
registration or notification so great that the risk of error in
classifying the plaintiff as a sex offender must be tolerated."

Concurring, Justice Fried noted particularly that the Legislature
had gone well beyond the limits of a prior draft of the act that
had been submitted to the Supreme Judicial Court for an advisory
opinion.  While agreeing with the state that there might be cases
(such as rape of a child) where the state could conclude that the
offender should be placed in the registry based solely on the past
conviction, he commented: "The omnibus, catch-all nature of some of
the offenses included in this statute are at a far remove from such
a showing.  The plaintiff's offense in this case, for all we are
told, portends no danger beyond embarrassment.  And that is not
enough.  Although the touching here may well have been technically
assaultive as not consented to, the circumstances make clear that
it took place at a place and in a context where the plaintiff had
every reason to believe that those he met were seeking just the
kind of encounter he initiated.  This is not to say that, if the
government could show that one engaging in behavior that itself
does not implicate the kind of danger that the statute seeks to
guard against is also likely to engage in substantially more
harmful conduct or direct his attention toward children, a
predicate for registration and some form of notification might not
be laid.  We have been offered nothing of that sort."

The court ordered that the Superior Court enter a judgment
declaring the registration and disclosure requirements
unconstitutional as applied to Doe, and issue an injunction barring
the state from requiring Doe to register "in the absence of a
determination following a hearing concerning the plaintiff's
threat, if any, to others."

In its opinion, the court emphasized that the Massachusetts law
went further than required by federal law (for receipt of certain
federal financial assistance), and went further than the laws of
other states in requiring registration for low-level offenses.

In continuing litigation over the New Jersey law, the _National Law
Journal_ (Nov. 24) reported that the U.S. District Court in N.J.
had ruled in _Paul P. v. Verniero_, No. 97-2919, that offenders had
a right to a hearing where the burden would be on the state to
justify their classification under the registration and
notification scheme.  In his Oct. 29 opinion, District Judge Joseph
Irenas wrote: "The right to a hearing at which the state bears the
burden to prove its case by clear and convincing evidence carries
with it the right to determine a legal strategy and create a record
based on that standard."

In another development, California has amended its sex offender
registration and notification law by adopting a provision drafted
by the ACLU under which persons who had been arrested in the past
under provisions banning consensual homosexual activity will not be
required to register.  There was a minor uproar around that state
when the registration law went into effect and elderly gay men
began receiving letters from local police departments, threatening
them with penal sanctions if they did not come in to register
because of old records showing that they had been convicted of sex-
related offenses more than a quarter-century ago before California
decriminalized most gay sex.  Gov. Wilson signed the bill into law
on Oct. 8, and it went into effect Nov. 8.  Under the new
provisions, individuals summoned to register can challenge the
requirement in their case by showing that they were convicted of
consensual activity that is no longer prohibited. _Los Angeles
Times_, Nov. 12.  A.S.L.

Supreme Court Will Examine HIV-Discrimination and "Indecent" Art in
1998

A rather sleepy Supreme Court Term, as far as gay/AIDS issues go,
took an interesting turn on Nov. 26 when the Court announced grants
of certiorari in two important cases that will be fast-tracked for
argument in March and decision by the end of this term.

_Bragdon v. Abbott_, No. 97-156, 1997 WL 434576, directly poses the
question whether persons with HIV-infection who have not developed
AIDS are entitled to protection from discrimination under the
Americans With Disabilities Act.  On March 5, 1997, the U.S. Court
of Appeals for the First Circuit ruled in _Abbott v. Bragdon_, 107
F.3d 934, that because Sidney Abbott, a dental patient of Dr.
Randon Bragdon, was limited in her reproductive ability by her HIV
infection, she could be considered a person with a disability under
the ADA's public accommodations provisions, and was thus protected
from unjustified discrimination by her dentist, who was refusing to
provide normal treatment in his office.  Although most lower
federal courts have ruled that HIV-infection is a disabling
condition, some have rejected that view, most recently an en banc
plurality of the 4th Circuit in _Runnebaum v. Nationsbank of
Maryland_, 1997 WL 465301.  While the 1st and 4th Circuits agree
that HIV-infection is not necessarily a _per se_ disability, they
part company in the 1st Circuit's willingness to rely on statements
in the legislative history supporting the view that because of its
effect on an individual's ability to engage in intimate sexual
activity and reproduction, HIV-infection is an "impairment"
affecting a _major life activity."

This is the first case directly involving a discrimination claim by
a person with HIV infection to come before the Supreme Court, and
will provide the Court with its first opportunity to elucidate the
application of the ADA to people with HIV/AIDS.  Abbott is
represented by Gay & Lesbian Advocates & Defenders, a Boston-based
public interest law firm.  Bennett H. Klein, GLAD's AIDS Law
Project Director, has worked on the case together with cooperating
attorney David G. Webbert of Augusta, Maine. 

In _National Endowment for the Arts v. Finley_, No. 97-371, 1997 WL
561768, the Court took on the recurring problem of dealing with
attempts by Congress to restrict the use of federal funds for
artwork that members of Congress find offensive due to its sexual
or "blasphemous" content.  The 9th Circuit ruled earlier this year
in _Finley v. NEA_, 112 F.3d 1015, that provisions limiting the
ability of the NEA to award financial assistance to artists for the
production of "indecent" art was constitutionally faulty in light
of a recent precedent holding that a public university could not
refuse to fund a newspaper published by a Christian student
organization solely because of the religious content of the
newspaper.  The coalition of four performance artists who brought
the challenge to the congressional restrictions includes several
openly-gay artists.

Both _Bragdon_ and _NEA v. Finley_ were put on a fast track by the
Court, which ordered petitioners' briefs to be on file by Jan. 9,
1998, respondents' briefs (and presumably amicus briefs on behalf
of respondents) by Feb. 6, and reply briefs on file by March 6. 
Oral argument in both cases will likely be held by the end of
March.  A.S.L.

LESBIAN/GAY LEGAL NEWS 

Atlanta's Domestic Partner Benefit Ordinance Held Constitutional

The city of Atlanta has won round two of its battle to extend
substantive benefits to the domestic partners of its employees.  
In a 5-2 opinion, the Supreme Court of Georgia upheld the
constitutionality of Atlanta's revised domestic partner benefit
ordinance, reversing the judgment of the Fulton County Superior
Court.  _City of Atlanta v. Moran_, 1997 WL 677314 (Nov. 3). The
ordinance was challenged by Lamar Moran, a city resident who
contended that Georgia's constitution did not permit local
governments to extend insurance benefits to domestic partners.

Georgia law authorizes municipalities to provide insurance and
other benefits to their employees and the employees' dependents,
although the statute does not define who qualifies as a dependent. 
The City of Atlanta Council had passed two domestic partner
ordinances: a registration ordinance, and an ordinance defining
`dependents' as registered domestic partners of city employees.  In
an earlier decision, the court had upheld the first but struck down
the second ordinance, ruling that it extended the definition of
dependent in a manner inconsistent with state law.  The court held
that the benefits ordinance impermissibly recognized domestic
partners as a family relationship, and defined `dependent' based on
status rather than financial dependency.

On Sept. 3, 1996, the City of Atlanta Council tried again and
passed Ordinance 96-O-1018.  This ordinance defined an eligible
dependent as "one who relies on another for financial support." 
The ordinance grants insurance benefits only to those dependents
who are registered as domestic partners.  The court has now
approved of this structure, in an opinion by Justice Hunstein.

First, the Hunstein compared the ordinance's definition of
`dependent' with the term's dictionary definition, as well as its
definition in other statutory and common law contexts.  By not
defining dependent in a way so as to recognize a new family
relationship similar to marriage, the ordinance avoided
constitutional flaws raised in the prior case.   The court also
held that since a municipality need not legislate to the fullest
extent of its home rule authority, the City Council was within its
right to extend benefits to fewer than all of its employees'
dependents.

Justices Carley and Thompson dissented, in an opinion by Justice
Carley.  The dissent argued that the court's prior decision had
only upheld the domestic partner registration ordinance precisely
because it did not confer any substantive rights to registered
partners.  The dissent accused the majority of ruling contrary to
the letter and spirit of its prior holding by now extending
insurance benefits to domestic partners.  The dissent posited that
the city has no authority to create a contract comparable to
marriage, and concluded that the domestic partner ordinance was
preempted by marriage and divorce laws.  

The _Moran_ decision is another step towards recognizing family
relationships other than heterosexual marriage.  The practical
long-term significance of the case is less certain, however, since
the Georgia legislature retains the authority to defining the term
dependent so as to exclude domestic partners.  Opponents of the
Atlanta ordinance say they feel particularly encouraged to press
for legislative action in light of Congress' recent passage of the
Defense of Marriage Act.  Domestic partner proponents must wait and
hope that this issue will remain a two-round fight.  

The ordinance was defended by Atlanta City Attorneys Kendric E.
Smith and Robin Joy Shahar, with amicus assistance from Harry H.
Harkins, Jr., and J. Patrick McCrary.  I.C.-T.

South Carolina Supreme Court Upholds Zoning Restrictions on
Sexually-Oriented Businesses

A city ordinance restricting the location of sexually oriented
businesses was held constitutional by the Supreme Court of South
Carolina.  _Condor, Inc. v. Board of Zoning Appeals_, 1997 WL
697804 (Nov. 10).  The City of North Charleston's Ordinance sec.
4-14 restricts the location of any sexually-oriented business to
light or heavy industrial zones with certain specific proximity
requirements.  Section 4-14 defines a sexually oriented business as
"an adult arcade, adult bookstore or adult video store, adult
cabaret, adult motel, adult motion picture theater, adult theater,
escort agency, nude model studio, or sexual encounter center." 

Condor, Inc. operated businesses in North Charleston that sold
electronic devises resembling genitals, pornographic video tapes
and magazines depicting heterosexual and homosexual activity. 
Further, the establishments contained booths where patrons could
privately view videos and places where women could be paid to dance
naked for the patrons.

The instant action arose after Condor was served with a cease and
desist order for operating a sexually-oriented business in an area
not zoned for same.  Condor challenged the cease and desist order
on two grounds.  First, that they were not operating a sexually-
oriented business; this challenge was quickly dismissed by the
court.  Second, Condor challenged the constitutionality of sec.
4-14, alleging that it effectively zones out their ability to
operate within the City of North Charleston.  Condor claims that
the ordinance provides no reasonable alternative avenues of
communication for their businesses in violation of the First
Amendment.  

The U.S. Supreme Court has held that content-neutral time, manner
and place restrictions are constitutional so long as "they are
designed to serve a substantial governmental interest and do not
unreasonably limit alternative avenues of communication."  _City of
Renton v. Playtime Theaters, Inc._, 475 U.S. 41, 45 (1986). 
Although Condor's witness testified that there were no locations
within North Charleston where Condor could operate its business
without violating sec. 4-14, the City's witness testified that
twenty-one properties within the City were within the proper zoning
areas and met the proximity requirements.  Based on the foregoing,
the court found Section 4-14 is constitutional as it provides a
reasonable opportunity for Condor to relocate its businesses within
the City.  Whether any of these twenty-one properties had space
available for Condor to operate its businesses was not considered
in the decision.  T.V.L.

California Appeal Court Rejects Lesbian Co-Parent Visitation Claim

Reiterating its prior ruling in _Curiale v. Reagan_, 222 Cal.App.3d
1597, 272 Cal.Rptr. 520 (1990), the California Court of Appeal, 3rd
District, ruled Nov. 17 in _West v. Superior Court_, 1997 WL
721687, that the state's courts do not have jurisdiction to make
custody or visitation rulings in cases brought by unmarried
partners of single parents.  The opinion by Associate Justice
Nicholson insisted that the only solution to this problem lies with
the legislature.

According to the opinion, Barbara West and Pamela Lockren decided
in 1992 to have a child together.  They jointly purchased semen,
and West became pregnant through donor insemination.  Their child,
Cady, was born in 1993, and they raised her together until
terminating their relationship in April 1995.  At that time, they
agreed to continue sharing parental responsibilities, but over time
West began to reduce Lockrem's contact with Cady, until Lockrem
decided to seek legal assistance in maintaining her parental role.

Lockrem filed suit in January 1997, claiming to be a parent of Cady
and seeking a determination of child custody and visitation.  West
resisted the suit, refusing to attend the mediation sessions to
which the trial court referred the case.  The mediator submitted a
report to the court recommending issuance of a visitation order. 
In April 1997, Lockrem filed a second suit asserting a variety of
claims, including breach of contract and equitable estoppel, and
seeking a permanent injunction granting custody and visitation
rights, as well as a judicial dissolution of the parties'
relationship with division of assets.  Lockrem also filed an ex
parte application for a temporary restraining order mandating
visitation, which the trial court granted, ordering that Lockrem
have visitation with Cady two weekends a month.

West petitioned the Court of Appeal for a writ against the
visitation order, which was granted in this decision.

In the court's opinion, Justice Nicholson found that legislative
inaction on this issue since the court's prior opinion in _Curiale_
was decisive in rejecting Lockrem's claims.  Lockrem had argued
that the court should take note of social developments over the
intervening years, in order to protect the interests of the growing
number of children who are being raised in non-traditional
families, but the court responded that Lockrem had misconceived the
court's role; in _Curiale_ this same court had pointed out that
"the Legislature is better equipped to consider expansion of the
current California law should it choose to do so."

"Despite our unmistakably clear admonition concerning the locus of
social policy development, especially with respect to the structure
and dynamics of the family, Lockrem urges us to contort common law
principles to provide her desired result.  We have no authority to
do so.  The Legislature has had our decision in _Curiale_ now for
seven years and has not seen fit to bestow jurisdiction in the
trial courts under the circumstances presented here. . . .  To do
so would be simple, procedurally.  Thus, we can only conclude the
Legislature has not made a change because it is not the will of the
people."

Responding to Lockrem's implicit criticism of the courts for
failing to grapple with the reality of the situation, the court
stated in a footnote: "`Our decision in this case does not turn
upon the personal views of any justice with regard to [the] moral
issue[s involved here].' (American Academy of Pediatrics v. Lungren
(1997) 16 Cal.4th 307, 314, 66 Cal.Rptr.2d 210, 940 P.2d 797.) This
court expresses no view as to `non-traditional families' or
homosexuality."

The court also rejected Lockrem's argument that it should not make
a determination about jurisdiction because the trial court had not
yet issued a final ruling on that question, having preserved the
issue for dealing with West's motion to dismiss the complaint. 
Jurisdictional issues can be raised any time by the court on its
own motion, because "the court is powerless to proceed without
[jurisdiction]."

The court granted West's petition for a writ of mandate to the
Superior Court, commanding that court to set aside the visitation
order, and awarded costs on this petition to West.  While that
apparently leaves Lockrem's other claims alive, it appears to
eliminate custody and visitation as a remedy for those claims.

West is represented by Sharon M. Huddle of Sacramento.  Lockrem is
represented by Kathleen E. Finnerty and Tim Ragan of Sacramento.  

The press reported on Nov. 12 that a New Jersey trial judge had
ordered visitation rights for a lesbian co-parent pending a trial
on her custody and visitation claims.  Judge Philip Cummis stated
from the bench on Nov. 10 that it was "unfair to the kids to cut
off visitation if I find she's a working part of the family," and
ordered 8 hours of visitation on alternate Saturdays while the case
is pending.  An ACLU of New Jersey lawyer was quoted in the _Bergen
Record_ (Nov. 12) as stating that this was the first such order
every issued by a New Jersey judge.  The parties were identified in
the news reports only by their initials: V.C. and M.B. A.S.L.

Ohio Appeals Court Knocks Down Sentence in Possible Bias Case

Rejecting a trial court's conclusion that an arson was based on
sexual orientation bias, an Ohio appeals court reduced the sentence
of Scott Sheppard from the maximum of 5 years to the minimum of 1. 
_State v. Sheppard_, 1997 WL 701349 (Ohio App. 1 Dist., Nov. 7).
The appeals court also rejected the trial court's finding that
Sheppard was a likely candidate for recidivism.  

Sheppard admitted setting a fire in a trash can in a building on
the University of Cincinnati campus.  The trial court found that
the fire was set to "hinder another person from pursuing him for
sexual favors."  The trial court relied on an unsworn statement
that Sheppard has previously set a fire, as well as a prior
conviction for solicitation, to conclude that he was likely to be
a recidivist.  The trial court sentenced him to the maximum of five
years.

Judge Sundermann wrote for a unanimous appeals court that the
record did show that the person pursing Sheppard was homosexual,
but that "the record indicates that the fire was set to avoid
contact with this person."  The court also found fault with the
trial court's use of the unsworn statement and concluded that a
solicitation conviction was not an indicator of his likelihood to
set another fire.

Addressing the length of the sentence, the appeals court found that
the trial court did not follow sentencing guidelines requiring that
if a person has not previously served a prison sentence (the
solicitation conviction did not result in a prison term) that the
minimum sentence should be given unless "the shortest prison term
will demean the seriousness of the offender's conduct or will not
adequately protect the public from future crime by the offender or
others."

The appeals court found "clear and convinc[ing]" cause to reduce
the sentence to the minimum of 1 year.

In concurring, Judge Painter emphasized that the appeals court
would "not hesitate to do our duty" in enforcing sentencing
guidelines and that the appeals court had a responsibility "to
review sentences for compliance."  D.R.S.

Indiana Appeals Court Rejects Self-Defense Claims in Gay Murder
Case

Voting to affirm a conviction and a 45-year prison sentence in
_Broome v. State_, 1997 WL 707073 (Nov. 14), the Indiana Court of
Appeals upheld a trial court's ruling excluding evidence about the
past homosexual activities of a murder victim as not relevant to
the defendant's claim of self-defense.

Joe Murray, the victim, was driving his truck on April 9, 1995,
when he stopped to pick up Adrian Broome, a hitchhiker.  According
to Broome's testimony, Murray drove Broome into the next county,
plied him with liquor, and attempted to perform oral sex on him. 
"Attempting to repel this sexual advance, Broome pointed a gun at
Murray," wrote Judge Barteau.  "The two men then struggled for
possession of the gun.  During the struggle, Broom hit Murray in
the head with the gun and shot Murray in the fact." Murray was
later found dead on the country road where he had parked his truck,
and the truck was found in another location.  Broome confessed to
the murder, claiming self-defense, and sought at trial to offer two
witnesses who would testify that Murray had a habit of picking up
straight men, plying them with liquor and then attempting to have
sex with them.  The trial court refused to allow admission of this
evidence.  Broome was convicted of voluntary manslaughter and
sentenced to 45 years.

Broome raised a variety of issues on appeal, none of which moved
the court, but one of which is of direct interest to _Law Notes_
readers: the issue of the testimony going to self-defense.  The
Indiana Code provides: "To prevail on a claim of self-defense, a
defendant must prove that she was in a place where she had a right
to be, that she acted without fault, and that she had a reasonable
fear or apprehension of death or great bodily harm."  Broome sought
to introduce testimony about Murray's sexual habits in order to
bolster his story that he was defending himself from a sexual
advance.  But the court found that the testimony he sought to offer
was not relevant to self-defense, as defined in the Indiana Code. 


"It is apparent that the facts which were of consequence to
Broome's self-defense claim would not have been made more or less
probable by Watson's testimony.  Broome . . . was required to
demonstrate the fact that he had a reasonable belief the use of
deadly force was needed to prevent either serious bodily injury to
himself or the commission of a forcible felony.  But Watson's
testimony could not have demonstrated Broome's reasonable belief in
the need to prevent serious bodily injury or the commission of a
forcible felony, because nothing in this testimony would have
indicated that Murray had a reputation for physically injuring, or
using force against, the object of his sexual advances. . . 
Smith's testimony might have been used to show, inter alia, that
Murray intended, prepared, or planned, to seduce Broome.  But this
testimony, which described a consensual homosexual encounter and
which did not indicate that Murray used force or violence, would
not have helped the jury to determine whether Broome reasonably
believed that he needed to protect against serious bodily injury.
. ."

Thus, evidence that somebody engages in consensual, non-violent
homosexual activity is not admissible in support of a claim that
the object of homosexual advances must respond with deadly force to
save his life.  A.S.L.

Tennessee Court Rejects Appeal of Murder Conviction in "Homosexual
Panic" Case

The defendant in _State v. Howell_, 1997 WL 688768 (Tenn. Crim.
App., Nov. 6), appealed his conviction for first degree murder in
perpetration of a theft, after a jury had rejected his homosexual
panic defense.  His arguments on appeal included insufficiency of
the evidence, improper denial of motion for mistrial during opening
argument, improper admission of autopsy photos, and improper jury
charge on parole eligibility.

The defendant conceded stabbing the victim, alleging that it
occurred only after the victim had "come on" to him.  The autopsy
report indicated the cause of death was from multiple stab and
incised wounds: "the wounds were too numerous to count and detail." 
Thirty or more wounds were inflicted to the head, 15 to the chest
and back, and 40 to the hands and forearms with two weapons, one
sharp and one blunt.  The defendant admitted taking the defendant's
wallet.  Several witnesses testified that the thrice-married victim
had "no homosexual tendencies," to their knowledge.  All defense
claims were rejected on appeal.  

The appellate court ruled: 1) there was sufficient evidence to
sustain the jury verdict; 2) the autopsy photos were admitted
because there were too many wounds to be put in a diagram, such
that the photos admitted would be more helpful than a diagram in
showing location of wounds and in showing whether the claim of
self-defense was reasonable; 3) that, in his opening argument, the
prosecutor properly referenced a substantial amount of cash taken
from the victim during the murder, as the defendant and counsel
were aware of the theft of the victim's wallet; and 4) there was no
constitutional infirmity in advising the jury as to the proper
calculation of minimum time served before earliest release date.
S.K.

Prisoner States  1983 Claim in Retaliatory Rumors of Homosexuality

Thomas Brennan, a state prisoner in Pennsylvania, survived a motion
for summary judgment on his federal court claim that prison
officials violated his constitutional rights by spreading the word
in the prison that he is a "snitch" and a homosexual, allegedly in
retaliation for his exercise of First Amendment rights.  _Brennan
v. Fryer_, 1997 WL 717054 (E.D.Pa., Nov. 12).  

The opinion by District Judge Fullam does not go into any detail
about the nature of the First Amendment activity that is alleged to
have invoked this retaliation.  Fullam does explain the basis for
the 8th Amendment retaliation claim; after noting that mere verbal
harassment does not make a constitutional violation, Fullam
asserts: "In this case, however, the plaintiff has alleged more
than mere verbal harassment: he claims that prison officials spread
this information regarding his propensities among the prison
population with the hope that other prisoners would assault the
plaintiff.  A prisoner can state a cause of action under sec. 1983
without alleging physical harassment. . .  The plaintiff's
allegations here are coupled with corroborating evidence.  As such,
a genuine issue of material fact exists as to the plaintiff's
claims of retaliation."

Finding that Brennan had made factual allegations sufficient to
raise an issue as to whether there was a "conspiracy" to retaliate
against him, the court refused to grant summary judgment, although
it did conclude that certain named defendants should be dismissed
from the case due to lack of specific allegations that they played
a role in the conspiracy.  A.S.L.

Tennessee Appeals Court Affirms Lengthy Prison Term for Murderous
Response to "Homosexual Advance"

In _State v. Farmer_, 1997 WL 674779 (Oct. 31), the Tennessee Court
of Criminal Appeals upheld consecutive sentences totalling 37 years
for defendant Russell Farmer, accused of participating the murder
of Bill White. According to the testimony at trial, White, an older
man, was entertaining Farmer and two other young men (co-
defendants) in his home.  Farmer and White went into White's
bedroom so that Farmer could make a telephone call.  The two co-
defendants hear sounds of a struggle, entered the back room and
witnessed Farmer beating White with a leather "blackjack," having
already slashed his throat.  At trial, testimony showed that White
had made a homosexual advance toward Farmer.  The defendants put
White's body in the trunk of his car and drove to a creek, where
they dumped the body.  They later stole items from White's home and
his business before surrendering to state police.

The issue on appeal was whether the trial court had appropriately
given White cumulate sentences of 37 years, which under Tennessee
law requires a determination that he is a "dangerous offender,"
that the cumulative sentence is not disproportionate to the
seriousness of the offense and is reasonably necessary to protect
the public.  Having recounted the findings of the trial court, the
appeals court found no abuse of discretion under the circumstances
and affirmed the sentence.  A.S.L.

Domestic Partnership Notes

The San Francisco Board of Supervisors voted to allow city
department heads to request waivers of the requirement that their
contractors provide domestic partnership benefits to their
employees.  The waiver requests must be submitted to the Human
Rights Commission.  The waivers are only supposed to be granted
when there are not adequate qualified contractors available to
provide a needed service.  The city ordinance requiring that
contractors provide domestic partnership coverage to employees is
the subject of legal challenges in a federal action that has been
argued and as to which decision is pending.  _San Francisco
Chronicle_, Nov. 12.

The University of California Board of Regents voted 13-12 on Nov.
22 to extend health and housing benefits to same-sex partners of
university employees.  Governor Pete Wilson, a staunch opponent of
domestic partnership, made several last-minute appointments to fill
vacancies on the board with like-minded persons, and made a rare
personal appearance at a board meeting to vote against the
proposal, but to no avail.  All of Wilson's previous personal
appearances since his 1994 re-election as governor were to vote
against affirmative action policies.  _Los Angeles Times_, Nov. 20,
22 and 23.

The University of Washington Board of Regents voted Nov. 21 to
allow domestic partnership families to use subsidized married and
family student housing beginning in December 1997.  UW officials
stated that they believed they had the authority to adopt this
policy without legislative authorization, but an anti-gay state
representative, Mike Sherstad (R.-Bothell), announced that he would
ask the Legislature's Joint Administrative Rules committee to
review whether the regents exceeded their authority.  _Tacoma News
Tribune_, Nov. 23.

An internet posting reports that the new benefits package for
employees of Rush-Presbyterian-St. Luke's Medical Center and Rush
University in Chicago extends benefits eligibility to domestic
partners.

Sunquest Information Systems, an employer of 800 persons in offices
in four states, Canada and the U.K., has announced to employees
that it is extending eligibility for health and dental insurance to
same-sex partners of employees, according to information posted to
the Internet by a Sunquest employee.  A.S.L.

Law & Society Notes

President Bill Clinton made history on Nov. 8 as the first sitting
president to address a gay political fundraising dinner.  In his
speech, Clinton called for passage of the Employment Non-
Discrimination Act.  A few days later, at a White House conference
on bias crime, Clinton called for passage of a federal bias crime
law that would cover anti-gay violence. 

November elections resulted in numerous victories for openly
lesbian and gay candidates.  For the first time, the New York City
Council will include three openly lesbian or gay members: newly
elected Margarita Lopez and Philip Reed, and re-elected Tom Duane. 
LeGaL member Debra Silber won election to the NY City Civil Court
in Brooklyn.  

Two Republican Senators, James M. Inhofe (R-Okla.) and Tim
Hutchinson (R-Ark.), blocked Senate confirmation of gay
philanthropist James C. Hormel to be ambassador to Luxembourg.  By
putting a "hold" on the nomination in the waning days of the 1st
session of the 105th Congress, the Senators kept the confirmation
from coming to a vote, despite its approval by the Foreign
Relations Committee.  Inhofe and Hutchinson contend that Hormel, a
gay rights activist, will improperly use his ambassadorship to
promote homosexual rights.  The White House announced that it would
renew advocacy for confirmation of Hormel when Congress reconvenes
in January.  _Washington Post_, Nov. 14.

A national conference of the Union of American Hebrew
Congregations, the synagogue federation of the Reform Movement of
American Judaism, adopted a resolution on Oct. 31 supporting civil
marriages for same-sex Jewish couples.  _Associated Press_, Nov. 2.

An anti-gay activist is entitled to compensation for pain and
suffering resulting from his exclusion from a meeting of gay and
lesbian city employees in Seattle, ruled the Seattle Office for
Civil Rights, but the Seattle Employees Association for Gays and
Lesbians announced it would appeal the ruling, which awards $1,000
to prominent local homophobe Phil Irvin.  _Seattle Gay News_, Oct.
31.  

Equality Colorado, a gay rights advocacy organization, gave its
first Ally for Justice Award to Colorado Governor and Democratic
Party National Chair Roy Romer.  _Denver Post_, Nov. 11. Romer has
twice vetoed bills passed by the Colorado legislature that would
have expressly outlawed same-sex marriage in the state and banned
recognition of out-of-state same-sex marriages, and has appointed
a special commission to look into state policies toward same-sex
couples.  Although he was the nominal defendant in _Evans v.
Romer_, the case challenging Colorado's anti-gay Amendment 2, as
governor he opposed the passage of Amendment 2.

A petition has been filed for en banc reconsideration in _Equality
Foundation v. City of Cincinnati_, 1997 WL 656228, 75 FEP Cases
(BNA) 115 (6th Cir.), the challenge to a Cincinnati charter
amendment that forbids the city from adopting any policy that
prevents anti-gay discrimination.  A panel of the circuit recently
held that the provision is constitutional, despite the Supreme
Court's decision in _Evans v. Romer_ that struck down the almost
identically-worded Colorado Amendment 2.  _Cincinnati Post_, Nov.
21.

After Los Angeles Mayor Richard Riordan vetoed a City Council
measure granting a gay sex club a zoning exemption that would have
allowed it to continue operating in its controversial location, the
owners of the club announced that they were giving up the fight to
stay in business there.  Councilwoman Jackie Goldberg had
championed the club's right to continue operating, but conceded
that she did not have the votes necessary for a veto override. 
_Los Angeles Times_, Nov. 22.

A conservative Republican state legislator in Arizona has stirred
up a storm of protest among social workers by announcing plans to
introduce legislation in January banning single persons from being
foster parents.  The ban is aimed primarily at lesbians and gay
men, but would apply more broadly because Rep. Karen Johnson
asserts that foster kids require a "normal" two-parent household. 
Social welfare officials point out that the proposal would
disqualify a third of the state's foster parents, at a time when
there is a "drastic shortage" of foster homes in the state. 
_Arizona Republic_, Nov. 26.

A famous gay rights plaintiff will launch a political career. 
Retired Army Colonel Margarethe Cammermeyer has announced plans to
challenge U.S. Rep. Jack Metcalf (R.-Wash.) in next year's
congressional election.  Cammermeyer is one of the few openly
lesbian or gay litigants to have actually won reinstatement in
federal court.  A veteran of Vietnam, she was processed for
discharge in 1992 when she "came out" during a security clearance
interview.  She presently lives on Whidbey Island, Washington, with
her partner, Diane Divelbess.

The ongoing saga of weddings in Emory University (Atlanta) chapels:
Responding further over criticism of a decision to bar same-sex
commitment ceremonies from the chapels, Emory's trustees have now
voted to allow such ceremonies, but only if an ordained campus
minister from one of Emory's "approved" religious groups conducts
the ceremony.  Two such denominations -- Reform Judaism and United
Church of Christ -- are represented on the Emory campus. 
Consequently, some same-sex ceremonies may take place.  _Atlanta
Constitution_, Nov. 14.

The delegates to a convention of the Episcopal Diocese of Olympia,
in western Washington State, voted 244-190 in favor of a resolution
supporting ordination of openly gay and lesbian clergy.  The Nov.
14 vote marked a reversal from a 1995 vote; the measure had been
tabled at last year's convention.  _The Columbian_, Nov. 16.

A disciplinary action against a child care worker who ordered the
removal of a foster child from the home of a lesbian couple has
sparked a debate about foster care policy in Texas.  Rebecca
Bledsoe, a Child Protective Service (CPS) employee, ordered that
Devonte Marshall, an infant born to a crack-addicted mother whose
parental rights were terminated, be taken out of the home of a
lesbian couple who had previously been found qualified to provide
foster care.  Bledsoe was reprimanded by her superiors, and has now
filed a grievance protesting her discipline.  Meanwhile, her
attorneys contacted an uncle of Devonte Marshall, who has decided
to seek custody of the child.  Bledsoe has stated that she is
grieving her discipline because she believes that homosexuals
should not be allowed to serve as a foster parents and she wants
CPS to adopt such a policy.  A conservative legal organization, the
Liberty Legal Institute, is supporting her grievance, maintaining
that CPS should be required to adopt policies consistent with the
laws of Texas, which penalize same-sex sexual activity.  _Dallas
Morning News_, Nov. 11; _Fort Worth Star-Telegram_, Nov. 22.

Does an individual have a constitutionally-protected privacy right
in the results of blood tests performed in a hospital emergency
room, where the individual is brought after being involved in a
traffic accident?  In an en banc decision that occasioned a
passionate dissent, the Texas Court of Criminal Appeals found no
constitutionally protected privacy right in _State v. Hardy_, 1997
WL 716775 (Nov. 19).  In this case, a state trooper obtained a
grand jury subpoena for alcohol or drug treatment relevant to
Hardy's treatment in the emergency room; the records revealed a
high blood alcohol content and, based on the records, Hardy was
charged with a misdemeanor.  In a pretrial motion, Hardy sought
suppression of this evidence; the trial court granted the motion,
but was reversed by an intermediate court of appeals.  In reversing
yet again, the court found a lack of consensus among courts about
the 4th Amendment issue, but determined that under the
circumstances of this case, Hardy had no reasonable expectation of
privacy with respect to the records. 

The Los Angeles City Council voted on Nov. 4 to approve a $1.19
million settlement of claims by two lesbian police officers that
they were repeatedly subjected to anti-gay harassment on the job
which was ignored by their supervisors. _Los Angeles Times_, Nov.
5.  A.S.L.

Another Federal Circuit Judge Heard From

Following on last month's speech by retiring 9th Circuit Judge
William Norris comes another speech on gay legal issues, this time
by a judge showing no signs of retiring: 11th Circuit Judge Stanley
F. Birch, Jr.  _Law Notes_ readers will recognize Judge Birch as
the author of a strong dissenting opinion in the 11th Circuit's en
banc decision in _Shahar v. Bowers_, 114 F.3d 1097 (11th Cir. May
30, 1997).  The occasion was the third annual Stonewall Bar
Association awards dinner in Atlanta, at which Judge Birch was the
keynote speaker.  In his speech, Birch described the Supreme
Court's decision in _Romer v. Evans_ as follows: "I think [it]
represents the springboard from which equal rights for gays and
lesbians can be achieved within the system."  Developing a point he
made in his dissent, Birch commented: "Gay people are not gay
because they engage in homosexual conduct.  They engage in the
conduct because they are gay.  The status logically antecedes the
conduct."  Thus, constitutional equal protection claims by gay
litigants may be viewed as claims based on status in many cases,
such as _Shahar_.  Birch also cited _Nabozny v. Podlesny_, a 7th
Circuit decision concerning an equal protection claim by a gay high
school student, as a significant case signalling "a sea change in
the way the law looks upon the gay and lesbian community."  Judge
Birch was appointed to the 11th Circuit by President Bush in 1990.
* * *  Stonewall presented a special advocacy award to Ruth Harlow,
Lambda Legal Defense Fund attorney who is representing Robin Shahar
(who has appealed her case to the Supreme Court), a service award
to Carolyn H. White, an attorney who has chaired Atlanta's Gay and
Lesbian Public Safety Task Force for five years, and a recognition
award for Michael R. Hauptman, a non-gay attorney who has
represented gay protesters against Cracker Barrel.  On receiving
his award, Hauptman joked that "This is probably the only group
that thinks I'm straight."  _Southern Voice_, Nov. 6.  A.S.L.

Gay Guam Lawyer Ascends Supreme Bench

_The Advocate_ reported in its Nov. 25 issue that openly gay lawyer
Benjamin J. Cruz has taken a seat on the Supreme Court of Guam. 
Guam is a U.S. island territory in the Pacific Ocean.  Cruz, 46,
had previously served as chief legal counsel to former governor
Richard Bordallo, and then as a superior court judge.  He is, to
the best of our knowledge, the only openly-gay appellate judge in
any U.S. jurisdiction.  A.S.L.

Professional Notes

Gay & Lesbian Attorneys of Washington announced their 5th Annual
Gaylaw Awards honorees: Allan B. Moore of Covington & Burling, an
attorney who is representing plaintiffs challenging the "don't ask,
don't tell" military policy, will receive the Distinguished
National Service Award; Michael M. Hicks of Leftwich and Douglas,
a member of the D.C. Bar Board of Governors, will receive the Ally
for Justice Award; and Gigi B. Sohn of the Media Access Project,
the out-going co-president of Gaylaw, will receive the
Distinguished Community Service Award.  Awards will be presented at
Gaylaw's 1997 Holiday Celebration on Dec. 5.  

Ruth Harlow, Managing Attorney of Lambda Legal Defense Fund's New
York office, was the keynote speaker for the newly-formed Oklahoma
Lesbian and Gay Law Association's kickoff event in Tulsa on Nov. 6.

The 23rd National Conference on Women and the Law will be held in
San Francisco on March 19-22, 1998. For information about the
conference, write: 23rd National Conf. on Women and the Law, Golden
Gate Univ. Law School, 536 Mission St., San Francisco CA 94105;
phone 510-597-0570; e-mail: <sabrina@sirius.com>; website:
www.womlaw.org. A.S.L.

International Notes

The Secretariat General of the Council of Europe has decided to
grant consultative status to the International Lesbian and Gay
Organization (ILGA).  The decision will become effective Jan. 15
unless objection is raised from the Committee of Ministers or the
Parliamentary Assembly.  ILGA has been struggling to regain a
foothold in international organizations since a controversy raised
by conservative U.S. legislators about possible affiliation of
intergenerational sex organizations with ILGA cause ILGA to lose
its observer status at the United Nations a few years ago.

The South Africa Justice Minister, Dullah Oman, has changed
position and decided not to oppose litigation calling for
invalidation of the laws against consensual adult sodomy.  As a
result, a pending challenge in the Rand Supreme Court was expected
to be approved without controversy late in November. 

England's new Courts-Martial Appeals Court, recently established to
provide judicial review in military discipline cases, has ruled
against the government over the dismissal of a gay officer on Nov.
11.  Colin Gilbert Love was a staff sergeant in the royal Military
Police.  A search of a civilian's quarters by police officers on
unrelated grounds turned up correspondence between the civilian and
Love that included homosexually explicit materials evidently sent
in violation of British postal regulations.  Love was court-
martialled for the violation of postal regulations and, after
pleading guilty to the charge, was sentenced to dismissal and
reduction to the ranks, which will have a drastic effect on his
pension entitlement after having served 18 years in the Armed
Forces.  The Appeals Court found this entirely disproportionate,
ordering reinstatement and a relatively small fine.  However, under
British policy barring military service by persons known to be gay,
Love will now be subject to dismissal on grounds of homosexuality,
similarly threatening his pension rights.  * * * As to the
continuing anti-gay military ban in England, the British press has
been speculating that early in 1998 the Labour Party majority in
Parliament will move to end the outright ban rather than face a
significant monetary judgment in a case pending in the European
Court of Human Rights.  There is speculation that England will
adopt some version of the U.S. "don't ask, don't tell" policy,
under which gay servicemembers can serve so long as they make no
public statements about their sexuality and do not engage in
conduct forbidden under military law.  _London Observer_, Nov. 26.

The Manitoba, Canada, Human Rights Commission ruled Nov. 24 that
same-sex partners of government employees in the province are
entitled to get benefits on the same basis as opposite-sex partners
of employees, thus extending eligibility for government health,
dental and vision insurance to the partners.  However, the decision
did not extend to pension plans, because the Commission adjudicator
determined that such plans were outside his jurisdiction.  The
provincial government announced it would comply with the ruling,
rather than appealing the decision.  _Globe and Mail_, Nov. 25.
A.S.L.

AIDS AND RELATED LEGAL NEWS

11th Circuit Orders New Trial on HIV+ Prisoners Rights Under
Rehabilitation Act

Vacating and remanding a decision by the U.S. District Court for
the Middle District of Alabama, a panel of the U.S. Court of
Appeals for the 11th Circuit ruled that the lower court erred in
departing from the "significant risk" standard when it determined
that claims by HIV+ prisoners under Section 504 of the
Rehabilitation Act were not meritorious, in addition to committing
several other errors.  _Onishea v. Hopper_, 126 F.3d 1323 (Nov. 4). 
This is Round 4 in the long-running litigation concerning the
segregation of HIV+ prisoners in the Alabama prison system; the
11th Circuit had previously ruled in _Harris v. Thigpen_, 941 F.2d
1495 (11th Cir. 1991), that the segregation of HIV+ prisoners and
their exclusion from a wide variety of prison services and
activities did not violate their constitutional rights, but had
remanded to the trial court for a determination of their rights
under Section 504.

The opinion by Senior Circuit Judge Phyllis Kravitch found that
District Judge Varner failed to comply with the circuit court's
mandate in evaluating the Section 504 claims.  Although rejecting
the plaintiffs' argument that Varner had improperly refused to
recuse himself from the case due to bias (and other asserted
grounds), the court agreed that it was appropriate to direct that
on remand the case be assigned to a different judge, noting in
particular Judge Varner's failure to apply Section 504 in line with
accepted precedent and the mandate of the prior court decision.

In the course of her opinion, Judge Kravitch described several key
rulings that may be of significance in other cases concerning HIV+
prisoners' rights under Section 504.  Most significantly, in
addition to assuming that HIV+ prisoners are covered as persons
with disabilities under Section 504, the court found that prisoners
should not be excluded from any particular program or subjected to
segregated housing unless the government could show that they
present a significant risk of transmitting HIV to other prisoners
or prison staff.  The district court had taken the position that
any theoretical risk of transmission would render HIV+ prisoners
unqualified for participation in programs, due to the severe
consequences should HIV actually be transmitted.  Rejecting this
view, the 11th Circuit panel found that the Supreme Court's
approach to the issue of contagious conditions in _School Board of
Nassau County, Florida, v. Arline_, 480 U.S. 273 (1987), requires
a showing that there be a _significant_ risk of transmission, not
a merely theoretical risk.  Since the district court's error on
this point "permeated its program-specific findings," the
plaintiffs' challenge with respect to all the programs from which
HIV+ prisoners are excluded would have to be re-examined at a new
trial.

In addition, the district court had taken the position that the
prison could exclude prisoners who were otherwise qualified under
Section 504 if it had a stated penological reason for the
exclusion.  Disagreeing, Judge Kravitch observed that the 11th
Circuit has rejected the notion that Section 504 should be
supplemented by a penological interest test for its application in
correctional institutions.

The circuit court also rejected District Judge Varner's refusal to
accept testimony about how individual members of the plaintiff
class might be qualified to participate in programs.  The
plaintiffs argued that the prison could make an individualized
assessment to determine whether particular prisoners, based on past
behavior, were likely to engage in conduct that could transmit HIV,
and screen out those who presented an unacceptable risk.  Judge
Kravitch pointed out that such an assessment system could present
a reasonable accommodation as mandated by Section 504 case law, and
so the trial court should have taken such evidence.

Although the prior circuit decision required the district court to
make a factual inquiry concerning every program from which HIV+
prisoners were excluded, Judge Varner had lumped together all
programs that take place outside the prison (such as work release
programs) and found the plaintiffs categorically unqualified for
those, based on his view that the prison could not impose adequate
control on their conduct.  The circuit court found that this
violated its mandate on remand, and ordered that an individualized
assessment be made as to each program.

Finally, Judge Varner had found that any accommodation requiring
the hiring of additional prison staff would constitute an undue
burden because the budget for the prison system was declining. 
Rejecting this reasoning, the circuit court observed that
maintaining a segregated housing program for HIV+ prisoners
undoubtedly generated extra expenses; if the district court
determined on remand that such segregation was unnecessary or could
be reduced, there would be a cost savings, so the hiring of an
additional staff member or two in order to make the necessary
accommodations in supervising participation of HIV+ prisoners in
particular programs could not be viewed in a vacuum.  The court
also noted that the cost of adding an additional staff member was
minuscule in relation to the overall budget of the prison system,
and that accommodation expenses that were a significantly larger
portion of an operation's annual budget had been upheld in prior
Section 504 cases as "reasonable."  A.S.L.

Third Circuit Upholds HIV Test of Convicted Rapist Under Federal
Violence Against Women Act

The U.S. Court of Appeals for the Third Circuit held on Nov. 13
that a convicted sex offender can be required to undergo an HIV
test.  _United States v. Ward_, 1997 WL 707096.  Writing for the
court, Circuit Judge Max Rosenn affirmed the trial court's holding
in result, but applied different reasoning to reach his
conclusion. 

Whereas the trial court relied on its inherent authority to order
the test, Rosenn predicated his decision on the Violence Against
Women Act.  42 U.S.C. secs. 14011(b)(1)-(2).  The Act allows
district courts to order a criminal to undergo an HIV test where a
sexually transmitted disease could have been passed to the victim
during the assault.  The Act provides that the test must be
conducted within twelve months of the assault, and that the results
of the test can only be provided to the victim, and a limited
number of other persons approved by the court.

On appeal, Ward, who had pled guilty to kidnapping and repeatedly
raping a 24-year-old-woman, argued that the Violence Against Woman
Act violated his right to be free from unreasonable searches. 
Judge Rosenn held that although a blood test is a search within the
meaning of the Fourth Amendment, the test is not unreasonable, and
as such the Act is not unconstitutional.  Rosenn points out that
the test can only be conducted when the assault in question posses
a risk of transmitting a disease.  Also, the criminal is given
notice that the victim has requested the test, and is then given an
opportunity to contest the test.  

Rosenn also dismissed Ward's claim that the Act is unconstitutional
because it allows the test in the absence of a hearing or
individualized suspicion.  According to Rosen, once the Government
asserts a special need to test the blood, neither a hearing or
individualized suspicion is a requirement. Instead the court must
balance the public interests with the liberty interests of the
criminal.  In this instance Rosenn held that the public interests,
which include preventing an infected victim from transmitting the
disease to others, take precedence over the interests of the
criminal.  S.M.R.

Texas Appeals Court Upholds Aggravated Assault Conviction and Life
Sentence for HIV+ Defendant

A panel of the Texas Court of Appeals in Austin unanimously upheld
a conviction and life sentence for aggravated sexual assault by
Jose Najera, an HIV+ man who forced a 16-year old Mexican girl to
have unprotected intercourse with him.  The girl, Maria E., was
subsequently found dead in the yard of Najera's home, her body
badly bruised.  _Najera v. State_, 1997 WL 706539 (Nov. 13).

According to evidence at trial, on January 1, 1995, Najera forced
Maria and Oscar P., a 15-year old Mexican, both of whom were living
in Najera's home together with Najera's wife and three children, to
go with him to a small outbuilding behind his house.  Najera forced
Maria to engage in sex with him, while Oscar watched, and then
ordered Oscar to have sex with Maria as well.  Oscar testified that
Najera did not wear a condom.  After Maria's body was found in the
yard on January 4, the police arrested Najera on January 6 during
their murder investigation.  He gave a written statement to the
police; as edited for introduction at trial, it states: "I have
only had sex with Maria twice, Oscar was present both times.  I
have known that I was an HIV carrier for seven or eight years.  I
am giving this statement to Detective Knight because I feel very
bad and want to make this right."  There was forensic testimony
about blood and semen stains on a blanket taken from the
outbuilding; the blood stains were identified with Najera and
Maria, and the semen stains were Najera's.  Najera's blood tested
HIV+.

The jury was not told much about the murder, as Najera was charged
in this trial with aggravated sexual assault and indecency with a
child.  The prosecutor referred to other issues not properly before
the jury in an elliptical manner during opening and closing
arguments, but the appeals court decided these references did not
sufficiently prejudice the result to justify a reversal.  Upon
conviction, Najera was sentenced to life on the assault count and
ten years for the indecency count.

On appeal, Najera argued that there was not sufficient evidence to
support the conviction.  He conceded that the sexual organs of an
HIV+ person could be a deadly weapon in this context, but argued
that there was not evidence in the record from which a jury could
conclude that he had ejaculated in Maria.  Oscar had testified that
he saw Najera's penis going into Maria without a condom and that
the sexual intercourse lasted a long time.  The court found that
this evidentiary record was sufficient to support the verdict. 

Najera also contested the indecency conviction with respect to
Oscar, asserting that there was not sufficient evidence from which
the jury could conclude that he, Najera, received sexual
gratification from exposing Oscar to this activity.  "The State was
not required to prove that appellant was sexually gratified, but
only that he acted with the intent to arouse or gratify himself
sexually."  The court concluded that this standard could be met by
the record in the case.   A.S.L.

NY Appellate Division Dismisses Undertaker's AIDS Phobia Claim

The New York Appellate Division, 2nd Dept., dismissed an
undertaker's AIDS phobia claim in _Lombardo v. NYU Medical Center_,
1997 WL 684151 (Oct. 27).

Plaintiff William Lombardo claimed to have cut himself on a sharp
plastic tube negligently left in the corpse of a PWA by defendant
Medical Center.  However, he never examined the corpse to identify
what cut him, and he tested HIV-negative three years later.  With
evidence that they had left no sharp objects inside the corpse, the
defendants moved for summary judgment.  The trial court denied the
motion.  

In a memorandum opinion, the Appellate Division reasoned there was
no evidence that any sharp object was left in the corpse, or that
whatever cut the plaintiff was contaminated with infected blood.
Thus, if the case went to trial the jury would be left to speculate
that it was the Medical Center's negligence that caused the injury.
Further, wrote the court, "because the plaintiff cannot identify
what cut him with reasonable certainty, he cannot establish the
actual or probable presence of HIV on the offending object," which
would be a prerequisite to an action for AIDS phobia under N.Y.
precedents.  The appellate court granted the defense motion with
costs.  O.R.D.

Michigan Appeals Court Rules on Statute of Limitations in
Hemophiliac's HIV Transmission Claim

Affirming a trial court's decision that suit was barred by the
statute of limitations, the Michigan Court of Appeals upheld the
dismissal of a 1994 negligence suit against a Factor VIII
manufacturer for transmission of HIV.  _Berrios v. Miles, Inc._,
1997 WL 724570 (Nov. 21).

Luis Berrios, II, a hemophiliac, learned in 1985 when he was 14
years old that he was HIV+ as a result of using tainted Factor VIII
blood clotting medication.  He began to experience health problems
attributable to his HIV infection in 1992, and filed suit against
the defendant manufacturer of the medication in 1994.  Under
Michigan law, products liability claims must be brought within
three years of sustaining the injury; this period is tolled in
pharmaceutical cases until discovery of the injury, and the statute
also extends the deadline for claims accruing to minors until their
19th birthday.  (Berrios turned 19 in 1989.)

Opposing defendant's motion for summary judgment, Berrios argued
that the statute should not be held to have begun running in his
case until he began experiencing health problems, arguing that he
could not have asserted a claim before then because he would have
had no damages, and noting other cases relating how the hemophilia
association had reassured many HIV+ hemophiliacs during the 1980s
that there was a good chance they would not develop AIDS.  

Judge Gage, writing for the court of appeals, dismissed this
assertion as contrary to Berrios's own testimony, in which he
stated that his hematologist told him in 1987 that everybody who
was HIV+ would eventually develop AIDS, and also related how he had
been negatively affected as a teenager upon learning of his HIV
status.  Clearly, concluded the court, Berrios knew that he had
suffered an injury when he was informed of his HIV+ status in 1987.

Berrios had also argued that until he began to suffer real health
problems, he would have been unable to prove the extent of his
damages, and should not be put to the burden of having to bring a
claim based solely on speculation.  Gage also dismissed this
argument, noting that it had not persuaded the court in analogous
cases involving toxic substances.  A.S.L.

Illinois Federal Court Rules for HIV+ Transit Customer in
Discrimination Dispute

The ACLU of Illinois announced Oct. 28 that U.S. District Judge Joe
Billy McDade (C.D. Ill.) has granted partial summary judgment to
Howard Hamlyn, a person with AIDS who was denied a reduced-fare
benefit normally given to people with disabilities by the Quad
Cities Transportation Authority.  _Hamlyn v. Rock Island Country
Metropolitan Mass Transit District._  (In the June 1997 issue of
_Law Notes_, we reported on Judge McDade's decision to deny
preliminary injunctive relief; 964 F.Supp. 272 (C.D.Ill. 1997).) 
According to the ACLU's press release, Judge McDade found a 14th
Amendment Equal Protection violation. "Metro Link's Reduced Fare
Program, even when assessed under the least exacting standard . .
. utterly fails to satisfy the requirements of the equal protection
clause," McDade wrote, thus avoiding the necessity of determining
whether AIDS status is a "suspect classification" for purposes of
equal protection review.  "There is simply no conceivable rational
explanation for, nor any legitimate governmental interest in,
excluding persons with AIDS from obtaining a reduced fare card." 
A.S.L.

Illinois Federal Court Rejects HIV+ Prisoner's 8th Amendment Claims

In a ruling dismissing the complaint in _Walker v. Peters_, 1997 WL
695677 (N.D.Ill., Nov. 3) (not officially published), U.S. Senior
District Judge Moran found that Dwayne Walker's allegations
concerning his treatment as a prisoner were not sufficient to state
a claim of cruel and unusual punishment under the 8th Amendment.

Walker, a hemophiliac, was imprisoned in 1984 after conviction on
charges of armed violence.  Although prison medical officials
suspected he might be HIV+ because he had used Factor VIII, a
clotting medication for hemophiliacs, at a time when such use
resulted in HIV-infection for many hemophiliacs, Walker
persistently refused to give consent for HIV testing.  Also,
pursuant to prison rules, AZT and other AIDS medications were only
made available for inmates who tested HIV+, the despite their
concerns, the medical personnel could not prescribe such
medications for Walker.  Belatedly, in 1993, Walker evidently
submitted to testing and was positive.  He now asserts the claim
that the failure to prescribe AIDS medications or to force him to
undergo HIV-testing at an earlier time constituted cruel and
unusual punishment in violation of the constitution.

Judge Moran pointed out that the Supreme Court has determined that
mere negligence in providing medical care to prisoners does not
violate the 8th Amendment.  Rather, the court must find deliberate
indifference to the prisoner's wellbeing in order for the
constitutional threshold to be met.  In this case, where Walker
stubbornly refused to submit to HIV testing, Moran found no basis
for claiming that the failure to force him to be tested constituted
deliberate indifference, especially in light of a controlling
Illinois state law requiring consent for HIV testing.  Further,
Moran could not fault a decision by the prison officials to
restrict availability to expensive AIDS medications (with their
toxic side effects) to those prisoners known to be HIV+.  A.S.L.

Liability Insurer Must Cover AIDS Discrimination Claim Against Gym

An insurance company was required to cover an AIDS discrimination
suit, the U.S. District Court for the Eastern District of
Pennsylvania held, despite exclusionary language in the policy
related to AIDS and sexually transmitted diseases. _12th Street
Gym, Inc. v. General Star Indemnity Co._, 1997 WL 634372 (Oct. 7). 


12th Street Gym was sued by a member who alleged AIDS
discrimination and a host of other counts.  General Star, the gym's
commercial liability insurer, defended the action, and advanced the
cost of settlement, but reserved its right to contend that the
claim was not covered, and its right to repayment of the
settlement.  The gym sought a declaratory judgment that the defense
of the lawsuit was covered.  The court initially allowed the gym's
motion for summary judgment; General Star appealed, and the Third
Circuit remanded for consideration of extrinsic evidence to clarify
the policy's ambiguous language. _12th Street Gym, Inc. v. General
Star Indemnity Co._, 93 F.3d 1158 (3d Cir. 1996).  On remand, the
District Judge Ludwig found the extrinsic evidence lacking, and
construed the language in favor of the insured, entering a judgment
for the plaintiffs.  

The policy language stated that the insurance would not apply to
injuries arising from occurrences involving sexually transmitted
diseases, including AIDS.  In the underlying discrimination case,
a member alleged that he had been discriminated against because of
the perception that he had AIDS.  The president of the health club
had not read the policy, or the exclusionary language, when the
policy was issued, but believed the exclusionary language to apply
to claims by persons who feared or who actually contracted a
sexually transmitted disease at the gym.  The insurer's
interpretation of the exclusion was that it was intended to be a
broad exclusion of a large and unknowable risk.  Judge Ludwig found
this extrinsic evidence insufficient to resolve the policy's
ambiguity because the parties did not negotiate concerning the
meaning of the provision when the policy was purchased.  Nor did
the extrinsic evidence support a mutual understanding of the broad
interpretation of the exclusion which the insurer forwarded. 
Considering the "reasonable expectations of a similarly situated
insured," the court found that the insured's interpretation of the
language was not unreasonable, and that the insurer could easily
have clarified the language to comport with their interpretation. 
The AIDS discrimination claim, therefore, was not excluded from
coverage under the policy.  D.W.

AIDS Law & Society Notes

Another federal circuit court has taken a position on the ADA
estoppel controversy: In _Talavera v. School Board of Palm Beach
County_, 1997 WL 728368 (11th Cir., Nov. 24), the court rejected
the view of those courts holding that an applicant for social
security disability benefits is estopped from bringing a
discrimination claim against a former employer under the Americans
With Disabilities Act or the Rehabilitation Act sec. 504.  In this
case, a school clerk with severe motion limitations whose employer
failed to provide necessary accomodations and was forced from her
job filed both for disability benefits and a discrimination claim. 
The trial court found that having received the disability benefits,
she could not assert under the ADA that she is a "qualified person
with a disability."  Disagreeing, the court found that the Social
Security determination was merely one piece of evidence to be
considered by the court in deciding whether the plaintiff was
"qualified" to work with reasonable accommodation.  However, the
court did embrace a more limited form of estoppel, holding that the
plaintiff would be estopped from denying or contradicting any of
her statements in her Social Security Disability application.  

In _Adoption of Mario_, 1997 WL 693660 (Mass.App. Nov. 10), the
court affirmed the termination of parental rights of an HIV+
mother, thus allowing her child to be given for adoption without
her consent.  The decision by Chief Judge Warner mentioned the
mother's HIV status in passing, but focused entirely on other
factors tending to show her unfitness, including drug use,
psychological difficulties, and serious neglect of the child.

In _Doe v. Hemophilia Center of Rochester_, 1997 WL 723340 (Nov.
19), the N.Y. Appellate Division, 4th Dept., affirmed an ordering
dismissing the complaint of a woman who alleged that her husband -
since deceased from AIDS - was infected with HIV in or about 1980
as a result of using blood products to treat his hemophilia
supplied by the defendant, and that she was herself infected as a
result of her husband's infection.  The complaint raised claims of
medical malpractice, negligence and fraud.  The cryptic memorandum
opinion by the court does not mention when the complaint was filed,
but holds that the negligence and malpractice claims are time-
barred and that the allegations are insufficient to maintain an
action for fraud.  (It is hard to imagine how one could allege
fraud with respect to HIV infection in 1980, years before anything
was known about the transmission mechanism of AIDS, a medical
condition that had not even been named at that time.) A.S.L.

PUBLICATIONS NOTED 

LESBIAN & GAY & RELATED LEGAL ISSUES: 

Friedland, Bernard, and Valerie Epps, _The Changing Family and the
U.S. Immigration Laws: The Impact of Medical Reproductive
Technology on the Immigration and Nationality Act's Definition of
the Family_, 11 Georgetown Immig. L. J. 429 (Spring 1997).

Mazur, Diane H., _Re-making Distinctions on the Basis of Sex: Must
Gay Women be Admitted to the Military Even if Gay Men Are Not?_, 58
Ohio St. L. J. 953 (1997).

Rumney, Philip & Martin Morgan-Taylor, _Recognizing the Male
Victim: Gender Neutrality and the Law of Rape: Part One_, 26 Anglo-
Amer. L. Rev. 198 (April-June 1997).

Serra, Rudy, _Sexual Orientation and Michigan Law_, Mich. Bar. J.,
Sept. 1997, 948-954.  (Author is president of Michigan's Stonewall
Bar Association, PO Box 463, Royal Oak MI 48068-0463.)

Wardle, Lynn D., _The Potential Impact of Homosexual Parenting on
Children_, 1997 U. Ill. L. Rev. 833.

Whitman, Robert, _Including Employment Practice Data in Proxy
Statements_, NY Law Journal, Nov. 6, 1997.

Wu, Angela E., _Spinning a Tighter Web: The First Amendment and
Internet Regulation_, 17 N. Ill. U. L. Rev. 263 (Spring 1997).

_Student Notes & Comments:_ 

Feldmeier, Melissa Manaugh, _Filling the Gaps: A Comprehensive
Review of the Debate Over Same-Sex Sexual Harassment_, 65 U. Cin.
L. Rev. 861 (Spring 1997).

Hamill, Katherine M., Romer v. Evans_: Dulling the Equal Protection
Gloss on_ Bowers v. Hardwick, 77 Boston U. L. Rev. 655 (June 1997).

Note, _A School's Duty to Protect Students from Peer-Inflicted
Abuse:_ Nabozny v. Podlesny_, 92 F.3d 446 (7th Cir. 1996)_, 22 U.
Dayton L. Rev. 317 (Winter 1997).

Ruby, Sam, _"Don't Ask, Don't Tell" and the National Guard: Federal
Policies on Homosexuality in the Military vs. the Militia Clauses
of the Constitution_, 85 Cal. L. Rev. 955 (July 1997).

_Specially Noted:_

The Association of the Bar of the City of New York has published a
committee report endorsing passage of the Employment Non-
Discrimination Act.  52 Record of the Association of the Bar of the
City of New York 735 (Oct. 1997).  The principal drafters of the
report, by the Association's Committee on Sex and Law, are
Committee Chair Marjorie Silver and members Cheryl Davis and
Katharine Huth Parker.

_Also Noted:_

Wiley Law Publications has announced publication of a two-volume
set titled _Sexual Orientation and Legal Rights_, by Alba Conte. 
According to the promotional brochure we have received, this
publication will be similar to other Wiley law treatises, including
textual treatment, model forms, and a survey of state laws, as well
as a case table and index.  Purchasers of the set will receive
update materials on approval from time to time.  The basic price is
$265, plus sales tax, postage and handling.  Copies can be ordered
by telephone from 1-800-879-4539 (reference #8-6287).

AIDS & RELATED LEGAL ISSUES: 

Dhingra-Kumar, N., A.K. Sharma & N. Madan, _Analysis of Quality
Assurance Programmes for HIV Screening in Blood Transfusion Centres
in Delhi_, 75 Bull. World Health Org. No. 3, 223 (1997).

Low-Beer, D., and R.L. Stoneburner, _An Age- and Sex-Structured HIV
Epidemiological Model: Features and Applications_, 75 Bull. World
Health Org. No. 3, 213 (1997).

_Student Notes & Comments:_

Bohannan, Christina, _Product Liability: A Public Policy Approach
to Contaminated Factor VIII Blood Products_, 48 Fla. L. Rev. 263
(April 1996).

Hackleman, Tricia Jonas, _A False Diagnosis as HIV Positive -- Not
Enough for Negligent Infliction of Emotional Distress Damages:_
Heiner v. Moretuzzo_, 652 N.E.2d 644 (Ohio 1995)_, 65 U. Cin. L.
Rev. 991 (Spring 1997).

Note, _Prenatal HIV Testing Under Ohio Revised Code Section
3701.242: The Doctors' Dilemma and the State's Shame_, 22 U. Dayton
L. Rev. 301 (Winter 1997).

EDITOR'S NOTE

Contributing writer Todd V. Lamb's name was inadvertently omitted
from the masthead for the November Law Notes. * * *  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.