LESBIAN/GAY LAW NOTES
ISSN 8755-9021 January 1998

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: Ian Chesir-Teran, Esq., New York City; Otis
R. Damslet, Esq., New York City; Leslie S. Deutsch, Esq., New York
City; Steven Kolodny, Esq., New York City; Todd V. Lamb, Esq., New
York City; Arthur J. Levy, Esq., Brooklyn, New York; Mark Major,
Esq., Long Island, New York; Seth M. Rosen, NY Law School Student,
Brooklyn, New York; K. Jacob Ruppert, Esq., Queens, New York;
Daniel R Schaffer, New York City; Paul Twarog, Esq., New York City;
Dirk Williams, Esq., Boston, Massachusetts; Robert Wintemute, Esq.,
King's College, London, England.

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

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VERMONT SUPERIOR COURT & NEW YORK APPELLATE DIVISION DISMISS
MARRIAGE CHALLENGES

A lawsuit brought by three same-sex couples seeking marriage
licenses was dismissed on the pleadings by the Vermont Superior
Court on December 19.  _Baker et al. v. State of Vermont_, No.
S1009-97 Cnc (Crittendon Superior Ct.).  The decision, which will
be appealed to the state's supreme court, found that the marriage
law could not be construed to authorize same-sex marriages, and
that the marriage law, as so construed, was constitutional under
Vermont's state constitution.  (The plaintiffs did not make federal
constitutional arguments.)  Meanwhile, an intermediate appellate
court in New York held that a same-sex couple in Ithaca sued the
wrong defendant and dismissed their appeal of a marriage license
suit without ruling on the merits. _Storrs v. Holcomb_, No. 80174
(N.Y.App.Div., 3rd Dept., Dec. 24)(_see_ N.Y.L.J., Dec. 30, 1997,
p. 1).

Presiding Judge Linda Levitt's opinion in _Baker_ begins by
rejecting the state's argument that the court should dismiss the
suit as beyond its competence to decide on the merits.  The state
had argued that the decision whether same-sex couples should be
allowed to marry is quintessentially a matter of social policy
within the sphere of the legislature.  Levitt replied that
"separation of powers principles requires our court system to
protect individual civil rights by interpreting and reviewing the
law in light of the Constitution.  Consequently, this Court must
assume the responsibility of resolving the issue at hand."

However, after this hopeful beginning, the course of the opinion is
entirely down hill.

Turning first to the question of statutory interpretation, Levitt
stated that the goal of statutory interpretation is "to determine
the legislative intent behind the statute."  Levitt found that the
plain and common meaning of the term "marriage" found in
dictionaries consisted of the "legal union of a man and woman as
husband and wife," and that, given references in the Vermont
marriage statute to "bride" and "groom," it was clear that the
Vermont legislators had this meaning in mind when they passed the
law.  While conceding that Vermont courts have at times given
rather broad interpretations to statutory language (such as in a
recent case interpreting the adoption statute broadly to allow
second-parent adoptions in gay households), Levitt concluded that
this has been done to further the overall legislative intent
embodied in the statute, and that such a result could not be
reached by broadly construing the marriage law to embrace same-sex
couples.

Turning to the state constitutional challenge, Levitt found that
the standard for review should be the "very deferential . . .
rational-basis review."  The pertinent Vermont provision is known
as the "Common Benefits Clause," which provides: "That government
is, or ought to be, instituted for the common benefit, protection,
and security of the people, nation, or community, and not for the
particular emolument or advantage of any single person, family, or
set of persons, who are a part only of that community..."  This has
been interpreted as the state equivalent of the federal equal
protection clause, and the Vermont courts have found it to contain,
in parallel with the federal provision, both a fundamental rights
and a suspect class strand of analysis.

First looking at the "fundamental rights" strand of jurisprudence,
Levitt concluded that "same-sex marriage" is not a fundamental
right.  The Vermont Supreme Court has used verbiage in construing
this provision drawn from federal fundamental rights cases. 
Looking to those cases for guidance, Levitt found that the U.S.
Supreme Court had consistently linked marriage with procreation, as
had the Vermont courts.  "In various discussions regarding
marriage, the Vermont Supreme Court has consistently spoke [sic] of
opposite-sex relationships, and has recognized the link between
marriage, sexual intercourse, and procreation. . .  Accordingly, we
hold that the applicant couples do not have a fundamental
constitutional right to same-sex marriage."  In support of this
conclusion, Levitt cited the portion of the Hawaii Supreme Court
decision in _Baehr v. Lewin_, 852 P.2d 44 (1993), that rejected a
fundamental rights challenge to the state marriage law in that
case.

Turning next to the "suspect class" analysis, Levitt noted that the
Vermont Supreme Court has not devised a test for determining
suspect class status under the state constitution.  Levitt noted
that most federal courts that have considered the question have
held that "homosexuals do not constitute a suspect class."  She
particularly noted that gays have been successful in obtaining
anti-discrimination legislation in Vermont, concluding that gays as
a class have political clout in the state.  Levitt concluded that
there was "no justification that indicates homosexuals should be
afforded suspect-class status under the Vermont Constitution when
they have not be [sic] given that status under the federal
constitution."

Furthermore, Levitt rejected the argument that excluding same-sex
couples from marriage constituted sex discrimination.  While
conceding that sex classifications would received heightened
scrutiny under the Vermont Constitution, Levitt followed the line
of reasoning from _Singer v. Hara_, 522 P.2d 1187 (Wash.App. 1974),
in which the court declared that the state marriage law did not
discriminate on the basis of sex because two men or two women could
not occupy a relationship that is, by definition, the union of
members of the opposite sex -- a proposition roundly rejected by
the Hawaii court in _Baehr_.  

Levitt fell into the same circular reasoning, commenting:
"Vermont's laws do not treat similarly situated males and females
in a different manner; the statutes apply even-handedly to both
sexes.  No benefit is conferred nor burden imposed upon one sex and
not the other.  Requiring a member of each sex to create a marriage
does not favor one sex over the other, and does [sic] constitute
invidious discrimination based on gender."

Consequently, Levitt concluded that the law would survive judicial
review so long as the state could provide a rational justification
for it.  The state had articulated seven possible justifications
for the law.  Levitt stated that "for the most part" she agreed
with the plaintiffs "that these rationales do not reasonably relate
to a valid public purpose under the Common Benefits Clause." 
However, Levitt observed that the Vermont Supreme Court has adopted
a very deferential version of rational basis review under that
Clause: "distinctions will be found unconstitutional only if
similar persons are treated differently on wholly arbitrary and
capricious grounds."

Using this standard, Levitt found the marriage law justified by
"the State's purported interest in furthering the link between
procreation and child rearing." "While all of the plaintiffs'
arguments claiming the State's public purpose is invalid are clear
and sensible, none is persuasive enough for this Court to determine
that the Legislature is unjustified in using the marriage statutes
to further the link between procreation and child rearing." 
Harking back to the 1970s marriage cases, in which the courts had
"recognized that furthering the link between procreation and child
rearing is a valid public purpose," Levitt concluded: "Though not
flawless, we find that limiting the protection of Vermont's
marriage laws to the legal union of one man and one woman is
reasonably related to the State's interest in furthering the link
between procreation and child-rearing."

Interestingly, this part of the opinion fails to acknowledge that
the Vermont Supreme Court recently upheld second-parent adoptions
by gay parents, _In re B.L.V.B._, 160 Vt. 368 (1993), and that the
state provides domestic partnership benefits for unmarried same-sex
partners of its employees.  Against this background, it is
difficult to imagine that Vermont is dedicated as a state to
ensuring that children be raised by their biological progenitors. 
If the state already recognizes that a same-sex couple can legally
share the parenting of a child, how does it advance the state's
policy to at the same time deny a marriage license to that same-sex
couple?

One is tempted to conclude that Judge Levitt recognized the
validity of the plaintiffs' claims but could not take the political
heat of ruling in their favor, and so fell back on the old
rationale without taking any trouble to attempt to explain it. 
While the whole equal protection analysis is weak, relying
slavishly on the discredited reasoning of the old 1970s marriage
cases, this last portion, in which the judge shoots down all the
state's other purported justifications for the statute and then
settles, without any plausible explanation, on this weak,
sloganeering rationale, is truly pathetic.

The litigation was brought as a test case by three same-sex
couples, each from a different Vermont town, represented by local
attorneys Susan Murray and Beth Robinson and the Boston-based
public interest law firm Gay & Lesbian Advocates & Defenders, with
staff attorney Mary Bonauto primarily responsible for this case. 
The plaintiffs will appeal.  

In _Storrs v. Holcomb_, a New York case that grew out of the
refusal of the city clerk in Ithaca, New York, to issue a marriage
license to a same-sex couple, the Appellate Division refrained from
ruling on the merits of the case, finding that the Supreme Court in
Tompkins County should not have ruled on the merits because the New
York State Health Department is an indispensable defendant not
represented in the case.  Phillip and Toshav Storrs, the gay couple
who sought a marriage license, persuaded the mayor and city council
of Ithaca that they were entitled to one, but ultimately the city
clerk refused to issue the license, relying on instructions from
the state Health Department (the agency charged with overseeing
issuance of marriage licenses) that marriage licenses are not
available for same-sex couples under the N.Y. Domestic Relations
Law.  The Storrs couple had their own religious wedding ceremony
_sans_ license and then sued the city clerk.

Supreme Court Justice Walter J. Relihan (Tompkins Co.) ruled
against the Storrs couple on the merits after the state had
declined to intervene in the case.  _Storrs v. Holcomb_, 645
N.Y.S.2d 286 (1996).  In a unanimous decision, the Appellate
Division decided that Relihan should have dismissed the suit for
failure to join an indispensable party, the state Health
Department, finding that the clerk's action was premised solely on
the "opinions and directives" of the Health Department and that the
Department might be "inequitably affected" if it was not included
in the case to offer a defense of the marriage law on behalf of the
state.  The court noted that the Ithaca city government had wanted
to give a license to the couple; consequently, a true "adversarial
process" was not present in the current litigation.  Rather than
defend the statute, apparently, the city took the defensive posture
that it was merely acting within the restrictions imposed on it by
the Health Department.

The _New York Law Journal_ reported that the Storrs' pro bono
counsel, Kenneth R. Stephens of Accord, N.Y., said that the
plaintiffs have not yet decided whether to seek leave to appeal to
the Court of Appeals or to refile the action with the Health
Department as a defendant.  A.S.L.

LESBIAN/GAY LEGAL NEWS 

Supreme Court Hears Same-Sex Harassment Case

On December 3, the Supreme Court heard oral arguments in _Oncale v.
Sundowner Offshore Services, Inc._, 83 F.3d 118 (5th Cir. 1996),
cert. granted (June 9).  Several justices' questions seemed to
indicate the court of appeals' decision would likely be reversed.

Plaintiff Joseph Oncale alleged a brutal campaign of workplace
harassment.  While everyone involved was male and purportedly
straight, the harassment was blatantly sexual -- including a mock
gang-rape in a communal shower.  Oncale complained repeatedly, but
the perpetrators called the incidents "horseplay" and his employer
took no action.  Finally Oncale quit and sued for, inter alia,
sexual harassment discrimination in violation of Title VII of the
Civil Rights Act.  The sexual harassment claim was dismissed
pursuant to the 5th Circuit's longstanding rule that Title VII does
not apply to same-sex harassment.  (Sundowner's attorney argued
that Congress intended "to level the playing field between men and
women," not to "federalize relationships between men and men.") 
The Supreme Court granted certiorari. 

At oral argument, several of the justices were openly skeptical
of the 5th Circuit's position.  Chief Justice Rehnquist said, "I
don't see how we could possibly sustain the ruling."  Justice
Breyer questioned why it would be impossible for a man to
discriminate against a man, noting "[a] Jew could discriminate
against a Jew.  An African-American against an African-American." 
Concerning lower court decisions that limited same-sex harassment
claims to sexual advances by homosexual supervisors, Breyer said,
"That has to be wrong."  Justice Kennedy observed that under the
5th Circuit's rationale, even a gay supervisor's demand for sexual
favors would not be considered sexual harassment.  Sundowner's
attorney agreed, and Justice O'Connor said, "If we think that's
what they held, I guess we have to say that's wrong."  Justice
Scalia asked, "Why not leave it to the jury?"  None of the justices
expressed support for the 5th Circuit's ruling.

Although a reversal seems almost certain, the precise outcome is
unclear.  Justice Breyer's comments suggest the possibility of a
clear ruling that would equalize same-sex harassment and
opposite-sex harassment.  Chief Justice Rehnquist wrote the Court's
unanimous 1986 opinion recognizing sexual harassment as
discrimination in _Meritor Savings Bank v. Vinson_.  However, given
the currently conservative Court's preference for incrementalism,
a narrow opinion may be more likely: reversing the 5th Circuit's
blanket rule, and leaving a grey area for later clarification. 
_Otis R. Damslet_

9th Circuit Rejects Appeal in Military Case

A panel of the U.S. Court of Appeals for the 9th Circuit rejected
Kenneth L. Jackson, Jr.'s appeal of his discharge from the Air
Force for homosexual conduct.  _Jackson v. U.S. Department of the
Air Force_, 1997 WL 759144 (Dec. 9) (unpublished disposition; to be
listed in table of dispositions in F.3d).  

Jackson was discharged after a 1988 police search of an off-base
house in which he was living with a civilian, Kenneth Lovato,
turned up evidence that Jackson and Lovato were engaged in a
homosexual relationship.  Police were searching the house pursuant
to a warrant, issued due to suspicion that Lovato had engaged in
child molestation.  The police found six greeting cards from
Jackson to Lovato, inscribed with sexually revealing comments, as
well as gay videos, gay pride buttons, and a copy of the ACLU
Handbook _The Rights of Gay People_.   Drawing the obvious
inferences, an Air Force Board of Inquiry concluded that Jackson
had engaged in homosexual conduct and recommended his discharge. 
Under regulations then in effect, Jackson was given an honorable
discharge.

Jackson subsequently sought reinstatement, arguing that the Air
Force lacked substantial evidence that he had engaged in homosexual
conduct, but the court wasn't buying this argument.  The court also
rejected Jackson's contention that his discharge violated Equal
Protection, noting that the 9th Circuit recently upheld the
discharge of a gay servicemember for engaging in sexual activity in
_Philips v. Perry_, 106 F.3d 1420 (9th Cir. 1997).  The court of
appeals also upheld the trial court's refusal to grant additional
discovery to Jackson, noting that his suit seeking review of an
administrative determination was bounded by the administrative
factual record.  A.S.L.

 7th Circuit Rules Prison Not Required to Provide Treatment for
Gender Dysphoria

 The U.S. Court of Appeals for the 7th Circuit ruled on Dec. 9 that
a trial court correctly dismissed a suit by a transsexual prisoner
seeking estrogen treatment, rejecting a claim that denial of such
treatment constitutes cruel and unusual punishment under the 8th
Amendment.  _Maggert v. Hanks_, 1997 WL 757446.  In a decision by
Chief Judge Richard Posner, the court concluded that prisoners are
not entitled to medical care that in the civilian world would only
be available to the "wealthy."

When prisoner Tasha Maggert claimed to be gender dysphoric and
requested treatment, the prisoner hired a psychiatrist to examine
Maggert and supervise treatment.  The psychiatrist refused to
prescribe estrogen, instead recommending that Maggert continue to
see the prison psychologist for counseling.  The psychiatrist had
concluded that Maggert did not actually have gender dysphoria,
stating that Maggert's "sexual identity is polymorphous and his
sexual aims ambiguous."  Judge Posner noted that Maggert had "not
submitted a contrary affidavit by a qualified expert and so has not
created a genuine issue of material fact that would keep this case
alive."  

Ordinarily, that comment would dispose of the matter.  But Posner,
author of the controversial book _Sex and Reason_, was apparently
looking for an excuse to deal more generally with the issue of the
constitutional standard for dealing with prisoner claims to
treatment for gender dysphoria, and this case provided the excuse. 
Posner asserted that gender dysphoria is a "rare condition" but
that enough prisoners were filing claims to have generated a body
of "jurisprudence of transsexualism" of a "problematic character."

Posner's analysis of the situation proceeds along the following
lines:  First, the 8th Amendment forbids prisons from ignoring
"serious medical afflictions" of prisoners.  Gender dysphoria "is
a serious psychiatric disorder, as we know because the people
afflicted by it will go to great lengths to cure it if they can
afford the cure.  The cure for the male transsexual consists not of
psychiatric treatment designed to make the patient content with his
biological sexual identity -- that doesn't work -- but of estrogen
therapy designed to create the secondary sexual characteristics of
a woman followed by the surgical removal of the genitals and the
construction of a vagina-substitute out of penile tissue. . . 
Someone eager to undergo this mutilation is plainly suffering from
a profound psychiatric disorder."  Consequently, the prison is not
free to ignore the gender dysphoric prisoner's need for medical
treatment.

"Yet," insists Posner, "it does not follow that the prisons have a
duty to authorize the hormonal and surgical procedures that in most
cases at least would be necessary to `cure' a prisoner's gender
dysphoria."  Posner describes the procedures as "protracted and
expensive" and observes that Medicare does not cover them and, with
rare exceptions, Medicaid does not cover them either.  "A prison is
not required by the 8th Amendment to give a prisoner medical care
that is as good as he would receive if he were a free person, let
alone an affluent free person. . .  Withholding from a prisoner an
esoteric medical treatment that only the wealthy can afford does
not strike us as a form of cruel and unusual punishment.  It is not
unusual; and we cannot see what is cruel about refusing a benefit
to a person who could not have obtained the benefit if he had
refrained from committing crimes.  We do not want transsexuals
committing crimes because it is the only route to obtaining a
cure."

So where does that leave transsexual prisoners?  According to
Posner, "except in special circumstances that we do not at present
foresee, the 8th Amendment does not entitle a prison inmate to
curative treatment for his gender dysphoria.  Of course, as the
cases have already established, he is entitled to be protected, by
assignment to protective custody or otherwise, from harassment by
prisoners who wish to use him as a sexual plaything, provided that
the danger is both acute and known to the authorities."

Posner does not address (out of ignorance or deliberate oversight?)
the frequently recurring question of whether a prisoner who was in
the course of estrogen treatment when subjected to confinement is
entitled to a continuation of that treatment while incarcerated in
order to maintain her physical status.  Posner's use of the term
"mutilation" also betrays a rather unfortunate lack of empathy with
the people whose needs he so blithely dismisses in this egregious
display of dicta.  A.S.L.

5th Circuit Rules That Calling Someone a "Faggot" is Per Se
Defamation in Texas

When George Plumley, who was assisting his son, Wesley, in buying
a truck from Landmark Chevrolet, Inc., revealed to Hamilton, the
salesman, during a discussion on financing for the purchase that he
had AIDS.   Allegedly, Hamilton rudely repudiated the deal, stating
"we just don't want your business."  The salesman also allegedly
asked Wesley if he had a "fucking problem" and called Plumley a
"fucking faggot."  These comments were made in the presence of
Plumley's daughter-in-law and her young daughter.  As a result of
this incident, Wesley bought his truck elsewhere, and George filed
suit against Landmark and the salesman.  _Plumley v. Landmark
Chevrolet, Inc._, 122 F.3d 308 (5th Cir., Sept. 24, 1997).  Plumley
subsequently died and his wife Diane was substituted as named
plaintiff.  Plumley had asserted claims of slander, intentional
infliction of emotional distress, and violations of the Texas
Deceptive Trade Practices Act and the Americans With Disabilities
Act, Title III (public accommodations).  The district judge granted
summary judgment on all claims for the defendants.

Writing for the circuit court, Judge Duhe affirmed the district
court on all counts save one: the slander claim.  Duhe commented
that the district court had "erroneously held that the slander
cause of action did not survive Plumley's death."  Although it is
true that you can't slander the dead, you can slander them while
their still alive and owe compensation to their estates!  

Landmark had also argued that there was no publication of the
slanderous comment and no proof of special damages.  But Duhe
asserted that proof of special damages is not required, because
calling somebody a "faggot" in Texas is slander per se.  "Landmark
argues that Hamilton's comment was not slander per se because the
only crime imputed is sodomy which in Texas is a misdemeanor
punishable by fine only.  We disagree.  _Head v. Newton_, 596
S.W.2d 209, 210 (Tex.Civ.App.--Houston [14th Dist.] 1980, no writ),
holds that calling someone `queer' is slander per se even though
sodomy is a misdemeanor no longer punishable by imprisonment. 
Thus, when Hamilton called Plumley a `faggot', Hamilton imputed the
crime of sodomy to Plumley.  Therefore, the alleged remark is
slander per se and Plumley does not have to prove special damages."

As to publication, Landmark argued that for a statement to be
defamatory, the third party to whom it is uttered must believe the
substance of it, and in this case there is no evidence that
Plumley's daughter-in-law had believed it or that the daughter-in-
law's daughter was old enough to understand it.  Again the court
stated its disagreement.  So long as the third party "understands
the words in a defamatory sense," publication has occurred; in this
case, whether the daughter-in-law understood the statement as
defamatory was a question of fact for trial.

Consequently, plaintiff made out a prima facie case and was
entitled to trial of the slander claim.  However, the court found
that an emotional distress claim does not survive the death of the
plaintiff, and that Plumley was not a "consumer" within the meaning
of the Texas statute, because he was not buying the truck for
himself, merely loaning some of the purchase price to Wesley, and
Wesley had not joined the case as a plaintiff.

However, the court upheld dismissal of all other claims, most
significantly the Americans With Disabilities Act Title III claim. 
This claim alleged that the dealership refused to deal with Plumley
because he had AIDS.  The court observed that the remedy under
Title III is limited to injunctive relief.  Since Wesley bought his
truck elsewhere and Plumley is dead, injunctive relief is not
necessary under the circumstances.  "Plumley has died and his son
bought another truck," wrote Duhe: "It is unlikely that Landmark
will wrong Plumley again."  Further, the court held that at this
point there is not an actual case or controversy under the ADA
sufficient to grant a declaratory judgment: "No actual controversy
exists between Plumley and Landmark because Plumley is deceased and
Wesley has bought another truck.  For these reasons, we hold that
Plumley's ADA claims do not survive." 

* * * Two other cases involving gay-related slander charges
resulted in significant jury verdicts in December.  The _Cincinnati
Inquirer_ (Dec. 19) reported that a Boone County jury had awarded
$175,000 in damages to a high school health teacher who claimed she
was defamed when a parent wrote letter impugning Mary Sargent's
professional status as a teacher and suggesting that she might be
a lesbian, in response to Sargent's presentation of a video in
health class dealing with gay bashing and other gay-related issues. 
And the _Tulsa World_ (Dec. 13) reported that a civil jury had
awarded two Tulsa women $340,000 in a slander lawsuit against a
minister who had told his congregation during a worship service
that the women were engaged in a lesbian affair.  Each of the women
received $20,000 for slander, $150,000 for invasion of privacy, and
$2 for intentional infliction of emotional distress.  (Imaginative
jury, that!)  The minister testified that he had a right to
"rebuke" the women for engaging in conduct violative of religious
morality, but it appears that the women were not members of the
church.  A.S.L.

Kentucky Appeals Court Applies Domestic Violence Law to Gay Couple

A major victory in the battle for legal recognition of same sex
relationships was obtained in _Ireland v. Davis_, 1997 WL 763466
(Ky. App., Dec. 12), where a Kentucky Court of Appeals reversed two
lower courts and ruled that people in same-sex "intimate
relationships" could obtain orders of protection under the state
domestic violence statutes.

The parties had been in such a relationship, but things had taken
such a turn that Ireland filed a domestic violence petition in the
state District Court, alleging that he had been abused by Davis,
and a Domestic Violence Order (DVO) was granted.  This order
prohibited Davis from having any contact with Ireland.  A few
months later, Ireland filed a petition alleging that Davis had
violated the order, and a show cause warrant was signed by a
District Court judge.  This order was set aside by another District
Court judge, who dismissed the entire proceeding on the stated
grounds that he lacked jurisdiction under the domestic violence
statutes because both Ireland and Davis were of the same gender. 

Ireland appealed to Fayette Circuit Court, but the dismissal was
affirmed.  The matter was before the state Court of Appeal on
discretionary review.  

The relevant statutes on point, which were revised in 1992, are
stated in gender neutral terms, referring to "family members" and
"member of an unmarried couple."  "Member of an unmarried couple"
is defined as "each member of a of an unmarried couple which
allegedly has a child in
common, any children of that couple, or a member of an unmarried
couple who are living together or have formerly lived together." 
The circuit court had ruled that "member of an unmarried couple"
was ambiguous in that it defined the term using the same term. 
Citing state rules of judicial construction of statutory language,
the circuit court had referred to the prior domestic violence
statute for clarification.  Since the prior statute required that
an unmarried couple have a child in common to be afforded domestic
violence protection, and since the court believed that same-sex
couples could not have a child in common, the circuit court had
ruled that the new statute did not afford protection to same-sex
couples.

The Court of Appeal categorically rejected this reasoning, stating
that the amendments to the domestic violence statute extended
protection to a new class of people: "those members of an unmarried
couple who either are living together [sic] or have lived
together but who do not have a child in common."  The Court of
Appeal noted that the new statute is gender neutral and did not
specifically include or exclude same-sex couples.  To apply the
rule of statutory construction used by the circuit court would have
the effect of vitiating the revision expanding the law's ambit to
include unmarried childless couples. 
The lower court's concern that this might extend domestic violence
protection to "roommates" (who are not included under the terms of
the domestic violence statute) was rejected as groundless, the
Court of Appeals ruled, because the law already requires that such
inquiry be made with regard to unmarried couples in this situation
who seek protection under the domestic violence statute.

The District Court's final conclusion that same-sex couples have
other avenues of relief, via criminal complaint in a criminal
action or restraining order in a civil proceeding was rejected
because it "begs the question" and denies these couples "the same
protection that other couples are afforded."

The Court of Appeal concluded: "In short, we hold that the state
domestic violence statutes afford protection to same-sex couples
just as they do to the others enumerated herein.  The General
Assembly has not given preferential treatment to same-sex couples
or homosexuals; rather, it has provided for equal treatment under
the law for same-sex or homosexual victims of domestic violence." 
From this writer's point of view, court decisions don't get much
sweeter than that. 

Interested readers are referred to the dissenting judge's opinion
to see the bizarre lengths to which a judge can go to reach a
contrary conclusion.  Among other points, the dissenting judge
calls the majority opinion a denial of equal protection because it
protects only the members of a _couple_ in an intimate
relationship, and not the members of an intimate relationship which
includes _more_ than two people.  _Steven Kolodny_

Texas Appeals Court Rules Out Testimony About Homosexuality of
Murder Victim

Affirming a manslaughter conviction, the Texas Court of Appeals
denied a bid to admit testimony on the victim's sexual orientation
as "hearsay."  _Harwood v. State_, 1997 WL 730695 (Nov. 26). 
Michael Harwood was convicted of voluntary manslaughter and
sentenced to ten years probation and fined $10,000.

In his confession, Harwood, who was 16 in 1994 when the murder took
place, admitted shooting John Burwell, 26, twelve times in the neck
at close range and dumping his body off a bridge.  Harwood wrote in
his confession that Burwell had been sexually molesting him for
over a year and that when he shot him, Burwell had been trying to
force him to have oral sex.

Harwood used a post-traumatic stress disorder defense.  There was
testimony that Burwell had given Harwood alcohol and provided him
with pornographic movies on a regular basis.  Harwood also raised
a self-defense claim, and tried to show that Burwell acted
similarly with other teenagers.  The defense also presented
evidence to show that Burwell acted in concert with another man,
Mark Alvarado, and that Alvarado sexually molested  Harwood for
five years prior to having "given" him to Burwell at a party where
they both raped him.

Harwood appealed his conviction, objecting on various points.  Of
particular interest is the objection that the defense was not
allowed by the trial judge to cross examine the medical examiner,
Dr. Robert Bux, about Burwell's sexual orientation.  Chief Justice
C.J. Hardberger, writing for the court, rejected this claim,
calling such testimony "hearsay" and saying that it was "clearly
not relevant."  The court found that Burwell's being a homosexual,
by itself, would not support Harwood's claim that Burwell had
abused him.

The defense also claimed that there was a police cover-up of
Burwell's sexual orientation and attempted assault of Harwood.  The
court rejected this claim.  In order to show relevance, the court
ruled, the cover-up would have had to have been about Burwell's
abusive character or pedophilia.   _Daniel R Schaffer_

Tennessee Appeals Court Remands Custody Determination

The Tennessee Court of Appeals ruled Dec. 12 that a trial court
should take a second look at the issues of custody and visitation
in _Rasmussen v. Rasmussen_, 1997 WL 764467, a case in which the
ex-wife's relationship with a lesbian was raised by the husband as
a justification for ending a joint custody arrangement.  

Bridget and Leif Rasmussen were married only two years and their
son was less than one year old when they separated in July 1995. 
Bridget moved to Virginia to live with her parents.  Leif, a member
of the armed forces, was relocated for a four year assignment in
Arizona during the divorce trial.  The trial court heard testimony
that Bridget was an indifferent mother, and that she had, in the
words of the trial judge, an "unnatural relationship . . . with
another woman."  The trial court decided to give the parties joint
custody but to make Leif the primary custodian and grant visitation
rights to Bridget.  At the time of this initial award, Leif was
still stationed at a base in Kentucky.  After his transfer was
announced, the trial court held another hearing and worked out a
visitation schedule.  Bridget filed an appeal, seeking primary
custody, arguing that the child would be better off living with her
and her parents in Virginia, since Leif would be in a training
program leaving little time for parenting.  

In the court of appeals, Leif argued "that the proven behavior of
the wife with an admitted lesbian is sufficient to disqualify her
for primary custody of the child."  Bridget denied that she is a
lesbian, although she admitted having an "association" with a
lesbian; she argued that this did not disqualify her for primary
custody.

Judge Todd wrote for the court: "In the present case, the
detrimental effect of lesbianism upon a 2 or 3 year old child is
not shown with sufficient clarity to justify a reversal of the
continued shared custody. . .  Neither party to the present
proceeding presents an ideal candidate for child custody.  However,
neither is shown to be disqualified.  The best interests of the
child do not appear to have been fully developed.  The distance
between the residences of the parties is a formidable difficulty in
the transfer of physical custody.  The effect of these difficulties
upon the well-being of the child is not sufficiently explored in
the present record to enable this Court to make a satisfactory
determination of the issue, which should be the subject of a
further hearing. . ."

Dissenting, Judge Koch complained that the court's opinion
overlooked the well-developed trial record and provided no guidance
to the trial court about what additional facts remained to be
"developed."  Noting that the trial court had attempted to work out
an appropriate visitation schedule but that its order was not
"entirely clear," Koch agreed that an appropriate trial court
should work out a clear, workable visitation schedule for Bridget,
but suggested that the parents and the trial court "should
carefully consider whether the Chancery Court of Montgomery County
(Tennessee) is the proper forum for litigating custody and
visitation issues."  A.S.L.

Successful Settlement of N.J. Adoption Suit

Following up on the Oct. 22 decision by New Jersey Superior Court
Judge Sybil Moses allowing Michael Gallucio and Jon Holden to
jointly adopt their foster son Adam, New Jersey's State Home
Services Department has agreed to settle the class-action portion
of their lawsuit by adopting a formal policy that will grant equal
treatment to unmarried couples, regardless of gender or sexual
orientation, in the state's adoption process.  

The settlement in _Holden v. N.J. Dept. of Human Services_,
negotiated by ACLU Lesbian and Gay Rights Project staff attorney
Michael Adams on behalf of an organization of approximately 200 New
Jersey lesbian and gay families, marks the first time that a state
child welfare agency has adopted a formal policy authorizing same-
sex couples to adopt children in the same manner that married
couples adopt.  As such, it drew widespread media attention,
including predictions of a possible legislative backlash in some
parts of the country (similar to the legislative backlash to the
Hawaii Supreme Court's 1993 decision on same-sex marriage).  Many
of the news reports made clear that same-sex couples in several
states have been obtaining joint adoptions through individual court
actions, although two state supreme courts have ruled against the
practice and two other states statutorily bar gays from adopting
children.  

The new policy will embodied in a settlement agreement approved by
the court, and presumably will become part of the agency's
published operating procedures.  A.S.L.

Illinois, Nevada Federal Courts Deny Summary Judgement to
Defendants in Same-Sex Harassment Cases

U.S. District Judge Stiehl (S.D.Ill.) denied a defense motion for
summary judgment in _Wilcox v. Dome Railway Services_, 1997 WL
760191 (Sept. 15), a same-sex harassment case brought under Title
VII of the Civil Rights Act of 1964.  Plaintiff Danny Wilcox is
claiming hostile environment sexual harassment at the hands of
fellow employee Mark Meyers.

Judge Stiehl noted that the 7th Circuit has recently issued
decisions in same-sex harassment cases holding that Title VII
should be construed to extend to same-sex harassment where the
plaintiff can show that he or she was selected for harassment of a
sexual nature.  However, Stiehl noted that Title VII would not
cover cases where harassment was due to personal animosity that
existed apart from the genders of the parties.  In this case,
Stiehl found that there were significant factual issues that would
have to be resolved to determine whether this case fell within the
definition of actionable sexual harassment prescribed by the
circuit court, and thus denied the defendant's motion for summary
judgment.  

Similarly, in _Rasmussen v. Copeland Lumber Yards, Inc._, 1997 WL
769366 (D.Nev. Oct. 31), U.S. Magistrate McQuaid denied a defense
motion for summary judgment on a same-sex hostile environment
harassment claim.  In this case, plaintiff Dale Rasmusson alleged
that his male supervisor, George Dimitrievski, engaged in sexually
harassing conduct toward Rasmusson and other men in the workplace,
but not toward women.  The company claims this is just one of those
"boys will be boys" cases, but Magistrate McQuaid was not inclined
to rule on the case without a trial of the facts.  Although the 9th
Circuit has not pronounced on the question yet, McQuaid noted the
overwhelming authority from other circuits (apart from the 5th, of
course) recognizing a cause of action for same-sex harassment, and
found that Rasmusson's allegations certainly suggested that a
particular male supervisor was singling out male employees for
unwanted abuse of a sexual nature in the workplace.  A.S.L.

2nd Circuit: Military Ban on Lascivious Material
Constitutional

By a 2-1 decision, the U.S. Court of Appeals for the 2nd Circuit
vacated a permanent injunction barring enforcement of the Military
Honor and Decency Act of 1996, 10 U.S.C. 2489a (the Act).
Plaintiff-Appellee trade associations representing the periodical,
book, record, and video industries, supported by the amicus curiae
Feminists for Free Expression, had obtained the injunction on
grounds that the Act violates the Free Speech Clause of the First
Amendment and the Due Process Clause of the Fifth Amendment.  The
decision in _General Media Communications, Inc. v. Cohen_, 1997 WL
732329 (Nov. 21), supported by the amicus curiae Family Research
Council Military  Readiness Project, frees the
Defendants-Appellants Secretary of Defense and D.o.D. to enforce
the Act's ban on sale or rental of sexually explicit material on
property under the jurisdiction of the D.o.D. including military
exchanges.

The court held, in an opinion by Circuit Judge Cabranes, that the
Act is a reasonable restriction on the content of speech designed
to further the legitimate governmental interest of precluding any
appearance that the military endorses explicit materials sold in
military base exchanges.  Because the Act restricts speech in a
nonpublic forum in a viewpoint-neutral manner, it does not violate
Free Speech.  

In a dissenting opinion, Judge Parker observed that the Act does
not prohibit the distribution of all sexually explicit material or
depictions of nudity but only those materials whose dominant theme
"depicts ... nudity ... in a lascivious way." "Lascivious" is
defined as "lewd and intended ... to elicit a sexual response." 
Judge Parker believes that in banning only lascivious content, the
government is engaging in viewpoint discrimination.

The court concluded that the Act's restrictions on periodicals and
audio and video materials but not on books survived rational-basis
Fifth Amendment Equal Protection analysis.  Focusing on the
military context, the court also disagreed with the district
court's finding that the Act was sufficiently vague as to violate
the Due Process Clause. _Mark Major_

Pedophile Wins Reversal of Attempted Rape Charge

Charles Fowler won a reversal of his conviction of attempted
statutory rape in _State v. Fowler_, 1997 WL 779116 (Tenn. Crim.
App., Dec. 17).  Fowler was arrested by an undercover officer after
he allegedly paid the officer $200 for procuring an underage boy
for him.  Indicted for an attempt to purchase a minor child,
attempt to commit statutory rape, and patronizing prostitution,
Fowler succeeded in shaking off two of the charge prior to and
during trial, but was convicted on the rape charge.  On appeal, the
court found that the undercover officer sprung the trap too soon,
arresting Fowler immediately after he handed over the $200 check. 
At this point, Fowler had not engaged in any overt act that would
amount to an attempt to commit statutory rape, so the charge was
premature.  As a result of this ruling, Fowler escapes 9 months in
the county jail and a $2500 fine.

Maine Rights Law Repeal on the Ballot February 10

The Maine gay rights law will be put up for a referendum vote on
February 10, 1998.  The law was passed last spring but never went
into effect because an opposition group, the Christian Civic
League, gathered sufficient signatures for a "people's veto"
referendum, a procedure under the Maine constitution that blocks
legislation from going into effect when the Secretary of State
certifies that signatures in numbers at least equal to 10% of the
total vote for Governor cast at the most recent election have been
obtained by petitioners.  The Secretary so certified on October 20. 


Supporters of the law filed a challenge in the Superior Court,
Cumberland County.  _Remmel v. Gwadosky_, No. AP-97-112.  On
November 21, Justice Roland Cole issued an order adversely deciding
all the questions raised by the petitioners in their challenge to
signatures, finding, in effect, that none of the errors alleged by
the petitioners were fatal to the validity of the signatures.  (All
of the alleged errors submitted to the judge could be characterized
as "technicalities" in some sense.)  

Maine voters rejected an anti-gay ballot measure by a comfortable
margin recently, and the number of petition signers was only about
12% of the last Gubernatorial election turnout, so it appears that
the repeal does not have overwhelming support.  On the other hand,
since the vote will be held at a special election rather than a
general election where other matters are also on the ballot,
turnout is likely to be low and the most motivated anti-gay voters
are likely to turn out, so defenders of the law are not taking the
referendum lightly.  A.S.L.

Law & Society Notes

Reacting to the Massachusetts Supreme Judicial Court's ruling in
_Doe v. Attorney General_, 1997 WL 709859 (Nov. 17), which held
that the state's draconian sex offender registration and
notification law could not be applied with affording a hearing to
low-level offenders to determine their degree of dangerousness,
state officials have moved to undercut the hearing requirement by
suspending the registration requirement for persons convicted of
two kinds of offenses: indecent assault and battery on an adult,
and open and gross lewdness.  This change would effectively end the
registration requirement for gay men caught up in rest-stop sting
operations such as the John Doe plaintiff in the above-cited case. 
_Worcester Telegram & Gazette_, Dec. 3.

Two gay city council victories occurred in early December
elections.  In Houston, Texas, Annise Parker, an openly-lesbian
businesswoman, won a run-off election to become the city's first
openly gay council member, receiving 57.9 percent of the vote in a
contest for an at-large seat.  Parker is a Democrat.  In
Washington, D.C., David Catania, an attorney at the firm of Akin,
Gump, Strauss, Hauer & Feld, became the first openly-gay member of
the city council with 43 percent of the votes in a multi-candidate
field seeking an at-large seat.  Catania is a Republican.

Deep in the heart of Mormon country, the city council in Salt Lake
City, Utah, approved an employment discrimination ordinance that
includes protection against discrimination on the basis of sexual
orientation for city employees.  Further east, the city of Athens,
Ohio, passed an ordinance that forbids sexual orientation
discrimination within the city in housing, public and private
employment, and public accommodations.

Responding to correspondence from Lambda Legal Defense & Education
Fund and U.S. Rep. Barney Frank (D.-Mass.), the Pentagon has
reversed its former policy of denying recognition to gay student
groups at Defense Department-operated high schools on overseas
military bases.  The issue surfaced when a Defense official ordered
an end to meetings by such a student group at a DOD-operated high
school in Japan.  Almost a year after Lambda first inquired about
the policy, the General Counsel of the Defense Department announced
new "group counseling protocols" (just love that DoD bureaucratic
lingo) that prescribe non-discriminatory rules for student support
groups at DoD's civilian high schools worldwide.  Lambda staff
attorney David Buckel initiated the correspondence with the
Pentagon.

On Dec. 1, the Supreme Court denied certiorari in _Lumpkin v.
Brown_, 109 F.3d 1498 (9th Cir. 1997), in which the lower court
found that San Francisco's mayor had not violated the constitution
by removing a Rev. Eugene Lumpkin, Jr., a proclaimer of homophobic
statements, from the city's human rights commission.  The 9th
Circuit had stated that while Lumpkin had a 1st Amendment right to
state his views about homosexuality, that amendment did not "assure
him job security when he preached homophobia while serving as a
city official."  _Reuters_, Dec. 1.  The court also denied
certiorari in _Johnson v. Knowles_, 113 F.3d 1114 (9th Cir. 1997),
in which the lower court turned down a lawsuit by two gay
Republicans who had been deposed from membership by their county
Republican committee.  The lower court found their claims non-
justiciable.  _Washington Times_, Dec. 2.

Human Rights Campaign announced Nov. 26 that outgoing Secretary of
the Air Force Sheila Widnall had issued a memorandum on Oct. 29
summarizing the department's equal opportunity policies that
included sexual orientation as a forbidden basis for discrimination
against civilian employees.  

Orange County, California, Superior Court Judge Gary Ryan held that
a woman could not obtain an annulment of her marriage to her
transsexual husband because, under California law, the marriage is
not voidable on this ground as the female-to-male sex change
undergone by Joshua Vecchione is recognized by California law as
making Joshua a legal male.  Kristie Vecchione sought the annulment
on the ground that California does not recognize same-sex
marriages, but Judge Ryan found that this is not a same-sex
marriage.  The couple has a daughter, conceived by donor
insemination using sperm donated by Joshua's brother.  Had the
marriage been annulled, Kristie as the biological mother would
automatically have custody.  Since the couple will have to go
through the normal divorce process, custody must be litigated. 
_Vecchione v. Vecchione_ (Cal.Super.Ct., Nov. 25). _Associated
Press_, Nov. 26.

A New Bedford, Massachusetts, gay couple has settled a lawsuit
against First Citizens Federal Credit Union, which had refused to
take their joint application for a loan.  A bank officer had told
them that because their relationship was not "like a marriage,"
they could not jointly qualify for the debt consolidation loan. 
Under the settlement, the credit union issued a letter of apology
and a payment of $5,000.  Massachusetts law forbids sexual
orientation discrimination by places of public accommodation. 
_Boston Globe_, Dec. 17.

Two gay men arrested for hugging each other in a public park in
Colorado Springs got the last laugh on the vice squad when the city
agreed to pay them $10,000 to settle their $1.1 million civil
rights lawsuit.  Michael Mahair and Dwayne Arellano alleged that a
police officer tried to entrap them by soliciting sex in the park
and then arrested them for hugging each other in public.  No PDA's
in Colorado Springs?  _Rocky Mountain News_, Dec. 20.

A three-judge panel of the Pennsylvania Superior Court ruled that
a transsexual is entitled to a legal name-change.  _Harrisburg
Patriot_, Dec. 17.  The ruling, on a petition by Brian Harris a/k/a
Lisa Harris, reversed a decision by a county court judge.  The
trial judge had based his decision on prior rulings denying name
changes to men who had received hormone therapy but no surgery.  By
contrast, Harris has undergone facial and breast operations to
alter appearance.  "We believe the trial court's reading to be
unnecessarily narrow and decline to adopt it," wrote Judge Peter
Paul Olszewski.  "We believe that the better-reasoned approach is
to require such a petitioner to demonstrate that he or she is
permanently committed to living as a member of the opposite sex." 
Dissenting Judge Thomas Saylor objected that since Harris was still
anatomically male, allowing the name change would allow him to
"perpetuate a fiction."  Concurring, Judge Zoran Popovich said the
only issue is whether the new name is intended to defraud, and that
such intent was lacking here.

The _Advocate_ (Dec. 23) reported that the South Dakota Supreme
Court ruled that a local school board had unfairly discharged a
veteran teacher for answering a student's questions about
homosexuality.  We were unable to find any such decision in
computer databases.  A.S.L.

Domestic Partnership & Marriage Notes:

On Dec. 11 the Madison, Wisconsin, teachers union ratified a
collective bargaining agreement with the city's School Board that
will provide benefits to same-sex or opposite-sex domestic partners
of the teachers covered by the agreement.  The School Board
ratified the agreement on Dec. 15.  However, State Representative
Steve Nass (R.-Whitewater) announced that he was drafting a bill to
forbid the use of state funds to provide domestic partnership
benefits to unmarried partners of local government employees. 
Since the state provides about two-thirds of the funding for local
education, this could effectively stop the program, which is
supposed to take effect by June 1 under the terms of the collective
bargaining agreement.  _Wisconsin State Journal_, Dec. 12; _Capital
Times_, Dec. 16.

The Hawaii Supreme Court rejected an attempt by a group of state
legislators to intervene in the gay marriage case in order to
defend the state's policy of allowing only opposite-sex couples to
marry.  The Dec. 19 decision, issued without opinion, in the
pending case of _Baehr v. Miike_, affirmed a ruling by Circuit
Judge Kevin Chang.  The appeal in the case has been submitted to
the Supreme Court and is now awaiting decision.  _Honolulu
Advertiser_, Dec. 20.

A heterosexual employee of the city of Oakland, California, Majid
Ayyoub, filed a discrimination complaint with the state's Labor
Department when the city refused to let him enroll his female
domestic partner in the city's benefits program, which covers only
same-sex domestic partners.  State Labor Commissioner Jose Millan
ruled that the city's policy discriminates against heterosexuals in
violation of the Labor Code, which prohibits sexual orientation
discrimination, and is threatening to sue the city if it does not
extend its policy to opposite-sex couples.  This could provoke the
city to repeal its program, since costs are expected to increase
substantially if opposite-sex couples must be covered.  Millan's
ruling was upheld on appeal by John Duncan, acting director of the
state's Department of Industrial Relations, on Nov. 14.  The ruling
is seen as presenting a significant barrier to the recent decision
by the University of California trustees to adopt a domestic
partnership program for same-sex partners of University employees,
although nobody has yet filed a discrimination claim against the
University.  (Could this be a nefarious plot by the Wilson
Administration, staunchly anti-domestic partner benefits, to
scuttle the University plan, which Wilson had voted against in his
role as a trustee?)  _San Francisco Chronicle_, Dec. 3.

A commission appointed by Colorado Governor Roy Romer to
investigate inequities facing same-sex couples and to recommend
state policies has gotten off to a slow start, according to the
_Denver Post_ (Dec. 27), which reported that the Commission will
not meet its March 1 deadline to report to the Governor.  The
Commission, chaired by Bishop William J. Winterrowd of the
Episcopal Diocese of Colorado, has met only twice since it was
appointed in September, and has scheduled public hearings around
the state during March.

Newton, Massachusetts, joins the list of municipalities extending
health and pension benefits to domestic partners of city employees. 
The Dec. 15 measure, which was supported by Mayor Thomas Concannon,
will also extend benefits to relatives living with municipal
employees.  Opponents of the measure vowed to petition for a repeal
referendum.  _Boston Globe_, Dec. 17.

Responding to lobbying by openly-gay Canadian Member of Parliament
Svend Robinson, the Commons Board of Internal Economy has adopted
a plan under which the partners of MP's can get the same free
airline travel privileges enjoyed by spouses of heterosexual MP's. 
Under the plan, MP's can designate anyone with whom they live to
enjoy the benefit, provided the MP's designated traveller signs a
consent form agreeing to place his or her name in a public partners
registry.  _Ottawa Citizen_, Dec. 6.

Tainted money?  The Colorado Legal Initiatives Project, a Denver-
based gay legal group, rejected a donation from United Airlines,
because United is a plaintiff in a lawsuit seeking to invalidate
San Francisco's ordinance requiring city contractors to provide
domestic partnership benefits to their employees.

The Executive Council of the American Psychoanalytic Association
has signed on to the "marriage resolution" that Lambda Legal
Defense & Education Fund drafted and has been circulating among
various organizations to stimulate a discussion on the same-sex
marriage issue.  The December 18 announcement by APA President Dr.
Marvin Margolis responded to an initiative by the Association's
Committee of Issues on Homosexuality.  A.S.L.

International Notes

The constitutional tribunal in Ecuador has invalidated the nation's
law against consensual homosexual sex.  In a Nov. 25 ruling, the
tribunal announced that Art. 516, Pt. 1, of the Penal Code, was
unconstitutional.  This provision imposed prison terms of 4-8 years
for consensual homosexual relations, and had been used to harass,
discriminate against and persecute lesbians, gay men, bisexuals and
transgender persons.  _Int'l Gay and Lesbian Human Rights
Commission Press Release_, Dec. 1.

The Canadian province of Newfoundland voted to add sexual
orientation to its human rights code covering employment, housing
and access to public accommodations and services.  As a result,
only the provinces of Alberta and Prince Edward Island now lack a
formal prohibition on sexual orientation discrimination. 
_Associated Press_, Dec. 13.

The New Zealand Court of Appeal issued its decision December 17
holding against three lesbian couples who sued for marriage
licenses.  _Quilter and Pearl et al. v. The Attorney General_, No.
CA 200/96.  The five-member court unanimously found that New
Zealand's marriage law could not be construed to authorize issuing
licenses to same-sex couples.  A majority of the court also found
that the marriage law did not unlawfully discriminate against the
plaintiffs, despite provisions of New Zealand law barring both
sexual orientation and sex discrimination.  Two of the judges did
find such discrimination, noting, however, that under the New
Zealand legal system, the court of appeal does not have authority
to declare a parliamentary act to be violative of another
parliamentary act, in this case the Bill of Rights Act.  However,
these judges who found discrimination to exist noted that the
Parliament should examine the question, in light of international
human rights treaties to which New Zealand is party.  The full text
of the opinions of the judges (most of them rather lengthy) can be
found on-line at the following address, as posted by Action for Gay
Marriage, a New Zealand activist organization:
<http://www.base2.co.nz/agm/agm.html>.  A.S.L.

British Court Supports Gay Adoptions

In _In re W. (A Minor) (Adoption: Homosexual Adopter)_, decided
Feb. 25-26, 1997, and reported in _The Weekly Law Reports_ on
October 24, 1997, a British Judge, J. Singer held, that the court
could entertain the application of a local authority to free a
child for adoption by a lesbian cohabitating in a homosexual
relationship.  In Britain, under Section 18 of the Adoption Act
1976, an application for an order to free a child for adoption is
permissible even if the natural parents do not consent, however, to
make such an order, the Judge must find that it is right to
dispense with each parent's agreement to promote the child's
welfare.

In this case, a child, called "J" by the court, was removed from
her home because of neglect in November of 1991, went through
numerous placements and finally in July of 1995 was placed with a
lesbian foster parent who was living for the past ten years with
her female partner, who has one adult child of her own.  Both women
were settled and professionally successful in their careers.  The
child thrived while living with them.  The local Agency that placed
J with the lesbian foster mother made the application to the court
to free the child for adoption even though the natural parents did
not consent. 

The court refused to accept the argument put forth by the natural
mother's representative that a freeing order with a view to an
adoption order in favor of a single woman living in a lesbian
relationship with another is not permitted.  In addition, the court
refused to accept the alternative argument that if such an order is
permissible under the Adoption Act, it should not be ordered
because it is against public policy.  The court recognized the
evidence of no reservations about adoption by individual
homosexuals, both male and female, by local agencies, and that the
public policy in recent years in Britain was less discriminatory
against gays and lesbians.  

The court reasoned: "I have formed the firm conclusion not only
that the Adoption Act 1976 cannot be construed in so restricted and
discriminatory a fashion as is proposed" (the argument proposed by
the natural mother's representative that public policy excludes
lesbians and gays from adopting), "but also that public policy
considerations should not fall within the province of judges to
define within this sphere.  If there is to be a line drawn as a
matter of policy to prevent homosexual cohabitating couples or
single person with homosexual orientation applying to adopt, then
it is for Parliament so to conclude and with clarity to enact." 
Moreover, the court stated: "...in reaching any decision relating
to the adoption of a child, the court shall have regard to all the
circumstances, first consideration being given to the need to
safeguard and promote the welfare of the child throughout his
childhood."  [This is similar to the usual U.S. standard of best
interest of the child] "There can be no more fundamental principle
in adoption cases than that it is the duty of the court to
safeguard and promote the welfare of the child.  Issues relating to
the sexual orientation, lifestyle, race, religion or other
characteristics of the parties involved must of course be taken
into account as part of the circumstances.  But they cannot be
allowed to prevail over what is in the best interests of the child.
The suggestion that it is a fundamental objection to an adoption
that the proposed adopter is living with another in a homosexual
relationship finds no expression in the language of the statute,
and in my opinion it conflicts with the rule which is set out in
section 6 of the Act."  

Finally, the court stated: "Thus I conclude that the Adoption Act
1976 permits an adoption application to be made by a single
applicant, whether he or she at that time lives alone, or cohabits
in a heterosexual, homosexual or even an asexual relationship with
another person who it is proposed should fulfil a quasi-parental
role towards the child.  Any other conclusion would be both
illogical, arbitrary and inappropriately discriminatory in a
context where the court's duty is to give first consideration to
the need to safeguard and promote the welfare of the child
throughout his childhood."  _Leslie S. Deutsch_

Professional Notes

The homepage for the Massachusetts Lesbian and Gay Bar Association
can be accessed at the following address: <http://www.mlgba.org>. 
The English Lesbian and Gay Lawyers Association, formed in 1994, is
now organizing its second conference.  Lawyers who wish to get in
touch with the Association can e-mail to <lagla@btinternet.com>.

During December, recently-reelected N.Y.C. Mayor Rudolph Giuliani
announced that Christopher Lynn, an openly-gay lawyer and long-time
LeGaL member who was serving as Commissioner of Transportation,
would be appointed a commissioner of the city's Tax Appeals
Tribunal, and that Antonio Pagan, an openly-gay lawyer who was
completing a term in the City Council, would serve as Commissioner
of Employment.  _N.Y. Times_, Dec. 31.  A.S.L.

AIDS & RELATED LEGAL NOTES

Hawaii Supreme Court Rules Against Insurer in HIV-Disability Claim
Dispute

In a unanimous ruling issued Dec. 18, the Hawaii Supreme Court held
that a disability insurance company was liable for benefits due
under a 1985 policy issued to an HIV+ dentist.  _Estate of John Doe
v. Paul Revere Insurance Group_, 1997 WL 778375.  The defendant had
claimed that because the dentist received medical treatment in 1983
for an AIDS-like condition, his claim for disability benefits under
the policy was deniable as a pre-existing condition.

Dr. Doe (a pseudonym) sought treatment in May 1983 for swollen
lymph glands, occasional diarrhea and fatigue.  At the time, his
doctor diagnosed amebiasis and Doe responded to treatment.  Tests
performed on Doe by his doctor showed a reduction in immune
function, but a hypersensitivity antigen test produced results then
considered incompatible with an AIDS diagnosis.  At the time, HIV
had not yet been identified and there was no "AIDS Test."

Doe was referred to an infectious disease specialist who noted
"potential AIDS" in his files; the specialist testified in this
litigation that this was a notation one would routinely make at
that time if presented with a patient who was a member of an AIDS
risk group and had exhibited this complex of symptoms.  However,
following his examination, the specialist noted "healthy dentist"
in Doe's file, and Doe did not see the specialist again until 1986. 
Also, Doe's primary physician, who examined him in July 1985,
concluded that earlier problems were resolved and that Doe "looked
well physically and had no complaints."

In October 1985, Doe applied to Paul Revere, the insurer, for
disability insurance.  He truthfully answered the medical
questionnaire and completed a release authorizing his doctors to
let the insurer examine his medical records.  Surprisingly, his
primary doctor's records show no request by Paul Revere to examine
them, even though they reflect that two other life insurance
companies had examined the records and apparently denied Doe's
applications for life insurance after these examinations.

In November, Doe went to an anonymous testing center and tested
HIV+.  In 1986 he returned to the specialist for treatment.  Doe
continued to practice dentistry until October, 1991, when, "because
of `mental anguish' over the possibility that he might `infect
patients or that they [might] discover [his] HIV infection,' Doe
sold his dentistry practice and applied for disability benefits
under the policy."  Paul Revere initially paid the benefits, but in
April 1992, after reviewing his file, decided that his disability
was due to a pre-existing condition (based on his 1983 treatment
for AIDS-like symptoms) and sent a letter demanding return of
benefits and also payment of premiums that had been waived when the
disability had continued more than 90 days.  The result was this
litigation.  Doe asserted that he was entitled to continued
coverage due to an incontestability clause included in his policy.

The trial court agreed with the insurer that Doe's disability was
due to a pre-existing condition as defined in the policy and thus
not subject to coverage.  Since the insurer was not claiming that
Doe had lied about anything on his application form, the trial
court found the incontestability clause inapplicable.  (This
particular incontestability clause basically said that the insurer
could not raise objections to coverage based on alleged
misrepresentations in the insurance application more than two years
after the policy was issued.

In an opinion reversing the trial court, Justice Levinson devoted
significant attention to the complex terms of the insurance policy,
which was notable for ambiguity and inconsistency.  Noting that
such insurance contracts are adhesion contracts that should be
construed liberally in favor of the insured, and noting as well the
policy judgment of the Hawaii legislature that disabilities
occurring more than three years after an insurance policy was sold
should be covered, Levinson concluded that Doe's estate is entitled
to full payment of benefits and the premium waiver provided under
the policy for long-term disabilities.  

The opinion is lengthy and closely-argued to a degree that cannot
be unraveled within our space limitations.  Toward the end of the
opinion, Levinson summarizes the court's holding as follows: "We
therefore hold [pursuant to pertinent Hawaii insurance law] that
the standard `incontestability clause' set forth in paragraph
10.2.b of the policy precludes Paul Revere from denying Doe's
estate the `Total Disability benefit' for which Does contracted. .
. notwithstanding that the HIV infection that caused the disability
arguably `manifested' itself prior to the policy's effective date
of coverage."  A.S.L.

HIV+ Doctor Defamed By Colleague

U.S. Senior District Judge Robert Merhige ruled Dec. 1 in _Tolman
v. Doe_, 1997 WL 760228 (E.D.Va.), that a doctor had defamed his
medical partner by publicizing the partner's AIDS condition to
patients and warning the patients to consider seeking a different
doctor.  However, Merhige denied summary judgment  on a claim by
the doctor for emotional distress damages.

Dr. David Tolman, a cardiologist, was diagnosed with AIDS in 1994. 
Tolman, a gay man, was "out" to family, friends and close
acquaintances, but not to his professional colleagues or patients;
he also kept his AIDS condition confidential.  However, in
September or October 1995, one of Tolman's colleagues, identified
in court papers as Dr. John Doe, learned that Tolman has AIDS.  In
May 1996, in a conversation with one of Tolman's patients, Doe
responded positively when the patient asked whether Tolman had
AIDS, and, responding to the patient's questions, Doe said that he
would not want a physician with AIDS treating him if he were a
patient.  

Later that year, Doe quit the practice and moved to another state. 
After leaving, he sent a letter to ten or fifteen patients, as
follows (spelling as quoted by the court):  "I would like to tell
you that I left the program for personal reasons and because my
personal career at [...] was not going anywhere, and also because
I could not work any more with Dr. Tolman, especially when I
learned that he had AIDS and continues to perform invasive
prosedures [sic] on the [cardiology] patients.  (Unfortunately, he
never told me anything about it himself, maybe because he did not
want me to know that he was homosexual.) I don't realy [sic] know
what to tell you regarding your heart transplant care after you
learn this fact.  Howevere [sic], I will leave this to your
personal judgment.  I personally will not want somebody with AIDS
to be my phisician [sic], let alone being my [cardiologist].  You
may want to think of an alternative that will beter [sic] serve
you."

Claiming that this letter cast aspersions on his professional
competence and integrity, Dr. Tolman filed suit against Doe for
defamation, violation of a state statute on "insulting words,"
tortious interference with contract, intentional infliction of
emotional distress,  and violation of Virginia's HIV
confidentiality statute.  In previous rulings, the court had
granted summary judgment in favor of the defendant on all but the
defamation and emotional distress claims.  In this opinion, Merhige
granted summary judgment as to liability in favor of Dr. Tolman on
the defamation claims, and summary judgment in favor of Dr. Doe on
the emotional distress claim.

Although Dr. Doe's statements about Tolman's homosexuality and AIDS
diagnosis were true and not themselves defamatory, Merhige found
that the letter contained false statements about Tolman's
professional competence.  Reviewing guidelines promulgated by the
Centers for Disease Control for dealing with HIV-infected health
care professionals, Merhige found that Dr. Tolman's practice did
not involve the kind of invasive procedures specified as presenting
a risk of HIV transmission by the CDC, and that Tolman was
following the prescribed infection control procedures in his
office; consequently, as far as the pertinent public health
guidelines are concerned, Dr. Tolman was fit to continue practicing
medicine.

"Although he admits he has no scientific evidence to support his
view," wrote Merhige, "Dr. Doe states that his `personal opinion'
is to disagree with the CDC.  Dr. Doe further admits he has `no
idea' of how much risk the patients experience from being treated
by Dr. Tolman and states that `no amount of science. . . could make
[him] change [his] mind."

Noting the Supreme Court's dictum in _School Board v. Arline_, 480
U.S. 273 (1987), that courts should defer to public health
authorities in cases requiring the exercise of medical judgments,
Merhige concluded that, as a matter of law, Tolman was fit to
practice, and it was incumbent on Doe, in defending the case, to
present scientific evidence to controvert the CDC guidelines, which
Doe had not done.  Having previously ruled that the defenses of 
privilege and protected opinions were not available to Doe in this
case, Merhige concluded that Doe's letter was actionable.

Doe had also objected that Tolman had not introduced evidence of
actual damages, but Merhige found this unavailing, pointing out
that under Virginia law, an imputation that somebody is unfit to
perform their job or lacking in integrity, or a statement that
prejudices somebody in their profession, is defamation per se, so
the issue of actual damages would have to await further action at
a trial.  Merhige granted Tolman's actions for summary judgment on
his defamation counts.

Turning to the emotional distress claim, Merhige found that
Virginia has set the bar very high in evaluating actions for
intentional infliction of emotional distress, requiring both
outrageous conduct by the defendant and severe emotional distress
by the plaintiff.  Neither of these were present here, in the
court's view.  According to Doe's suit papers, he was motivated by
his reaction to reading articles about Dr. David Acer, the
notorious Florida dentist believed to have transmitted HIV to six
of his patients; however faulty this motivation, the court was
evidently not willing to find it malicious.  Furthermore, Tolman's
evidence of emotional distress fell well below the level alleged in
other cases where the claim had been dismissed in Virginia. 
"Indeed," wrote Merhige, neither the parties nor the Court located
any Virginia Supreme Court cases that found conduct to be extreme
and outrageous as a matter of law.  Thus, the court denied Tolman's
summary judgment motion on the emotional distress claim. A.S.L.

Ignorance Is Bliss For Prison Officials; 4th Circuit Finds
Qualified Immunity Against Prisoner Suit on HIV Risks

Reversing the district court's denial of summary judgment on
qualified immunity grounds, the 4th Circuit Court of Appeals held
Dec. 18 that federal prison officials in North Carolina were
entitled to immunity from a claim by prisoners that their rights
were violated when they were not provided with protective equipment
and clothing to safeguard them from exposure to infectious diseases
while performing their duties as orderlies in the prison.  _Rish v.
Johnson_, 1997 WL 776553.  In so holding, the circuit court found
credible the argument that prison officials in 1992 would not have
known that prisoners who were cleaning up blood would need to take
universal precautions to prevent transmission of blood-borne
infectious agents.

The prisoners claimed that their duties included cleaning blood and
other bodily fluids from environmental surfaces, and that requiring
them to perform such work without the means to use universal
protection against blood exposure constituted "cruel and unusual
punishment" under the 8th Amendment.  U.S. District Judge W. Earl
Britt refused to enter judgment in favor of prison officials,
finding that there were disputed fact issues relevant to
determining whether the officials had displayed deliberate
indifference to the health and safety of the inmates.

In reversing in an opinion by Circuit Judge Wilkins, the court
emphasized that under the 8th Amendment government officials are
entitled to immunity from suit unless they are charged with
violating a clear legal mandate.  Wilkins contended that as of the
relevant dates for purposes of this litigation, there was no body
of federal caselaw specifying that prisoners engaged in cleaning up
blood are entitled to be supplied with the necessities for using
universal precautions against blood exposure.  Indeed, Wilkins
pointed out that CDC guidelines suggest that risk of transmission
for workers performing such tasks is merely "theoretical," since
the only significant risks would come from needlestick injuries or
being splashed with blood on an open body wound; Wilkins believed
that neither of these contingencies were likely under the
circumstances described in this case.

Circuit Judge Murnaghan wrote a dissenting opinion, contending that
the district judge was in a much better position than the appeals
court to determine whether material issues of fact had to be
decided for resolution of the legal issues in this case. Indeed, as
a key question was whether the prison officials in this case knew
or had reason to know of the dangers facing these prisoners,
Murnaghan turned to the record and found evidence that would tend
to support the district court's ruling.  A.S.L.

Montana Supreme Court Revives Negligence Claim Against Abortion
Clinic on HIV-Related Misinformation

In a decision issued Dec. 11, the Montana Supreme Court reversed a
trial court and revived a negligence claim against an abortion
clinic and one of its counsellors for providing misinformation
about HIV that allegedly led a woman unnecessarily to end her
pregnancy.  _Blackburn v. Blue Mountain Women's Clinic_, 1997 WL
784181.  

Blackburn underwent an abortion in January 1990 at the defendant
Clinic.  She had recently learned that the father of her future
child was HIV+.  She was tested but proved to be HIV-negative,
however the test counsellor told her that it was likely that her
child would be HIV+, and that both of them would die from AIDS. 
She repeated this misinformation to the clinic counsellor, who
advised her to have an abortion.  She also repeated this
information to the nurses and doctors, none of whom contradicted
it.  The abortion left her weakened and suffering from various
physical and emotional aftereffects.  It was not until 1995, when,
still suffering from depression about the abortion, she consulted
a lawyer and learned that she was given bad advice.  She filed
medical malpractice and negligence suits against the various actors
and institutions involved in her decision to have the abortion.

The court upheld the decision of the trial court dismissing the
malpractice claims, finding them barred by the relevant statute of
limitations.  However, the court found that the statute of
limitations for negligence, normally three years, included a
proviso applicable to this case concerning situations where the
information that would be the basis of the claim was concealed from
the plaintiff.  Here, the court found, the very essence of her
claim was that accurate information had been concealed from her,
thus it was equitable to toll the statute of limitations until she
learned the truth and realized she had a potential claim.  The
court pointed out that it would still be necessary for the
plaintiff to show at trial that she qualified for the application
of this proviso, however it held that the trial judge was wrong to
have dismissed her negligence claim against the clinic and the
abortion counsellor.

Three members of the court concurred in part but dissented from the
portion of the decision dismissing the malpractice claim, arguing
that the same sort of tolling should be applied to that claim as
well.  A.S.L.

Illinois Appellate Court Refuses to Dismiss Emotional Distress
Claim Against Estate of HIV+ Surgeon

In a unanimous decision released on Dec. 26, the Appellate Court of
Illinois, 1st Dist., held that a surgery patient who later learns
that her surgeon was HIV+ may sue for negligent infliction of
emotional distress (and the patient's spouse may sue for loss of
consortium), even though there is no allegation that the patient
actually contracted HIV as a result of the surgery.  _Doe v. Noe_,
1997 WL 789854.  However, the court held that the emotional
distress claim should be limited to a reasonable time between the
plaintiff having learned of her surgeon's HIV status and her
ascertaining that she was not HIV+ herself.

The surgeon, who had not disclosed his HIV status to his medical
partner or the hospital where he performed his surgeries, performed
two gynecological surgeries on the plaintiff early in 1993.  Early
in 1994, the plaintiff learned that the surgeon was HIV+, and
promptly filed suit alleging a full catalog of torts claims,
including battery, lack of informed consent, intentional and
negligent infliction of emotional distress, and conspiracy, and her
husband joined the suit in a loss of consortium claim.  The
plaintiffs alleged that the surgeon had a duty to disclose his HIV
status prior to obtaining consent for the surgery, and that this
disclosure duty extended to the surgeon's partner and the hospital,
who allegedly conspired to keep this information from the
plaintiff.

The trial court ultimately dismissed most of the claims, but
certified to the appellate court the question whether to allow the
negligent infliction of emotional distress and loss of consortium
claims to go to trial.

Writing for the appellate court, Judge Greiman answered in the
affirmative the two certified questions: whether a surgeon has a
duty to disclose his HIV+ status before performing an invasive
procedure, and whether a claim for negligent infliction of
emotional distress can be made even though the plaintiff has not
alleged actual transmission of HIV.

In so ruling, Greiman acknowledged that this decision conflicts
with some other Illinois rulings on AIDS-related emotional distress
claims in decisions by other panels of intermediate appellate
courts, but found most persuasive the Maryland Court of Appeals
decision in _Faya v. Almaraz_, 620 A.2d 327 (1993).  (The court
never mentions that the _Faya_ decision has proven controversial
among courts in other jurisdictions and may represent a minority
position on the basic issues.)  The ruling rests on the assertion
that even though the risk of transmission might be slight, the harm
if transmission occurs is so great that the overall risk associated
with an HIV+ surgeon performing invasive procedures is sufficient
to impose a duty of disclosure.  This, of course, is a recipe for
disqualifying HIV+ surgeons from practicing their profession due to
the likelihood that few patients will consent to their performing
surgery, even though there is no hard evidence that an HIV+ surgeon
in the United States has ever transmitted HIV to a patient while
performing invasive surgery.

In ruling on the other counts that had been dismissed by the trial
court, Judge Greiman agreed that actions for battery, lack of
informed consent for surgery, and conspiracy were properly
dismissed.  Greiman asserted that the surgeon's partner and the
hospital had no legal duty to know the surgeon's HIV status, and
that the duty of disclosure is personal to the HIV+ surgeon; the
court similarly upheld dismissal of the intentional infliction of
emotional distress claim.  Upholding dismissal of the negligence
claims against the partner and the hospital, the trial court had
relied on the Illinois AIDS Confidentiality Act, but the appellate
court rested its ruling on the lack of a disclosure duty on anyone
other than the surgeon.

In preserving the negligent infliction of emotional distress claim
for trial, Greiman stated: "We also observe that the derivative
claims for loss of consortium for John are particularly appropriate
here given the very real restriction on a marital relationship when
one party may have HIV."  A.S.L.

New Mexico Supreme Court Rules on Appeal by HIV+ Murderer

An HIV+ gay man convicted of murdering another gay man who he
picked up from a bar for s/m sex won a redetermination of
sentencing from the New Mexico Supreme Court in _State v. Cooper_,
1997 WL 736477 (Nov. 3).

According to his version of events, after Paul Cooper learned that
he was HIV+, he decided to leave civilization for the Utah canyons
in order to die with dignity rather than waste away in a hospital
bed.  After making his initial preparations, he went out to a gay
bar to "party a little bit" and ended up bringing home Gary Marquez
with the idea to have some sexplay including bondage.  

Each man drove his own car to Cooper's apartment.  Cooper claims
that he was not able to perform sexually due to his fear of
transmitting AIDS, and tried to get Marquez to leave, but that
Marquez became belligerent ("What, am I not good enough for you?")
and in the resulting fracas Cooper struck Marquez over the head
with a metal pipe and a barbell and then stabbed Marquez to death
with a skinning knife contained in Cooper's camping gear.  Cooper
had also wounded himself during the fight.
 
Cooper then fled using Marquez's car and ended up driving to
Malibu, seeking help from his sister, a nurse.  He checked into a
motel and phoned her, expressing suicidal thoughts and mentioning
that he'd killed somebody.  She tipped off the local police, who
learned there was a warrant out on Cooper due to a murder in New
Mexico.  The police sent a SWAT team to the motel, treating the
situation as a suicidal murder suspect.  The police talked Cooper
out of the motel without violence by engaging him in conversation
about his situation, and he turned into a regular blabber-mouth,
attempting to justify what he had done.  Not until he got back to
New Mexico did he sign a Miranda waiver.  

At trial, Cooper objected to introduction of the statements he made
to the SWAT team and at other times prior to his arrival in New
Mexico, but many of the statements were admitted in evidence.  The
prosecution's case was that Cooper had lured Marquez to his
apartment in order to steal his car and several hundred dollars
that Cooper knew Marquez possessed because he was cashing a
paycheck on the way from the bar.  The jury convicted Cooper of
numerous charges, and he was sentenced to life plus fifteen years. 

On the appeal, the court found that Cooper's statements were
voluntary, and were not elicited from him during custodial
questioning.  However, the court found that the jury may have been
confused by the charges, because it had convicted Cooper of
alternative charges that could not co-exist.  Consequently, the
case was remanded for consistent resentencing.  A.S.L.

California Appeal Court Orders Dismissal of Assault Charge Against
HIV+ Man, But Upholds Constitutionality of Sentencing Enhancement
Statute

An HIV+ man accused of assault with a deadly weapon through sexual
intercourse with a female minor got this charge dismissed through
a writ of mandate by the California Court of Appeal, 6th Dist., in
_Guevara v. Superior Court_, 1997 WL 789950 (Dec. 19).  Dennis
Guevara raised a variety of defenses focusing on issues of consent
which were unsuccessful.  But the court found that in the context
of "consensual" heterosexual intercourse, the risk of HIV
transmission was not high enough to justify a charge of assault
with a deadly weapon, usually denominated "aggravated assault."

The court found that "an HIV-positive individual who, knowing of
his or her HIV status, intentionally engaged in unprotected sex may
commit aggravated assault if his or her act is likely to cause
great bodily injury to his or her partner."  Guevara had stipulated
that he had engaged in "unprotected sex" with the victim, but
argued that this did not necessarily mean that he had exposed the
victim to his infected bodily fluids.  The court rejected this
argument, finding that the magistrate had a rational basis to
assume based on the stipulation that Guevara had exposed the victim
to his bodily fluids.  But the court did agree with the next step
of Guevara's argument concerning the likelihood that his conduct
would result in HIV transmission to the victim.

"Here, we believe that petitioner has a point," wrote Justice
Mihara for the court.  "There was no evidence before the magistrate
that a single incident of unprotected sex between an HIV-positive
male and an uninfected female was likely to result in transmission
of HIV antibodies [sic] to the female, and medical journal articles
based on extensive studies reflect that the risk of transmission
from a male to a female through unprotected vaginal intercourse is
fairly low.  Consequently, we do not believe that the magistrate
had a `rational' basis for `assuming the possibility' that
petitioner's act was `likely to produce great bodily injury." 
Consequently, the court agreed to issue a writ directing the
superior court to grant Guevara's motion as to the assault counts
in the indictment.

On the other hand, the court decisively rejected Guevara's argument
that Penal Code section 12022.85, which requires a sentence
enhancement for HIV+ persons who engage in unlawful intercourse, is
unconstitutional.  Guevara argued that the statute, in effect, made
it a crime to be HIV+, but the court was not buying this argument,
noting that, unlike the famous precedent of _Robinson v.
California_, 370 U.S. 660 (1962), in which the court struck down a
California drug statute which made it an offense to be an addict in
California, the statute under challenge required more than mere
status for a violation.  

The court also rejected Guevara's argument that the law violates
equal protection by singling out HIV+ individuals for worse
punishment than similarly situated persons with other infectious
conditions, such as hepatitis.  Justice Mihara stated that nobody
else can be similarly situated to a person with HIV, because: "To
our knowledge, Penal Code section 12022.85 deals with the only
incurable sexually transmitted diseases which inevitably lead to
death.  Polio, herpes, hepatitis and other communicable diseases
are either curable with treatment, not sexually transmitted or not
inevitably deadly.  [The statute] is aimed solely at enhancing the
punishment for a sex crime where the perpetrator has knowingly
exposed the victim to transmission of an inevitably deadly disease. 
No other communicable diseases pose this same threat to sex crime
victims.  Consequently, we do not believe that perpetrators of sex
crimes infected with other communicable diseases are sufficiently
similar to HIV-positive and AIDS-infected perpetrators to merit
further scrutiny on an equal protection claim."  The court then
committed that even if this was a strict scrutiny case, it would
find the statute valid due to the state's "compelling interest in
the safety of its citizenry."

The court also rejected a gender-based equal protection challenge
to the statute, which by its terms applies to intercourse solely
with underage females.  Harking back to early cases upholding the
constitutionality of sex crimes laws that focus on sex with
females, the court emphasized the state concern with unwanted
pregnancy, compounded in this case with the possibility of HIV-
transmission in utero to an infant.  A.S.L.

Louisiana Appeals Court Rejects Attempt to Bypass Blood Shield Law

In a Dec. 10 decision, the Louisiana Court of Appeal for the 5th
Circuit rejected an attempt by plaintiffs in an HIV-transfusion
case to avoid the effect of the state's "blood shield law" in a
products liability claim.  _Douglass v. Alton Ochsner Medical
Foundation_, 1997 WL 757683.  The case arose from a 1983
transfusion in the course of heart surgery; the patient, a child,
recovered from the surgery but subsequently tested positive for HIV
in 1993.  Her father brought suit on a variety of theories against
the medical center, the surgeon, the doctor who made the referral
to the surgeon, and the American Association of Blood Banks.

This decision concerns the trial court's grant of summary judgment
to the medical center on the plaintiffs' claims of strict liability
and breach of implied warranty of merchantability.  Louisiana, in
common with most other states, has a statute (the so-called blood
shield law) limiting product liability suits based on blood
transfusions or the use of blood products.  The pertinent part of
the statute in effect at the time of the 1983 surgery stated:
"Strict liability or liability of any kind without negligence shall
not be applicable to physicians ... hospitals, hospital blood banks
... in the screening, processing, transfusion, or medical use of
human blood and blood components of any kind ... which results in
the transmission of viral diseases ... undetectable by appropriate
medical and scientific laboratory tests."  LSA-R.S. 9:2797.  

In moving for summary judgment, the defendants argued that at the
time the transfusion occurred, the discover of HIV was a year in
the future and the licensing of the first HIV screening test for
blood, the ELISA test, was two years in the future.  Consequently,
they argued, at that time HIV was "undetectable by appropriate
medical and scientific laboratory tests."  Opposing the motion,
plaintiffs introduced affidavits by two prominent public health
doctors arguing that in 1983 a medical center could have
significantly reduced the risk of HIV transmission by testing
donated blood for Hepatitis B core antigen; a positive result on
such a test would identify about 80 percent of the donors "at risk"
for HIV.  The trial court decided that a test to identify "at risk"
donors was not the same as a test for the presence of the virus,
and thus that the statute applied to bar the claim.

Agreeing with the trial court, Judge Daley noted that the term
"undetectable" is not defined in the statute.  The lack of a
statutory definition led the plaintiffs to argue that this created
an ambiguity sufficient to require a trial of the claim.  Rejecting
that argument, Daley cited the Louisiana Civil Code Art. 11, which
provides: "The words of the law must be given their generally
prevailing meaning," and concluded that the generally prevailing
meaning of "undetectable" is "to be not able to discover or
determine the existence of..."  Since the tests available in 1983
could do no more than "predict" individuals who were at risk for
AIDS, the statute by its terms applied to bar the claim: "LSA-R.S.
9:2797 provides that a hospital will not be strictly liable for
blood transfusions that result in the transmission of diseases
which are undetectable by appropriate tests.  The statute makes no
mention of tests that could have possibly predicted the presence of
a disease.  Therefore, since the surrogate tests suggested by the
plaintiffs would have possible predicted the presence of HIV and
would not have detected HIV, there can be no strict liability
against Ochsner for their failure to use these tests."

An additional factor cited by the court was the lack of evidence in
the record that hospitals and blood banks were using surrogate
tests to exclude blood from persons "at risk" for AIDS in January
1983 when the transfusion in this case took place.  This comment by
the court leaves open the possibility that claims might be made
based on later transfusions, since some blood banks did begin
surrogate testing later in 1983 and there is evidence, which has
been introduced in litigation charging the American Association of
Blood Banks with negligence in its 1983-84 activities concerning
AIDS, showing that those blood banks that used the surrogate tests
evidently succeeded in reducing the risk of HIV transmission to
their customers to a negligible level.  A.S.L.

Federal Court in Louisiana Dismisses ADA Claim by HIV+ Worker

A federal district court recently dismissed the claim of an HIV+
person claiming wrongful employment termination under the Americans
with Disabilities Act (ADA). _Reichle v. Walsh Offshore, Inc._,
1997 WL 728104 (E.D.La., Nov. 20).  In a brief opinion, District
Judge Livaudais stated that the plaintiff had not established a
prima facie case.

Plaintiff Nolan Reichle alleged that he had been infected with HIV
from at least 1996, and that he had been employed by the defendant,
Walsh Offshore, Inc., from August 1993 through July 1996.  He
generally worked on seven-day-on/seven-day-off shifts on an
offshore oil rig, and when he became ill with a fever and digestive
disorder, his roommate called his supervisor to advise him that
Reichle was ill.  This call was six days prior to Reichle's
scheduled return to work.  When the roommate called two days later
to advise that Reichle was still sick and might not return on time,
the supervisor insisted that he return on schedule.  The roommate
then disclosed to the supervisor that Reichle was HIV+, a fact the
supervisor had not previously known.  When Reichle recovered two
days later and phoned his supervisor to state that he could return
to work, the supervisor advised him that he had been terminated for
failure to call in to report his absence.

Reichle filed a claim under the ADA.  Walsh Offshore argued that
the ADA requires a defendant to be disabled in order to prevail,
and plaintiff's complaint had not stated that he is disabled.  The
ADA provides that "no covered entity shall discriminate against a
qualified individual with a disability," and one of the
requirements of a prima facie claim of discrimination is that the
individual suffers from a disability.  Further, in order to be a
"qualified individual with a disability," the plaintiff has the
burden of showing that he has a "physical or mental impairment that
substantially limits one or more of the major life activities of
the individual."  The court viewed "substantially limits" to mean
that "the individual is unable to perform a major life activity
that the average person in the general population can perform."

The court then noted that the complaint did not allege that the
plaintiff is impaired or that he is substantially limited in any
major life activity, but rather simply that he is HIV+.  The court
deferred to the Fourth Circuit, which recently held in _Runnebaum_
that asymptomatic HIV infection is not, as a matter of law, a
physical or mental impairment under the ADA, and even if it was, it
did not limit any major life activities, as required by the
statute.  Thus, the court found that Reichle had not stated a claim
under the ADA and dismissed his complaint.  It is worth noting that
Reichle's attorney had withdrawn his representation and Reichle,
proceeding pro se, had not filed opposition to the motion to
dismiss.  _Paul Twarog_

Positive HIV Test Justifies Enhanced Sentencing in Rape of Child

The Court of Criminal Appeals of Tennessee at Nashville, in
_Tennessee v. Pipkin_, 1997 WL 749430 (Dec. 4), held that proof
that a defendant tests positive for HIV is a proper enhancement
factor which may be considered in imposing consecutive rather than
concurrent sentences, even though the defendant did not know he was
HIV+ at the time of the underlying acts.

Winford Lee Pipkin drove up to a 12-year-old boy walking home from
a neighborhood store and asked him if a wanted to earn some money
helping Pipkin move furniture. When the boy called to his brother
walking ahead, Pipkin said he only needed one helper. Pipkin had a
cloth over his hand and when he told the boy to get into the
vehicle, the boy, afraid not to comply, obeyed. Pipkin drove around
the county for a considerable period and then took the boy to his
apartment, where, holding a knife to the boy's head, he raped the
boy orally and anally repeatedly.  Afterwards, he ordered the boy
to take a shower, implying that he might kill the boy so that he
would not tell about the rapes. To save his life, the boy made up
a convincing story that his cousin had already sexually abused him.
The next morning, Pipkin drove the boy to a location near the home
of the boy's grandmother and let him out. Members of the boy's
family, police officers and others had searched all night for the
boy. After he was found, the boy was taken to a hospital where he
was examined and found to have suffered physical and mental
injuries. Formerly an honor student, the boy failed the school term
following the rapes and became violent, fighting with other
children and using chairs as weapons. He became afraid of strangers
and leery of everyone, and suffered thereafter from the possibility
that HIV was transmitted to him during the rapes. Pipkin was
convicted of one count of aggravated kidnapping and five counts of
rape of a child following a jury trial.

Pipkin was not tested for HIV until the day prior to sentencing and
was found positive. There was no proof he knew he was HIV-infected
at the time of the offense.

Convicted more than twice previously of rape of a child under
aggravating circumstances, Pipkin did not contest that his criminal
record was extensive. The trial court ordered all counts but 2 to
be served concurrently, the 2 to be served consecutively, for a
total effective sentence of 105 years.

Writing for the court, Judge Thomas T. Woodall recited that under
Tenn. Code Ann. Sec. 39-13-521(d)(1) a defendant's positive test
for HIV is a permissible enhancement factor supporting consecutive
sentencing. With little discussion on that issue, Woodall rejected
Pipkin's argument that he did not know he was HIV+ at the time the
offenses were committed, holding that that fact does not preclude
consideration of Pipkin's HIV+ condition for purposes of
consecutive sentencing. Woodall noted the trial court found the
whole criminal episode to involve risk for physical injury and, in
imposing sentence, relied upon the potential for HIV transmission
and the nature of the activity underlying the offense. Woodall
found that the proof of Pipkin's guilt was overwhelming and
concluded that Pipkin's other objections were without merit. 
_Arthur J. Levy_

Ohio Appeals Court Vacates Sentence of HIV+ Sexual Offender

The Court of Appeals of Ohio in Clermont County vacated the 18-
month prison sentence of Ronald L. Hammons because of errors raised
sua sponte by the appeals court while rejecting all of Hammons's
grounds for appeal in _State v. Hammons_, 1997 WL 779085 (Dec. 15). 
Hammons, an HIV+ 38-year-old man, was convicted of rape, kidnapping
and "corrupting a minor" as a result of an incident in which he
"picked up" a 13-year-old runaway boy in a parking lot, drove him
to Hammons' home, and "then permitted [him] to perform fellatio on
[Hammons] without revealing that he had HIV."  The trial court
sentenced Hammons to 18 months in prison, "the maximum term
authorized for a fourth degree felony," according to the appeals
decision by Judge Walsh.

The appeals court rejected all of Hammons' arguments as to why his
conviction should be rejected and why the sentence was excessive,
finding that the record supported the trial court's determination
that this was a serious offense and that possibly prejudicial
remarks during the sentencing hearing by the victim's grandmother
and the prosecutor did not amount to reversible error.  There was
no specific discussion by the appeals court of Hammons' HIV-status,
although the opinion mentions that the prosecutor made something of
it during the sentencing hearing.  The court held, however, that
resentencing was necessary, pointing out that the trial court
neglected to fulfill its duty of providing an explanation for its
decision to impose the maximum sentence.  Furthermore, as the
offense took place prior to the passage of Ohio's version of
Megan's Law, concerning notification requirements imposed on
"habitual sex offenders," the court found that the trial court
should not have made a determination under that statute because it
would not apply to this case.  A.S.L.

N.J. Court Rejects Challenge to Extended Time for Hemophiliacs to
Sue

During the early 1980s more than half of the people with hemophilia
in the U.S. were infected with HIV by contaminated blood products. 
In 1996, the New Jersey legislature retroactively extended the time
for hemophiliacs and their representatives to commence civil tort
actions against the manufacturers of these tainted blood products.
The statute was challenged by Armour Pharmaceutical Co., a
defendant in one such case.  Judge Wolfson of the Superior Court of
New Jersey, who presides over all the 90 hemophilia-HIV/AIDS cases
now pending in New Jersey, recently concluded that the statute
violated neither the state nor federal constitution.  _D.J.L. v.
Armour Pharmaceutical Co._, 1997 WL 741341 (Sept. 29).

The court ruled that the law was a proper exercise of the state's
broad police powers.  The legislature had the authority to extend
the limitations period, even retroactively to revive already
time-barred claims, because statutory defenses generally are not
"vested rights" entitled to special protection.  Equitable
considerations can override this principle, but the court concluded
that in cases like this where there had been no final adjudication
of the plaintiff's claims, the challenged law did not result in any
manifest injustice to the defendant.  Indeed, Judge Wolfson held
that any impairment of Armour's property rights was outweighed by
the public interest in holding accountable those whose profit
motives and conduct result in isolated or widespread injuries. 

Armour also argued that the statute violated the equal protection
clause of the federal and state constitutions.  Armour contended
that it was arbitrary and irrational for the state legislature to
extend the statute of limitations for plaintiffs with HIV/AIDS
only, for those who acquired HIV/AIDS through the infusion of a
blood product only, and against proprietary manufacturers of blood
products only (excluding non-profit companies like the Red Cross,
hospitals and others).  The court disagreed, finding that the law
survived rational-basis scrutiny under federal equal protection
analysis, and the requisite New Jersey equal protection balancing
test.  The legislative history emphasized that many hemophiliacs
had failed to commence timely lawsuits either because they did not
know they had HIV/AIDS, or because they were afraid of the unique
publicity or stigma that would accompany their admission of HIV
infection.  Also, it was not known until recently that
manufacturers could have done more to prevent the spread of
HIV/AIDS sooner than they did.  The court approved the nexus
between challenged legislation and the interests it addressed.
 
New York also recently legislatively extended the statute of
limitations period for hemophiliacs with HIV/AIDS.  Lawsuits
against proprietary  manufacturers of blood products may now be
commenced until December 1, 1999.  In an executive memorandum
approving the legislation, New York Governor George Pataki
cautioned against reviving time-barred claims except in
"exceptional and compelling" cases.  For reasons similar to those
expressed in the New Jersey legislation, Pataki felt that this
measure was necessary in the instance of hemophiliacs with
HIV/AIDS. _Ian Chesir-Teran_

N.Y. Federal Court Rejects Challenge to Prison Conditions for HIV+
Inmates

In a decision that will not be officially published, U.S. District
Judge Martin (S.D.N.Y.) rejected a  1983 claim against various New
York State prison administrators by a group of female HIV+ inmates. 
_Nolley v. Lord_, 1997 WL 698172.  The prisoners claimed that their
8th Amendment rights were violated by conditions in the prisons,
including uncleanliness and lack of adequate medical care.  In his
opinion, Judge Martin describes in detail the factual allegations
of each of the prisoners, showing that each had been obtaining
medical care and that their complaints about conditions were being
addressed by prison authorities.  Under the circumstances, Martin
found that no constitutional claim had been stated, since the
standard under the 8th Amendment is "deliberate indifference" by
prison authorities to the health and safety of prisoners.  Among
other things, Martin noted that differences of opinion between
prison medical personnel and prisoners about the appropriate
treatment can not be the basis for a constitutional "cruel and
unusual punishment" claim.  A.S.L.

Hemophilia Plaintiffs Lose Gamble in St. Louis Jury Verdict

Having opted out of an industry settlement that would have provided
each plaintiff with $100,000, three hemophiliacs from the St. Louis
area lost their lawsuit charging Alpha Therapeutics Corp., a
manufacturer of blood-clotting medication, with negligence
resulting in the plaintiffs' HIV-infection.  Each of the plaintiffs
was apparently infected around 1982, at a time when HIV had not yet
been discovered and there was disagreement between the Centers for
Disease Control and the blood products industry about whether AIDS
was a transmissible condition.  In his summation, Alpha's attorney,
Phil Beck of Chicago, argued that Alpha had done the best that it
could with the information available at that time, pointing out
that all three plaintiffs were probably infected before research
showed that heat-treating the blood clotting product would render
it harmless.  _Doe v. Alpha Therapeutics_, St. Louis Cir. Ct., Dec.
17; _St. Louis Post-Dispatch_, Dec. 18.  A.S.L.

$12.2 Million Award Against Medical School in Needlestick Case

A jury in New Haven, Connecticut, awarded $12.2 million to a doctor
who infected herself with HIV as a result of a needlestick injury
while caring for a patient during her internship at Yale-New Haven
Hospital nine years ago.  The plaintiff claimed that Yale
University was negligent in having her perform the procedure in
question without adequate training or supervision.  Because interns
are considered students rather than employees, the suit against
Yale was not barred by the state's workers compensation law.  

The 6-person jury determined that the "Jane Doe" plaintiff suffered
injuries in excess of $15 million, but reduced the award under
comparative fault principles.  Late in November,  Judge Silbert had
issued several decisions ruling on pretrial motions in the case:
_Doe v. Yale University_, 1997 WL 766835 (Conn.Super., Nov. 26)
(resolving standing and limitations issues concerning the
defendants); 1997 WL 766845 (Conn.Super., Nov. 28) (denying
defendant's motion for summary judgment, and concluding that the
complaint sounds in negligence, not medical malpractice by
defendant University); 1997 WL 766848 (Conn.Super., Nov. 28)
(granting plaintiff's motion to strike University's defense based
on workers compensation law). A.S.L.

NY Trial Court Says Ordinary Limitations Period Applies in Tort
Suit on HIV-Test Mistake

N.Y. State Supreme Court Justice Peter Rosato ruled Oct. 23 in
_Playford v. Phelps Memorial Hospital Center_, 1997 WL 738518
(Westchester County), that the statute of limitations rules for
ordinary negligence cases applied to a claim that the defendant
hospital wrongly gave incorrect HIV-test results to the plaintiff
in 1992.  

Heidi Playford gave birth to a son in 1990.  Her blood was drawn
and blood tests were performed as part of "routine prenatal
screening" at the hospital on October 15, 1992, and about a month
later the hospital informed Playford that she was HIV-negative. 
Playford gave birth to a second son in 1994.  In December 1995, she
learned that her son was HIV+ and, having herself and her older son
tested, learned that they were both positive as well, leading to
the logical conclusion that she had been HIV+ at the time of her
earlier pregnancy and that the test results reported to her in 1992
were erroneous.  Playford sued the hospital for negligence within
a year after learning that she was HIV+.

Moving to dismiss the suit, the hospital argued that this was a
malpractice claim.  Under N.Y. law, the statute of limitations for
malpractice begins running "from the date the last act of
malpractice was performed, rather than from the date the resulting
injury was discovered," according to Justice Rosato.  But Playford
argued that she was not suing for malpractice but rather for
negligence by the hospital in mixing up her test result with
somebody else's test result.  Rosato notes that in a prior case,
_McKinney v. Bellevue Hospital_, 183 App.Div.2d 563 (1st Dept.
1992), the court had held that the failure to inform a prospective
employee that his physical exam had detected a serious medical
condition sounded in negligence, rather than medical malpractice. 
Rosato found this case to be analogous, commenting: "[M]istakenly
mixing up someone else's test results must be deemed an act of
ordinary negligence, ministerial in nature, well within the
experience of the fact finder.  As such, the restrictive approach
governing the statute of limitations in medical malpractice cases
simply does not apply.  Moreover, those cases involving a
misdiagnosis, a form of medical malpractice, are also readily
distinguishable."

Since the ordinary negligence rules apply, the statute of
limitations begins to run from the date when plaintiff discovered
she was HIV+.  Further, Rosato noted that even if he was wrong on
this, the burden was on the defendant to show at trial that the
injury occurred more than three years before the suit was filed,
and this showing awaited a trial of the facts.  Since the action
was brought within a year of Playford learning of her HIV+ status,,
the court found that it was timely and denied the motion.  A.S.L.

When Is a Communicable Disease Not a "Communicable Disease"?

Jose Plaza sued the estate of a former lover for transmission of
HIV to him; Plaza ultimately settled the lawsuit with the estate,
and the estate assigned to him the right to collect on the deceased
lover's homeowner's policy.  

The insurance company denied the claim, however, pointing to the
policy's exclusion of coverage for bodily injury arising out of the
transmission of a "communicable disease" by an insured.  Gotcha!
exclaimed Plaza: Under New York's Public Health Law, AIDS, HIV
infection and HIV disease have been excluded from the list of
"communicable diseases" by the Health Commissioner, an action
upheld by the New York Court of Appeals in _N.Y. Society of
Surgeons v. Axelrod_, 572 N.E.2d 605, 569 N.Y.S.2d 922 (1991);
thus, the policy exclusion does not apply.  

Not so, ruled a unanimous panel of the N.Y. Appellate Division, 1st
Department, in _Plaza v. General Assurance Co._, 1997 WL 728661
(Nov. 20), affirming a grant of summary judgment to the insurance
company.  Wrote the court _per curiam_: "The policy reasons for
excluding AIDS and HIV from the lists of communicable and sexually
transmissible diseases were fully discussed in the _Society of
Surgeons_ case, and it is clear that those reasons have nothing to
do with the average person's common-sense understanding of the term
`communicable disease.'  While it is true that the term
`communicable disease' could include a communicable disease that is
not transmitted by sexual contact, and, in fact, includes any
disease that is communicable, that alone does not render the
exclusion unduly broad, invalid or inapplicable herein."

Thus, leaving HIV off the public health list (because to include it
would result in an extraordinary range of untoward things, like
excluding HIV+ children from school and HIV+ food service workers
from their employment) does not affect the interpretation of the
defendant's insurance policy exclusions.  A.S.L.

AIDS Law & Society Notes

The Presidential AIDS Advisory Council has sent a strongly worded
letter to President Clinton urging the administration to exercise
its discretion to initiate needle exchange programs in the fight
against HIV transmission.  The Council noted that under existing
law the Secretary of Health and Human Services has until April 1 to
get a program in place, and urges that the necessary determinations
be made by January 27, 1998.

Cost benefit analysis defeats human compassion: The Clinton
Administration had planned to extend Medicaid eligibility for HIV-
related treatment to people who have not yet been diagnosed with
full-blown AIDS, on the theory that preventing them from developing
full-blown AIDS by giving them access to new therapies would make
more sense than requiring them to progress to full-blown AIDS in
order to achieve the disability status required for accessing
Medicaid.  In an early-December turnaround, the Administration
backed away from the plan, pointing out that a study had shown that
the increased cost of medication would outweigh projected savings
from treatments for full-blown AIDS.  We trust that a similar cost-
benefit analysis will be done the next time a senior-level Clinton
Administration official has the stray thought of accessing
preventive health care...  _Wall Street Journal_, Dec. 8.

Medicaid "Reform" measures recently enacted and now going into
effect may deprive hundreds of U.S. residents with AIDS who are not
U.S. citizens of their coverage for treatment.  In its zeal to
ensure that federal benefits not go to non-citizens, Congress swept
into its budget-cutting web individuals who are essentially barred
from applying for citizenship, even though they would be otherwise
qualified, due to their HIV status.  Under former rules, many of
these people were able to get waivers and temporary status in the
U.S. and to continue receiving benefits.  Now many face the choice
of going underground as illegal residents without health benefits
or returning to their countries of origin, where they face
stigmatization and, in many cases, no access to current medications
of choice for AIDS treatment.  _N.Y. Times_, Dec. 29.

Wisconsin Governor Tommy Thompson has approved a new law that will
allow physicians indirectly to disclose the HIV+ status of their
patients to sexual or drug partners without violating state
confidentiality requirements.  Physicians are supposed to alert the
state Division of Health's partner notification program to patients
who are known to have had sexual contact or shared drug needles
with an HIV+ patient, and the Division will then notify the
individual that they have been exposed to HIV.  _Wisconsin State
Journal_, Dec. 20.

Pot panic triumphs!  Despite a referendum showing that a majority
of Californians support the right of patients to access marijuana
for medical use, the California Court of Appeal ruled Dec. 12 in
_People ex rel. Lungren v. Peron_, 1997 WL 775828, that the state
can shut down operations such as the Cannabis Buyers' Club in San
Francisco which have been supplying marijuana for medical use.  The
court held that the pot clubs could not qualify as "primary
caregivers" under the new state law; only primary caregivers can
supply pot to individuals for medical use.  

A Yamhill County, Oregon, jury has convicted Andrew Lee Boyer, an
HIV+ man, of attempted aggravated murder for "forcing a 12-year-old
boy and a mentally handicapped man to have sex with him, even
though he knew he was infected with the AIDS virus," according to
a Dec. 11 report in the _Portland Oregonian_.  Boyer is the third
person to be convicted of similar charges in Oregon.  Boyer was
also convicted of "sodomizing and fondling two other boys, who were
12 and 14 at the time."  Boyer's lawyer argued that he lacked the
requisite intent for the attempted murder charge, contending that
Boyer's motive was "sexual gratification, not the intent to cause
the death of another human being."  None of Boyer's victims has
tested HIV+.  

A Wisconsin state prison guard is suing the state Department of
Corrections for negligence as a result of an incident where he was
bitten by a prisoner with AIDS.  Michael G. Brandt alleges that a
state probation agent "confessed" to Brandt that he should have
notified Brandt that the prisoner was HIV+ before Brandt attempted
to restrain him in the incident that led to the biting.  Brandt has
not tested HIV+.  He alleges that he and his wife have been unable
to "engage in marital relations" since the June 1996 incident, due
to fear that he might be infected and might transmit the infection
to her.  _Milwaukee Journal Sentinel_, Dec. 10.  

The Denver City Council voted 8-3 in favor of setting up a needle
exchange program, but the program will not go into effect until the
city receives permission from state officials.  _Rocky Mountain
News_, Dec. 10.  

A Florida jury awarded $405,000 in damages to Roger Kwiatek, an
HIV+ man who claimed he was improperly reprimanded for using sick
time for HIV-related treatment.  _Kwiatek v. AT&T Wireless_. 
Kwiatek claimed that the employer engaged in petty harassment,
trying to build up a case to fire him, but ultimately he took long-
term disability status in 1995 when he became too weak to work. 
The jury award broke down as $180,000 for past and future
psychological counseling and los wages, $125,000 for pain and
suffering, and $1 million in punitive damages, statutorily capped
at $100,000.  _Orlando Sentinel_, Dec. 13. 

Lambda Legal Defense & Education Fund announced a settlement on
Dec. 12 of _Doe v. Chubb Sovereign Insurance Co._, No. C-96-1458-
VRW (U.S. Dist. Ct., N.D. Cal.), in which Lambda was representing
a woman who was denied life insurance because her husband is HIV+. 
As part of the settlement, Chubb agreed to release of a statement
indicating that under the Americans With Disabilities Act,
"applicants for life insurance should not be denied an insurance
policy because of their association with a disabled person,
including someone who is HIV-positive."  The plaintiffs are
represented by the West Coast office of Lambda and cooperating
attorneys at the Legal Strategy Group, a San Francisco Bay Area law
firm.  A.S.L.

PUBLICATIONS NOTED

LESBIAN & GAY & RELATED LEGAL ISSUES:

Arriola, Elvia R., _Law and the Family of Choice and Need_, 35 U.
Louisville J. Fam. L. 691 (1996-97).

Backer, Larry Cata, _Narrative and Jurisprudence in State Courts:
The Example of Constitutional Challenges to Sex Conduct
Regulation_, 60 Albany L. Rev. 1633 (1997).

Baker, C. Edwin, _Harm, Liberty, and Free Speech_, 70 S. Cal. L.
Rev. 979 (May 1997).

Bayer, Ronald, _Tom Stoddard, Public Health, and Civil Liberties:
A Remembrance_, 72 NYU L. Rev. 1034 (Nov. 1997). 

Buckmire, Ron, _You Can't Get There From Here: The Impact of
California's Proposition 209 on Same-Sex Marriage_, 60 Albany L.
Rev. 1673 (1997).

Chapman, Anna, _Legislative Note: Federal Industrial Relations Law
and Sexuality_, 7 Australasian G. & Les. L. J.  57 (1997).

Dorsen, Norman, _Tom Stoddard: Civil Libertarian_, 72 NYU L. Rev.
1023 (Nov. 1997).

Fajer, Marc A., _Toward Respectful Representation: Some Thoughts on
Selling Same-Sex Marriage_, 15 Yale L. & Policy Rev. 599 (1997)
(book review of Eskridge, _The Case for Same-Sex Marriage_).

Feldblum, Chai R., _The Moral Rhetoric of Legislation_, 72 NYU L.
Rev. 992 (Nov. 1997) (response to Stoddard, see below).

Garkawe, Sam, _Book Reviews: International Human Rights and the Law
Regarding Sexual Orientation_, 7 Australasian G. & Les. L. J. 69
(1997).

Gayford, J.J., _Disorders of Sexual Preference, or Paraphilias: A
Review of the Literature_, 37 Med. Sci. & L. (U.K.) 303 (Oct.
1997).

Gey, Steven G., _What if_ Wisconsin v. Mitchell_ Had Involved
Martin Luther King, Jr.? The Constitutional Flaws of Hate Crime
Enhancement Statutes_, 65 Geo. Wash. L. Rev. 1014 (August 1997).

Hare, Ivan, _Legislating Against Hate -- The Legal Response to Bias
Crimes_, 17 Oxford J. Leg. Stud. 415 (Autumn 1997).

Hirczy de Mino, Wolfgang P., _Does an Equal Rights Amendment Make
a Difference?_, 60 Albany L. Rev. 1581 (1997).

Hirczy de Mino, Wolfgang P., and Angelle M. Kergosien, _Of
Elephants, Donkeys, and Black Sheep in Their Midst: State Action
Doctrine Thwarts Log Cabin Republicans' Bid to Gain a Place in
GOP's Tent_, 60 Albany L. Rev. 1695 (1997).

Hunter, Nan D., _Lawyering for Social Justice_, 72 NYU L. Rev. 1009
(Nov. 1997) (response to Stoddard, see below).

Jackson, Joseph S., _Sauce for the Goose: Some Thoughts on Gay Sex
and Equal Protection_, 48 Fla. L. Rev. 473 (July 1996).

Leonard, Arthur S. (editor), _Homosexuality and the Constitution_
(4 vols., Garland Publishing, 1997) (anthology of cases and
significant law review articles, with introductory material by the
editor).

Lenz, Timothy O., _"Rights Talk" About Privacy in State Courts_, 60
Albany L. Rev. 1613 (1997).

Major, April Mara, _Internet Red Light Districts: A Domain Name
Proposal for Regulatory Zoning of Obscene Content_, 16 John
Marshall J. Comp. & Inf. L. 21 (Fall 1997).

Marcossen, Samuel A., _The Lesson of the Same-Sex Marriage Trial:
The Importance of Pushing Opponents of Lesbian and Gay Rights to
Their "Second Line of Defense"_, 35 U. Louisville J. Fam. L. 721
(1996-97).

Mason, Gail, _Boundaries of Sexuality: Lesbian Experience and
Feminist Discourse on Violence Against Women_, 7 Australasian G. &
Les. L. J. 41 (1997).

Mazur, Diane H., _The Beginning of the End for Women in the
Military_, 48 Fla. L. Rev. 461 (July 1996).

McHugh, James T., _Interpreting the "Sexual Contract" in
Pennsylvania: The Motivations and Legacy of_ Commonwealth of
Pennsylvania v. Robert A. Berkowitz, 60 Albany L. Rev. 1677 (1997).

Murphy, Robert, _The Personal Is the Pedagogical: A Very Brief Life
of Professor Stoddard_, 72 NYU L. Rev. 1027 (Nov. 1997). 

Sharpe, Andrew Neville, _The Transsexual and Marriage: Law's
Contradictory Desires_, 7 Australasian G. & Les. L. J. 1 (1997).

Stoddard, Thomas B., _Bleeding Heart: Reflections on Using the Law
to Make Social Change_, 72 NYU L. Rev. 967 (Nov. 1997).

Stuhmcke, Anita, _Lesbian Access to In Vitro Fertilisation_, 7
Australasian G. & Les. L. J. 15 (1997).

Walen, Alec, _The "Defense of Marriage Act" and Authoritarian
Morality_, 5 Wm. & Mary Bill of Rts. J. 619 (Summer 1997) (essay).

West, Donald, and Richard Green (editors), _Sociolegal Control of
Homosexuality: A Multinational Comparison_ (N.Y.: Plenum Publishing
Co., 1997).

_Student Notes & Comments:_

Bainham, Andrew, _Sex, Gender and Fatherhood: Does Biology Really
Matter?_, 56 Cambridge L.J. 512 (Nov. 1997) (transsexuals and
family law).

Bamforth, Nicholas, _Sexual Privacy and the European Convention on
Human Rights_, 56 Cambridge L.J. 480 (Nov. 1997).

Boswell, Rebecca E., _Sexual Harassment - Same-Sex Sexual
Harassment and Title VII_, 20 Am. J. Trial Advoc. 663 (Spring
1997).

Mandell, Michael, _Same Sex Marriages: Arizona Reacts to a
Perceived Threat to Traditional Marriages_, 29 Ariz. St. L. J. 623
(Summer 1997).

Price, Joseph, Bottoms III_: Visitation Restrictions and Sexual
Orientation_, 5 Wm. & Mary Bill of Rts. J. 643 (Summer 1997).

Robb, Barbara A., _The Constitutionality of the Defense of Marriage
Act in the Wake of_ Romer v. Evans, 32 N. Eng. L. Rev. 263 (Fall
1997).

Rosenblum, Lauren J., _Equal Access or Free Speech: The
Constitutionality of Public Accommodations Laws_, 72 NYU L. Rev.
1243 (Nov. 1997).

Spackman, Paul L., Grant v. South-West Trains_: Equality for Same-
Sex Partners in the European Community_, 12 Am. U. J. Int'l. L. &
Pol. 1063 (1997).

Wiegel, David C., _Proposal for Domestic Partnership in the City of
Detroit: Challenges Under the Law_, 74 U. Det. Mercy L. Rev. 825
(Summer 1997).

_Specially Noted:_

The November 1997 issue of the New York University Law Review (vol.
72, no. 5) includes a memorial tribute to Thomas B. Stoddard, who
died from AIDS last year.  Stoddard, an alumnus of NYU Law School
and a member of its adjunct faculty for many years, had served as
Executive Director of Lambda Legal Defense & Education Fund, Inc.,
and as a leader of the Campaign for Military Service challenging
the ban on military service by openly lesbian and gay people.  The
memorial tribute includes Stoddard's last article, with responses
by two law professors, and three brief memorial essays.  All of
these articles are noted above.

_Specially Noted:_

In December, we reported on publication of a treatise on
sexual orientation law by Wiley Law Publications, based on a
promotional brochure.  We have since had an opportunity to examine
this two-volume set by Alba Conte, and we are moved to report that
we are very impressed by its broad scope and thoroughness.  Any
practitioner specializing in serving lesbian and gay clients would
undoubtedly benefit from having this book in her library, as it
summarizes statutory and case law to date in each state and
provides useful narrative text in all the basic subject areas that
a gay-specialized practice would encounter, with copious footnotes
and textual exposition of significant cases.  There is a full case
table and index.  We could see this publication rapidly becoming
the basic deskbook reference source on the topic, provided it
receives frequent updating of similar quality.  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. 
Alba Conte, _Sexual Orientation and Legal Rights_.  Copies can be
ordered by telephone from 1-800-879-4539 (reference #8-6287). * *
* Just received: Volume 7 of the Australasian Gay & Lesbian Law
Journal (1997).  Individual articles are noted above.

AIDS & RELATED LEGAL ISSUES:

Ahitov, Avner, V. Joseph Holz and Thomas Philipson, _The
Responsiveness of the Demand for Condoms to the Local Prevalence of
AIDS_, 31 J. Hum. Res. 869 (Fall 1996).

Engel, Daniel A., _The ADA and Life, Health, and Disability
Insurance: Where is the Liability?_, 33 Tort & Ins. L. J. 227 (Fall
1997) (insurance industry apologist's argument that EEOC Guidelines
on AIDS caps are not supported by the statute).

Fidler, David P., David L. Heymann, Stephen M. Ostroff, and Terry
P. O'Brien, _Emerging and Reemerging Infectious Diseases:
Challenges for International, National, and State Law_, 31 Int'l
Lawyer 773 (Fall 1997).

Fisher, Eric S., _Aidsphobia: A National Survey of Emotional
Distress Claims for the Fear of Contracting AIDS_, 33 Tort & Ins.
L. J. 169 (Fall 1997).

Parts, Mark, _Disease Prevention As Drug Policy: A Historical
Perspective on the Case for Legal Access to Sterile Syringes as a
Means of Reducing Drug-Related Harm_, 25 Fordham Urban L.J. 475
(1997-98).

Patel, F., _HIV Serophobia in the Mortuary: An Algorithm System for
Handling High-Risk Forensic Cases_, 37 Med. Sci. & L. (U.K.) 289
(Oct. 1997).

Retkin, Randye, Gary L. Stein and Barbara Hermie Draimin,
_Attorneys and Social Workers Collaborating in HIV Care: Breaking
New Ground_, 25 Fordham Urban L.J. 533 (1997-98).

_Student Notes & Comments:_

Brown, K. Kathy, _Employment Law - Warning to the Disabled:
Applying for Disability Benefits May Prevent You From Claiming to
Be "Qualified" Under the ADA_, 20 Am. J. Trial Advoc. 669 (Spring
1997).

Luby, Andrea, _Estopping Enforcement of the Americans With
Disabilities Act_, 13 J. L. & Politics 415 (Spring 1997).

Sims, Marney Collins, _Estop It! Judicial Estoppel and Its Use in
Americans With Disabilities Act Litigation_, 34 Houston L. Rev. 843
(Fall 1997).

_Specially Noted:_

David W. Webber, author of the treatise _AIDS and the Law_
published by John Wiley & Sons, has announced establishment of a
website devoted to HIV/AIDS law and policy issues, which can be
accessed at: <http://www.critpath.org/aidslaw>.  In addition to
posting news on new developments, the site will provide links to
important information sources related to AIDS and the law, as well
as information about subscribing to HIV-Law, an internet e-mail
discussion list on AIDS law. * * * Also available on-line at
www.aclu.org are two recently published reports by the ACLU's AIDS
Project: _HIV Surveillance and Name Reporting: A Public Health Case
for Protecting Civil Liberties_ (Oct. 1997), and _The Maryland
Lesson: Conducting Effective HIV Surveillance with Unique
Identifiers_ (Dec. 1997).  Both reports address the current
pressures to institute name-reporting of HIV test results to public
health officials, by noting the adverse impact that such measures
could have on efforts to contain the epidemic consistent with basic
human rights and by demonstrating that adequate information-
gathering can take place using methods that preserve the anonymity
of HIV test takers. Copies of these reports can also be obtained by
telephone order to 1-800-775-ACLU.

EDITOR'S NOTE:

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of identified writers, and are not official positions of the
Lesbian & Gay Law Association of Greater New York or the LeGaL
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attributable to the Editor.  Correspondence pertinent to issues
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