LESBIAN/GAY LAW NOTES ISSN 8755-9021 October 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; Steven Kolodny, Esq., New York City; Todd V. Lamb, Esq., New York City; Mark Major, Esq., Long Island, New York; Sharon McGowan, Harvard Law Student, Cambridge, Massachusetts; 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; Leo Wong, New York Law School Student. Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118; e-mail: le-gal@interport.net LeGaL Homepage: http://www.interport.net:80/~le-gal Law Notes on Internet: http://www.qrd.org/qrd/www/usa/legal/lgln (C) 1998 by the LeGaL Foundation of the Lesbian & Gay Law Association of Greater New York $45/yr by subscription; Foreign Rate US$60 SECOND CIRCUIT REJECTS CHALLENGE TO MILITARY POLICY The U.S. Court of Appeals for the 2nd Circuit has rejected a constitutional challenge to the "don't ask, don't tell" policy governing military service by lesbians and gay men. The September 23 ruling in _Able v. United States_, 1998 WL 647142, was decided by a unanimous three-judge panel, reversing a ruling by U.S. District Judge Eugene Nickerson. The current military policy was enacted in 1993 as an amendment to the annual defense appropriations bill, in response to a public debate generated by President Bill Clinton's promise to end the ban on gay military service. 10 U.S.C. sec. 654(b) provides, in essence, that lesbians and gay men may serve in the military only so long as the military can maintain the fiction that they are not present. If they engage in any conduct or speech that identifies them as being lesbian or gay, the military will presume that they either are engaging in forbidden homosexual conduct or have a propensity to engage in such conduct, and they will be discharged unless they can prove that they do not have such a propensity. (By contrast, heterosexual military members who engage in same-sex sexual activity may be subject to penalties under the Uniform Code of Military Justice, which bans all "sodomy" regardless of the gender of participants, but are not subject to discharge for engaging in such activity if they can prove that they are not, in fact, gay.) This case was planned as a challenge to the constitutionality of the military policy by Lambda Legal Defense & Education Fund and the Lesbian & Gay Rights Project of the American Civil Liberties Union. Lambda's Legal Director, Beatrice Dohrn, appeared as lead attorney in the case, and was joined by Lambda's Ruth Harlow and ACLU Project Director Matthew Coles. Six military members, some active duty and some reserve, agreed to serve as co-plaintiffs, representing all the services, and the nominal defendants are Secretary of Defense William Cohen and Secretary of Transportation Rodney Slater. (The Coast Guard, which maintains a policy identical to the Defense Department, comes under the jurisdiction of DOT.) The action was filed in the U.S. District Court for the Eastern District of New York, and was assigned to Judge Eugene H. Nickerson, who has twice ruled the policy unconstitutional. The first time, Nickerson found the requirement that individuals be discharged if they identified themselves as gay to violate the First Amendment's protection for freedom of speech. On appeal, a 2nd Circuit panel reversed, finding that this part of the policy was a rational way of effectuating Congress's intent to discharge any member with a propensity to engage in homosexual conduct. However, the 2nd Circuit then remanded the case, in light of the Supreme Court's equal protection ruling in _Romer v. Evans_, 116 S.Ct. 1620 (1996), for a determination of whether the military policy as a whole violates the equal protection component of the Due Process Clause of the 5th Amendment. Judge Nickerson subsequently found the policy violative of equal protection, subjecting it to rational basis review and determining that the government had no rational basis for excluding lesbians and gay men from serving on the same basis as heterosexuals. Nickerson found that the only plausible rationale offered by the government was the claim that the morale and unit cohesion of non- gay service members would be undermined by allowing openly gay members to serve, and that this rationale was impermissible since it was grounded in the presumed biases of non-gay service members. Reversing Nickerson's ruling in an opinion by Judge John J. Walker, Jr., the court essentially concluded that the question whether to exclude openly lesbian and gay people from serving in the military was not subject to any serious judicial review. Relying on a series of Supreme Court decisions directing the federal courts to grant great deference to the opinions of military officials on issues within their sphere of expertise, Walker found that there was little scope for judicial review of Congress's decision to enact this policy following extensive hearings and detailed findings based on the testimony of military leaders. "In the military setting," wrote Walker, "constitutionally-mandated deference to military assessments and judgments gives the judiciary far less scope to scrutinize the reasons, legitimate on their face, that the military has advanced to justify its actions. Moreover, in this case the military's justifications are based on factors which are unique to military life. The military argues that the prohibition on homosexual conduct is necessary for military effectiveness because it maintains unit cohesion, reduces sexual tension and promotes personal privacy. These concerns distinguish the military from civilian life and go directly to the military's need to foster `instinctive obedience, unity, commitment, and esprit de corps.'" Since, under the limited rational basis review available for military policy decisions, the policy would enjoy a "strong presumption of validity, . . . we will not substitute our judgment for that of Congress," Walker concluded. Without expressly passing on the detailed record compiled by the plaintiffs to expose the fatuous nature of the government's arguments in support of the policy, Walker focused solely on the testimony of military leaders in support of the policy -- testimony that was faithfully parroted by Congressional staffers in their draft of the policy findings enacted as part of the statute. Having already found that the policy provisions mandating discharge for declarations of homosexuality did not offend the 1st Amendment, the court now added its finding that under the highly deferential rational basis review afforded military policies, the underlying ban on homosexual conduct is constitutional as well, and thus reversed Nickerson's ruling. The possibility of taking this case further appears slim. The three-judge panel that decided this appeal represents an ideological cross-section of the circuit court (the judges were appointees of Lyndon Johnson, Richard Nixon, and George Bush), and it seems unlikely that a petition for en banc review would spark a rehearing. In any event, it seems most unlikely that the Supreme Court will grant certiorari in a challenge to the military policy so long as there is unanimity among the courts of appeals in upholding the policy, so a petition for rehearing en banc would appear to be the logical next step if taking this case to the Supreme Court is the plaintiffs' goal. This case was planned as the vehicle to bring the issue before the Court, and a careful trial record was compiled for just that purpose, but the strategy necessarily relied on the possibility that the 2nd Circuit would uphold Judge Nickerson and create the circuit split necessary to precipitate Supreme Court review. Joining the government in defending the policy was the Family Research Council, an anti-gay organization, which filed an amicus brief. Amicus support for the plaintiffs came from the Servicemembers Legal Defense Network, as well as a coalition of professional associations representing institutions of higher education, and the Association of the Bar of the City of New York. A.S.L. LESBIAN/GAY LEGAL NEWS MINNESOTA APPEALS COURT UPHOLDS FOSTER PLACEMENT IN HOME RUN BY GAY MEN The Minnesota Court of Appeals affirmed a juvenile court's decision to place a child in the foster care of two homosexual men, despite the objection of the child's natural mother on "religious grounds." Specifically, Judge Thomas G. Forsberg held that a statute requiring that a court place a juvenile in a foster home with the same or similar religious background as the child's birth parent is not violated when a child, whose mother's religion holds homosexuality to be a sin, is placed in a foster home run by homosexuals, if the record shows that the religious background of the foster caregiver was not important to the parent, that the entity making the placement was aware of the available placement options, and that the placement was the best possible placement under the circumstances. _In the Matter of the Welfare of G.A.S._, 583 N.W.2d 296 (Sept. 1). The child in question, son of Eve Schuld, was found to be a "child in need of protection or services" (CHIPS) in 1991 and had been in out-of-home placements since that time. In 1995, as a result of his conduct while in an out-of-home placement, the son was adjudicated delinquent on charges of sexual misconduct and assault. Among other difficulties, the son had been diagnosed with mixed bipolar, obsessive/compulsive and paraphilia disorders, had engaged in self-injurious behavior and "has a parent-child relationship problem." Consequently, the son had been discontinued from, or refused by, several institutional placements. In light of his probation, the son was moved into an intensive treatment foster home in 1997. The son's probation officer participated in the decision to move the son to the new placement, a foster home run by two gay men. At this point, Eve Schuld, the natural mother, objected to the placement. Schuld is a member of the Assemblies of God church, whose tenets include "that homosexual conduct is a sin, people should not associate with those who are sinning, and parents have a duty to raise their children in the religious faith." Schuld claimed that her son's placement violated Minn. Stat. 260.181(3)(d), which states that, at the request of a child's birth parent, the juvenile court "shall" place children in foster homes with the same or similar religious background as that of the birth parents. The juvenile court rejected the mother's claim, and she appealed. Although the appellate court noted that the statute's language is mandatory, Judge Forsberg characterized the mother's claims as "moot," because Schuld revealed through her testimony that concerns about homosexuality, rather than about religion, were driving her claims. In particular, the mother testified that "she would not disagree with her son being placed with foster parents who do not practice or foster the practice of the Assemblies of God and would allow [her] son to be placed in a foster home where the foster parents practice a religion other than her own." As a result, the court noted that the mother's objection to the homosexual foster parents was not based on religious preference, but rather on their "affectional preference." In the absence of any statutory violation, the Court of Appeals reverted to the traditional standard of review, requiring that a trial court decision be altered only when there has been "an abuse of its wide discretion." In addition, the court noted that "[the] son's numerous special needs and his history of committing sexual abuse" made the difficulties in finding any type of placement "extreme." Placements had been considered not only in Minnesota, but also in Indiana, Nebraska and West Virginia. In fact, the foster placement agency indicated that the foster home run by the two homosexual men was the "only available placement for a child with needs as extensive as [the] son's needs." While the child protection specialist acknowledged that she was aware of the mother's religious preference, the limited number of options for placement of the son made accommodation of those preferences impossible. The court also pointed out that the only alternative placements offered by the mother were residential placements, which had already been deemed inappropriate for the son, or adult homes, or a combination of the two. The court noted that Minn. Stat. 260.011(2)(a) requires that the best interests of the child must be of paramount consideration in child protection proceedings. In light of the discretion awarded the juvenile court in order to achieve this goal, the court found no error in the decision to place the child in the care of the homosexual foster parents. Because the mother's objections were not truly about religion and because the best interest of the child demanded his placement in the only suitable foster home, the court declined to address the mother's other claims. In particular, the court refused to consider the claims that the son's placement violated Schuld's right to free exercise of religion under the state and federal constitutions, as these claims had not been raised in the lower court proceedings. _Sharon McGowan_ Missouri Supreme Court Renders Mixed Ruling in Custody Case In its first substantive ruling in a custody and visitation case involving a lesbian mother, the Missouri Supreme Court unanimously upheld the trial court's award of custody to the heterosexual father, but disapproved of the trial court's order that the children not be exposed to any known lesbians while the mother is exercising her visitation rights and remanded for reconsideration of the visitation issue. _J.A.D. v. F.J.D. III_, 1998 WL 652165 (Mo. En Banc, Sept. 24). Joseph and Janice DeLong were married in 1985 and had three children. Janice subsequently became sexually involved with women, and the parties separated in March 1994. After eight days of hearing, Circuit Judge Ronald M. Belt ordered the marriage dissolved, enforced a prenuptial agreement governing division of assets, and granted sole custody of the children to Joseph. In his opinion, Belt stated that the best interest of the children would be served by this custody award for the following reasons: Joseph's "greater stability," Janice's "negativism toward [Joseph] and it's [sic] negative impact on the children," Janice's [immaturity in seeking after repeated new love relationships and enmeshing her children's lives in her lover's lives," Joseph's "nearby close extended family," and Joseph's "greater likelihood of promoting a good relationship between the children and the other parent." Belt ordered visitation for Janice, but prohibited the children from being in the presence of "any person known by [Janice] to be lesbian or known by [Janice] to be one who engages in lesbian sexual activity" except for one named person who was identified as a "long time friend of the children," and also prohibited the children to be in the presence during visitation of "any other female, unrelated by blood or marriage, with whom [Janice] may be living." Belt also ordered that Janice and the children participate in a court-supervised "telling session" at which Janice would formally inform the children (who had not yet been told) of her homosexuality. On appeal, the court of appeal reversed, _DeLong v. DeLong_, 1998 WL 15536 (Mo. App. W.D. Jan. 20, 1998), holding that Joseph should have the burden of proving that Janice's lesbian activities were harmful to the children, which should not be presumed. Joseph petitioned to have the case transferred to the Supreme Court, which petition was granted. In its per curiam opinion, the court devoted much of its attention to criticizing the work of Janice's attorney in preparing the appeal papers, asserting that the appeal failed various technical requirements of pleading under Missouri law, and that appellant was improperly asking the court to undertake a virtual de novo review of the trial court's factual findings. However, the court went ahead to decide some substantive questions raised by the appeal. On the issue of custody, the court rejected Janice's assertion that the trial court had based its custody order solely on her sexual orientation. "This contention is false," the court asserted. "The judgment recites that custody was placed with father for a number of reasons. Without question, the guiding star in a custody determination is the best interest of the children. A homosexual parent is not ipso facto unfit for custody of his or her child, and no reported Missouri case has held otherwise. It is not error, however, to consider the impact of homosexual or heterosexual misconduct upon the children in making a custody determination." (The court cites a 1985 Missouri Supreme Court opinion in support of this point, but the cited opinion is not a ruling on the merits on this point, but rather a ruling on an evidentiary point concerning spousal privilege in the context of a custody dispute. The 1985 decision, _T.C.H. v. K.M.H._, 693 S.W.2d 802, does, however, quote with apparent approval a lower Missouri court statement that requires that harm to the children due to the parent's homosexual activity be shown in order for such activity to be a factor in determining custody.) The court concluded that there was substantial evidence in the record supporting the trial court's findings underlying the custody decision. However, the court found the restrictions imposed on visitation to be "too broad," because they prohibit exposure of the children to a broad class of people without regard to whether any individual in the class would be "harmful to the children." In remanding the case, the court directed the trial court "to limit the conditions to apply only to those individuals whose presence and conduct may be contrary to the best interests of the children." The per curiam opinion is quite disingenuous in its characterization of the trial court's ruling. Most of the factors cited by the trial court either relate to the mother's status as a lesbian or derive from the court's characterization of virtually any homosexual conduct or relationship by a lesbian parent as being "misconduct." (The unspoken subtext here is the Missouri penal code, under which, in fact, almost any homosexual conduct by a parent could be characterized as "misconduct" because it is potentially illegal. In Missouri, even mutual masturbation is illegal.) Further, the trial court (as the court of appeal had found) virtually presumed harm to the children from such conduct without requiring the father to prove that such harm had occurred or would occur. Thus, while on its face the court's ruling appears quite "tolerant," in fact it does no more than to track prior Missouri appellate decisions that have piously proclaimed that they are not ruling against lesbian mothers because of their sexual orientation, while proceeding to terminate their custody because of their "misconduct," which consists of living in a loving relationship with another woman. A.S.L. 9th Circuit Reverses Conviction Over Improper Testimony About Defendant's Gay Porn Collection In _People of the Territory of Guam v. Shymanovitz_, 1998 WL 547097 (Aug. 31), the U.S. Court of Appeals for the 9th Circuit reversed the defendant's conviction on multiple counts of criminal sexual conduct with minors, assault, and child abuse, because of the improper and prejudicial admission of testimony concerning his possession of sexually explicit gay adult magazines, of the contents of two articles in those magazines in particular, and on account of the prosecutor's "untempered and provocative" comments during summation. Circuit Judge Reinhardt wrote the court's opinion. Shymanovitz was a middle school guidance counselor in Guam. He began taking groups of boys on camping trips and hikes, and sometimes had them sleep over at his home. He was charged with sexually and physically abusing seven of these boys while they were under his supervision. Several months later, similar charges were filed relating to four more boys. The two indictments were joined. Shymanovitz's house was searched. Some condoms, surgical gloves, a tube of K-Y jelly, some children's underwear, a calendar and six sexually explicit magazines (_After Midnight_, _Playboy" and four issues of "Stroke") were found. Prior to trial, the government filed a motion in limine requesting permission to introduce two articles which appeared in _Stroke_, a gay magazine, on the ground that they were relevant in establishing his intent to commit the offenses. The trial court deferred ruling, but permitted testimony by a police officer as to the nature of the objects found and, in great and lurid detail, to discuss the nature of the contents of the magazine: "photos of men masturbating; performing auto-fellatio; ejaculating; using sex toys; wearing `leather equipment'; paddling one another; and having oral and anal sex." The officer also described the two articles which were the subject of the motion in limine. These were fictional articles describing two couples engaging in sexual acts: one involved a father and son, and the other, a priest and a young boy. The two _Stroke_ articles, the K-Y jelly and a page from the calendar were entered directly into evidence. The court quoted quite extensively from the prosecutor's closing argument. The prosecutor argued quite forcefully that the acts portrayed in _Stroke_ magazine go to his intent to engage in "these types of acts," that he "was motivated" to perform them. The prosecutor dwelled on the police officer's testimony in startlingly explicit detail, as the officer was asked to explain the photos: ejaculation, and what that meant; anal sex, and that meant; dildos, and how they are used; "balls on a string," and how _they_ are used; she discussed leather clothing, particularly the type that expose the genitals. The prosecutor also emphasized that while Shymanowitz had a female roommate, they were merely "friends," and were not linked romantically. Aside from the articles seized from his home, the evidence consisted of testimony of some of the alleged victims. Shymanowitz denied any sexual contact with the minors, arguing that the parents had concocted the allegations for a number of reasons. He pointed to testimony of two of the boys who testified against him before the grand jury, then testified at trial that he had not molested them. Shymanowitz was convicted on 27 counts and acquitted on 8. He was sentenced to four consecutive life terms for first degree sexual conduct, plus 21 years for his convictions on second, third and fourth degree sexual conduct. On appeal, Shymanowitz argued that the introduction of the oral testimony concerning the contents of the _Stroke_ magazine articles was for no other reason than to prejudice the jury by suggesting that he was a homosexual. Judge Reinhardt agreed, concluding that none of the justifications offered by the government concerning offering the articles or the magazines was plausible. The government argued on appeal that this otherwise inadmissible material was allowed as it was being used to prove "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident" in furtherance of the acts charged. The court of appeals concluded that all these materials actually showed was that Shymanowitz liked to read gay porn, that these articles were actually being introduced to show propensity to commit such acts, and that "propensity" evidence is contrary to the underlying premise of the criminal justice system: that the defendant must be tried for what he did, not who he is. Reinhardt noted the wild popularity of crime in modern fiction, and suggested that anyone with even a modest library would have books describing numerous acts of criminal conduct. "Under the government's theory, the case against an accused child molester would be stronger if he owned a copy of Nabokov's _Lolita_, and any murder defendant would be unfortunate to have in his possession a collection of Agatha Christie mysteries or even James Bond stories. Woe, particularly, to the son accused of patricide or incest who has a copy of _Oedipus Rex_ at his bedside." Moreover, the government picked and chose what it wanted to introduce, disregarding other reading material which might have been exculpatory. Finally, and most importantly, the court ruled, the material should have been excluded because any probative value which this material could have had was substantially outweighed by possible prejudice. The extensive testimony regarding the material in _Stroke_ "could easily have caused the jury, rightly or wrongly, to infer that Shymanovitz was a gay man," which is generally deemed to be prejudicial, particularly because he was being tried involved sex crimes and particularly since the articles suggest that he would be interested in or want to participate in deviant acts: those involving incest, auto-fellatio, use of sex toys and leather, and sadomasochism. Because of the perception which many people have of gay people, the court deemed it not merely likely, but highly probable, that the jury would be prejudiced in its deliberations as a result of the articles in question. The conviction was reversed and the case remanded for a new trial, with specific additional instructions directing the trial court to permit expert testimony for the defense concerning possible explanations for inconsistencies in some of the alleged victims' testimony, to rebut government expert testimony. _Steven Kolodny_ U.S. Court of Appeals Upholds Ban of Sexually Explicit Publications in Prisons The U.S. Court of Appeals for the District of Columbia Circuit held that it is not a violation of the First Amendment for a prison to ban internal distribution of sexually explicit material to prisoners. _Amatel vs. Reno _, 1998 WL 611114 (Sept. 15). The appeals court found that "common sense" was enough for Congress to rationally think that a ban on sexually explicit material would contribute to prisoner rehabilitation. In 1996, Congress passed the Ensign Amendment barring the use of Bureau of Prisons funds to pay for the distribution of commercial material that "is sexually explicit or features nudity." Under the regulations, however, there is no restriction on non-pictorial sexually explicit material. In 1997, three inmates were each denied receipt of a popular porn magazine and filed suit. The district court found the Ensign Amendment facially invalid and enjoined its enforcement. The government appealed. Writing for the court, Judge Williams undertakes a hairsplitting reasoning on the proper standard of review. Both sides agreed that the _Safley_ standard sets out the appropriate framework for reviewing government regulation of prisons (_Turner v. Safley_, 482 U.S. 78 (1987)), directing courts to uphold a regulation, even one circumscribing constitutionally protected interests, so long as it "is reasonably related to legitimate penological interests." Here, the government asserts that the "interest" is rehabilitation of prisoners, arguing that there is a nexus between sexually explicit material and its impediment to rehabilitation and because pornography "pose[s] a threat to the security, good order, or discipline of the institution, or facilitate[s] criminal activity." Williams agrees that the legislature could rationally have seen a conflict between pornography and rehabilitative values and does not purport to agree with it, only that the legislature might reasonably have thought that it would. The government proffered a battery of Catherine MacKinnon anti-porn articles along with others; however, as Williams concedes, there is no "record evidence" or science supporting it. Somehow, this does not wound the case in the court's eyes because, as Williams writes, "common sense" need not be the "handmaiden of social science data or expert testimonials in evaluating congressional judgments" but that "conformity to commonsensical intuitive judgments is a standard element of both reasonableness and rationality." In other words, "[c]ommon sense tells us that prisoners are more likely to develop the now-missing self-control and respect for others if prevented from poring over pictures that are themselves degrading and disrespectful." The court does not say that the evidence presented was conclusive on the efficacy of the ban, but that it was enough to make the legislature see a connection between the two, therefore surviving the _Safley_ standard of reasonableness. It is here where Judge Wald takes issue and pens a sharp dissenting opinion of nearly equal length. Wald insists that the ban is clearly a First Amendment issue and requires its classic standard of review. She concedes that some incursion is necessary, but that courts should give a large measure of deference to the prison administrators since they are in the best position to judge when or in what manner certain institutional interests may require some action on prison problems. Wald even references Malcolm X's St. Paul-like conversion attributable to his prison experiences, and to deny prisoners from participating in the "market place of ideas" could cause more problems that it is seeking to prevent. She objects to the majority's reading of _Safley_ to mean permitting "unblinking deference" to merely plausible legislative judgment about the rehabilitative benefits of denying a prisoner's most fundamental constitutional right as her freedom to read (porn?), but rather, it should reconcile prisoners' constitutional rights with institutional needs and defer to prison administrators as the most appropriate articulators of those needs. Wald's biggest point of contention with the majority was that there was no record evidence that the regulation had any valid, rational connection between the ban and rehabilitation, that the studies presented were merely "correlative," and closes with a quote by Dostoyevsky underscoring Wald's fear of potential abuse of such a holding. _K. Jacob Ruppert_ Indiana Appeals Court Finds Sexual Orientation Evidence Relevant to Prosecution for Leaving Scene of Accident The Indiana Court of Appeals upheld the conviction and four-year sentence of Robert E. Utley for failing to stop and remain at the scene of an accident after he accidently hit his former lover with his car outside a bar. However, the court reversed the trial court's order that Utley pay for the funeral, while upholding the admittance of evidence of Utley's sexual orientation. _Utley v. State_, 1998 WL 638275 (Ind. App. Sept. 18). Utley was acquitted of reckless homicide. Utley and the victim had previously been involved for over 11 years. On October 13, 1996, the two had an argument at a bar. Utley left and began driving away. The victim ran along side the car, was struck and died. Utley heard a "thump" and drove on. Minutes later he returned, saw an ambulance, and left again. Utley contended that the trial judge, Kathryn A. Sullivan, should have excluded evidence "reflecting upon his sexual preference" since it was irrelevant to the charges and created the "danger of unfair prejudice" which outweighed its "probative value." Judge Bailey, writing for the appeals court, found that "manifest abuse of the trial court's discretion" was required to reverse an evidentiary ruling. While the appeals court found that one's "sexual preference or propensities are generally considered character evidence," in this case it was not admitted for the "forbidden inference of demonstrating Utley's propensity to commit the charged crime." The "intimate nature of Utley's relationship with the victim was highly probative and relevant to explain the context of the argument which preceded" the accident, the court found. Judge Bailey noted that the evidence "incidentally discloses sexual conduct, which by definition, reflects upon the defendant's character." The appeals court rejected contentions alleging improper jury instructions. While the four year sentence was upheld, the court vacated the order that Utley pay for his ex-lover's funeral, saying that Utley would have had to be convicted of the reckless homicide charge for restitution to be allowed. _Daniel R Schaffer_ Mass. Appeals Court Rules Against University in Meeting Controversy The University of Massachusetts at Boston violated both the state constitution's declaration of rights and the state's civil rights law when administrators closed down a university building to prevent a group from meeting on the premises to plan a demonstration in support of gay rights, AIDS education and reproductive rights. _Reproductive Rights Network v. President of the University of Massachusetts_, 1998 WL 646860 (Mass. App., Suffolk Co., Sept. 22). In June 1990, a graduate student at UMass got several groups, including ACT UP/Boston, the Reproductive Rights Network, and the Coalition for Lesbian and Gay Civil Rights, to agree to sponsor some planning meetings for a proposed demonstration against Bernard Cardinal Law because of the positions he was taking publicly against AIDS education in the schools, gay rights, and reproductive rights. The student obtained assistance from a UMass professor in reserving a meeting room at the school for this purpose. Flyers were distributed in Boston publicizing the meetings, which brought them to the attention of some trustees of the University. These trustees protested to the president of the University about their facilities being used for these purposes. The listing on the flyer of ACT UP/Boston as a sponsor was apparently the spark that caused concern, since this was but a short time after ACT UP/New York had stirred national outrage by disrupting a service at St. Patrick's Cathedral in New York City. The administrators allowed the first meeting, on a weeknight, to take place. Only 8 to 10 people attended and the event passed with little notice. But further pressure from the trustees caused the president to decide to close up the University building in question on Friday afternoon. Dozens of professors and students who were carrying on their normal activities were ousted from the building by a phalanx of University security officers. About 30-40 people showed up for the meeting, were denied access to the building, and held their meeting on the sidewalk in front of the building. On Sunday, the demonstration was held at the Cathedral. A few weeks later the University president issued a statement asserting that the building had been closed for safety reasons and because the sponsoring groups had not gone through the appropriate channels to reserve the rooms and provide security for their meeting. The coalition of groups sued the University, claiming a violation of their rights under the state constitution's Declaration of Rights and under the Massachusetts Civil Rights Law. The trial court ruled for plaintiffs on the constitutional claim, but denied the civil rights law claim (and thus deprived the plaintiffs of an attorneys fee award, which would come only under the statute). The appeals court affirmed as to the constitutional claim, but reversed on the civil rights law claim, holding that both causes of action are valid, and remanded for a further determination of the plaintiffs' entitlement to attorneys fees. While so holding, the appeals court also affirmed the trial court's injunction, permanently enjoining the University from interfering with the plaintiffs' right to use University facilities for political meetings. In an opinion by Justice Greenberg, the court rejected the University's argument that its decision to close the building was a reasonable restriction on speech for security reasons and not content-based. Greenberg also approved the trial judge's determination that there was no basis for believing that the plaintiffs sought to meet for purposes of furthering a criminal conspiracy, as alleged by the defendants, to disrupt a church service. Although their demonstration was planned to take place outside the Cathedral while the Cardinal was conducting a mass, the court found no basis to believe that the plaintiffs were planning to emulate the actions of ACT UP/New York by entering the Cathedral to disrupt the service. Under the Massachusetts Civil Rights Act, the plaintiffs had to prove that defendants sought to violate their rights secured by the constitution by interfering with the exercise of those rights through threats, intimidation or coercion. The defendants argued, and the trial court agreed, that closing the building did not come within that description of prohibited conduct. Justice Greenberg pointed out that Massachusetts courts had given a broad reading to the statutory language to effectuate the legislative purpose, finding analogies in past decisions to the University's action of using security guards to block access to a publicly-owned building. "In the instant case, the heavy-handed use of police power was unwarranted in the circumstances and substantially exceeds the evidence of `threats, intimidation, or coercion' found in [prior cases]," wrote Greenberg. A.S.L. No Downward Sentencing Departure for Gay Defendant A gay man who pled guilty to receiving and downloading child pornography from the Internet on his computer, in violation of 18 U.S.C. sec. 2252(a)(2), is not entitled to a downward departure from federal sentencing guidelines, according to U.S. District Judge Kopf (D. Neb.). _U.S. v. Petersen_, 1998 WL 565938 (Sept. 2). Russell Petersen, 40, pled guilty to charges of receiving child pornography after the FBI confiscated 23 computer diskettes from his home, several of which contained pictures of children engaged in sexually explicit conduct. Petersen's ex-wife tipped off the authorities and informed them that she had seen him download the pictures in question. Petersen's counsel argued to Judge Kopf that this case was similar to the decision in _U.S. v. Shasky_, 939 F.Supp. 695 (D.Neb. 1996), in which Judge Kopf granted a downward departure to the sentence of a gay Nebraska state trooper. Kopf disagreed that _Shasky_ was controlling, noting that it "should not be read to apply to factual situations which are not strictly analogous." The court elaborated by pointing out that Shasky was "diminutive" in stature and weight, and therefore "unusually susceptible to abuse in prison," unlike Petersen, who is 5'10" and weighs almost 200 pounds. The court also explained that Shasky had engaged in "extraordinary" post-offense rehabilitation efforts; by contrast, Petersen was found by a court-appointed doctor and an expert sex therapist not to be a good candidate for treatment. The court was also unpersuaded by Petersen's argument that a downward departure was warranted because his two children, one of whom has cystic fibrosis, rely on him for medical insurance and treatment. The court explained that this fact alone did not distinguish Petersen from any other family dealing with a parent who may be incarcerated. Additionally, there was no evidence showing that the children's mother was unable or unwilling to provide insurance in some alternative fashion. Petersen faces 15 to 21 months in prison, or between 2 to 3 years of supervised release, plus a fine of $4,000 to $40,000. The federal sentencing guidelines do not authorize probation for Petersen's offense. _Ian Chesir-Teran_ Pro-Gay Professor Loses Discrimination Case Magistrate Judge Wilkinson (E.D.La.) granted summary judgment to defendants and ordered the dismissal of the plaintiff's case, with prejudice, in _Marino v. Louisiana State University Board of Supervisors_, 1998 WL 560290 (Aug. 27), a lawsuit alleging discrimination and retaliation against a university in a dispute over a faculty appointment decision. In 1994, a University of New Orleans student completed his M.A. thesis on affectional preference in the writings of Balzac. Dr. Virginia Marino, a tenure-track assistant professor, directed the thesis, and chaired the thesis committee after the original committee resigned (partly because of the topic). The committee unanimously passed the thesis, and Marino enthusiastically reported its success to the faculty. Subsequently, she alleged discrimination against her as a woman and in retaliation for, among other things, exercising First Amendment rights regarding the thesis, after her department voted against reappointment for her. She declined to be considered again for re-appointment, and sued. Magistrate Judge Wilkinson granted summary judgment to the defense, finding no evidence of discrimination or even cognizable adverse action. Despite failing department publication requirements, Marino had received an additional one-year contract at the undergraduate level with a small raise. _Otis R. Damslet_ First Gay Business Targeted by Giuliani Survives Court Test Under New Zoning Rules Now that the courts have upheld the constitutionality of New York City's zoning ordinance restricting the location of adult businesses, the City has begun enforcement efforts targeting individual businesses. Among the earliest targets is Les Hommes, an establishment on the Upper West Side of Manhattan that has provided a sexual outlet for gay men for about twenty years. But Justice Stephen Crane has ruled in _City of New York v. Show World_, NYLJ, 9/14/98 (N.Y.Sup.Ct., N.Y. Co.), that the owners of Les Hommes have changed the nature of the business sufficiently to evade the new rules. In addition to selling gay porn (magazines and videos) and sex aids, Les Hommes has featured video booths and two small theaters exhibiting sexually explicit gay male videos. Since the business sits in the midst of a residential neighborhood, it can continue to operate under the zoning ordinance only if it successfully transforms itself to the extent that it is no longer an "adult business" within the meaning of the ordinance. The owners of Les Hommes cut down the proportion of sexually explicit inventory in the front portion of the premises to be about 30 percent of the total, switched to showing wrestling videos in the two theaters, and altered the booths so that their users would no longer have a choice of gay porn videos, but would only be able to see the non-sexual wrestling videos. Nonetheless, the City claimed that Les Hommes continues to be an adult establishment, and so should not be allowed to operate in the residential Upper West Side. While acknowledging that as currently operated, Les Hommes devotes less than 40 percent of its inventory and its floor space to adult uses, the City argued that the changes were not necessarily permanent, as Les Hommes might resume showing sex videos after the initial fuss of city inspections died down. Further, the City argued, the court should focus on the overall character of the business, and especially on the proportion of revenue derived from adult uses, rather than just looking at proportion of inventory and floor space. The Les Hommes case was combined with cases involving two non-gay adult businesses in Manhattan, and the arguments were similar in all three. In ruling in favor of the three businesses, Justice Crane found that in each case the owner appeared to have followed the suggestions contained in formal procedures published by the City Department of Buildings, in which inspectors were instructed to use a formula to evaluate businesses under which a business would only be covered under the zoning ordinance if its sexually-oriented inventory and uses were at least 40 percent of total inventory and uses. The procedures specified that inventory and floor space were to provide the basis of measurement. Justice Crane found that having issued these procedures, the City should in fairness be bound by them, especially where business owners made a significant investment in altering their premises to comply. Crane rejected the City's argument that he should look at other factors not specified in the procedures. Crane found that Les Hommes provided the "closest case" of the three establishments. Apart from dismantling an expensive mechanism that allowed users of booths to select among 30 porn videos, he found that Les Hommes had not engaged in any significant structural alterations comparable to the other two businesses. Furthermore, he decided to count the booths as adult uses, despite the substitution of wrestling videos for adult videos. However, even when the booths were so designated, Les Hommes still complied with the inventory and space proportions specified in the procedures. Crane rejected the City's argument that his decision should turn on whether it was possible for a business to revert to adult uses after the inspectors stopped coming to visit. The City could make periodic inspections of former adult businesses to insure that they had not reverted to impermissible operations in their location. "The court has concluded, then, that, because of the substantiality of the changes made to NRS and Show World and the expenses and costs NRS, Show World and Les Hommes have experienced in `doing their best to comply,' the [City has] failed to establish by clear and convincing evidence that these establishments as currently configured fall within the definition of `adult establishment' under ZR sec. 12-10," wrote Crane. "Les Hommes comes dangerously close due to the use of its mini theaters which could change overnight. But the exhibit of wrestling videos has been confirmed by city inspectors. Yet, it cannot be said for this potential of recidivism alone that plaintiffs [the City] have sustained their burden against Les Hommes." The City announced that it would not appeal Crane's ruling, possibly fearing that an appellate affirmance would more firmly lock in the current approach to evaluating businesses. However, the City might well amend its formal procedures to adopt some of the arguments that the City's attorneys made about examining other factors to determine the essential nature of a business under the zoning ordinance. A.S.L. Law & Society Notes The Associated Press reported September 23 that New Jersey Superior Court Judge Philip B. Cummis rejected a lesbian co-parent's attempt to secure joint custody and visitation rights with the children she had been raising with her former partner. _V.C. v. M.B._ (N.J.Super.). According to the press report, Judge Cummis analogized the co-parent to a step-parent, and found that New Jersey law does not give a step-parent a right of custody or visitation after the step-parent's relationship with the legal parent has ended. The judge also noted testimony that all major decisions concerning the children were made by their legal mother, concluded: "There is evidence the plaintiff participated in activities and responsibility surrounding the children, but this participation has not been proven to rise to the level of co- parent." After the women's relationship ended in August 1996, they agreed on an informal visitation schedule, but M.B. later decided to sever V.C.'s relationship with the children. News reports about an attempt by a gay couple to adopt a child have stirred two Indiana state representatives to announce that they will introduce legislation to ban gays from adopting children. At present, the only states with such legislative bans are New Hampshire and Florida. A spokesperson for the Indiana Family and Social Services Administration told the _Chicago Tribune_ (Sept. 22) that the sexual orientation of prospective parents is not considered by the agency in making adoption placement decisions. The Cook County, Illinois, Human Rights Commission voted to award $50,000 damages for pain and suffering and $45,000 in back pay, interest, and lost value of benefits, to Dale Hall, a gay man who sued Red Lobster after the restaurant fired him because of his sexual orientation. The panel unanimously upheld a hearing officer's ruling, and increased the damages recommended by the hearing officer. In addition, the Commission issued a cease and desist order, and ordered Red Lobster to conduct diversity training at all six of its Cook County restaurants. (The case had earlier won notoriety when lawyers for Red Lobster argued in their brief to the Commission that the County gay rights ordinance was invalid. Red Lobster subsequently ordered its lawyers to withdraw that argument after pressure from gay rights activists.) _Chicago Tribune_, Sept. 12. The Worcester, Mass., _Telegram & Gazette_ reported Sept. 9 that two men who used the Internet to lure a gay man to a secluded area where they beat and robbed him have been sentenced to jail terms after pleading guilty to charges of armed robbery, assault and battery, intimidation of a witness, civil rights violations, conspiracy, and threatening to commit a crime. William D. Peters used an internet gay chat room to strike up an acquaintance with Charles G. Read and persuade him to meet Peters in the early morning hours at an athletic field in Webster, Mass. When Read, showed up, Peters and his confederate, Frank Labbe, taunted him about his homosexuality, beat and kicked him, and stole various items from his car (which were later recovered). When Read went to police and they questioned Peters, Read received an anonymous phone call threatening to kill him if he cooperated with the police investigation. In light of the seriousness of these offenses, it is surprising that the District Attorney recommended relatively light prison sentences which were imposed by Judge Martha B. Sosman in Worcester Superior Court. Peters was sentenced to 4-6 years, Labbe to 3-5 years. _Commonwealth v. Peters & Labbe_. The Riverside, California, _Press-Enterprise_ reported Sept. 11 that Riverside County Superior Court Judge Vilia Sherman has sentenced Michael Stewart to 4 years for auto theft and 15 years to life for second degree murder in the death of Jere Dodge, a gay man. Stewart met Dodge in an area of Riverside's Fairmount Park that is a gay cruising ground. They rode together to a field in El Cerrito to have sex. After they had sex, Stewart got into Dodge's car, drove over him and crushed his chest and face and made off with the car. He later told a roommate that he had killed Dodge to get the car, but told police that Dodge had been rough with him during sex so he tried to make him stop and ran over him by mistake. Judge Sherman excoriated Stewart as "callous and vicious" before passing sentence. The Alaska Supreme Court ruled Sept. 22 that a ballot question to add an amendment to the state constitution banning same-sex marriage must be revised to drop part of the contested wording, but that the issue will remain on the ballot this Nov. 3. Voters will see the following question: "To be valid or recognized in this state, a marriage may exist only between one man and one woman." The second sentence, which was removed by order of the court, stated: "No provision of this constitution may be interpreted to require the state to recognize or permit marriage between individuals of the same sex." The court's decision was not available by press time, but will be discussed in the next issue of _Law Notes_. California State Senator Pete Knight of Palmdale has submitted petitions containing more than 675,000 signatures to the Los Angeles County Registrar, seeking a ballot question to outlaw same- sex marriage in California. The proposed California Defense of Marriage Act, which the legislature has refused to pass, would most likely be on the June 2000 ballot if the registrar determines that the petitions contain at least 433,269 valid signatures of registered voters. _San Francisco Chronicle_, Sept. 22. An internet posting from an employee reported that Harcourt- General, a Fortune 500 company, will extend all benefits plans to cover domestic partners in November 1998. H-G owns Harcourt Brace publishing company, Nieman Marcus, Bergdorf Goodman, and a host of other companies. Also, an employee at Practising Law Institute in New York reports that PLI will begin offering dependent coverage for domestic partners in October 1998. In _Bledsoe v. Texas Department of Protective and Regulatory Services_, filed Sept. 1 in state court in Dallas, Rebecca Bledsoe, a social worker who was demoted after removing a foster child from the home of a lesbian couple, is suing to get her demotion reversed. Bledsoe argues that homosexual conduct is a crime in Texas, thus justifying her action in removing the child. _Dallas Morning News_, Sept. 2. The Wayne County, Michigan, Circuit Court, Judge Susan Borman presiding, has ruled that Michigan State Representative Deborah Whyman defamed the Triangle Foundation, a gay rights group, in her campaign literature in 1996, when she alleged that Triangle Foundation supports "sex acts between grown men and boys." The campaign literature also stated, without any basis in fact, that Triangle Foundation supported Whyman's opponent in the campaign. (As a tax-exempt educational foundation, Triangle does not make campaign endorsements.) Judge Borman found that, contrary to the assertions in the campaign literature, Triangle had never proclaimed support for intergenerational sex between men, and had never violated its tax status by endorsing a candidate. She awarded Triangle Foundation more than $15,000 in damages. (Based on Triangle Foundation Press Release, Sept. 15.) A.S.L. Legislative Notes California Governor Pete Wilson has vetoed a bill that would have required insurance companies in California to provide health insurance plans that include domestic partner coverage as an option. One of the important problems faced by employers who want to provide such benefits is that many insurance companies do not offer such plans. As the fad for self-insurance among large employers has faded in the rush to managed care HMO-type plans, this has presented a significant stumbling block for many employers. The bill in question was intended to address the problem in California. Wilson, who had previously vetoed very limited domestic partnership legislation, has a record of hostility on this issue. The only lobbying groups opposing this legislation were "traditional family values" organizations; the insurance industry had not been opposed. _San Francisco Chronicle_, Oct. 1. On another front, Gov. Wilson has signed a bill that amends California's bias crime law to provide that transgendered persons are among those to be protected from bias-motivated crimes. The fishing village of Sorrento, Maine, unanimously adopted a gay rights ordinance by voice vote during a town meeting on Sept. 15. The 300-person village had voted 2-1 earlier this year against a state referendum to repeal a gay rights law. Selectman Constance Dedam drafted the proposal in response to expressions of disappointment by several town residents about the result of the referendum. On the Nov. 3 election ballot, voters in South Portland and Ogunquit will consider propositions to add gay rights protections to their local ordinances. The Orono Town Council will vote on such a measure on Oct. 19, and proposals to adopt gay rights ordinances are under consideration in Falmouth and Camden. The neighboring town of Bar Harbor passed an ordinance earlier this year. _Bangor Daily News_, Sept. 26. A.S.L. Transsexual Rights under European and U.K. Law On July 30, in _Sheffield & Horsham v. United Kingdom_ (www.dhcour.coe.fr), the European Court of Human Rights in Strasbourg held that the U.K. Government's refusal to amend the birth certificates of Kristina Sheffield and Rachel Horsham, two (post-gender reassignment) transsexual women who were born male, does not violate Articles 8 (right to respect for private life), 12 (right to marry) and 14 (non-discrimination) of the European Convention on Human Rights. In declining to follow the opinion of the European Commission of Human Rights (1997 LGLN 78, www.dhcommhr.coe.fr) that there had been a violation of Article 8, the court rejected a claim by a British transsexual person for the fourth time. The court had previously found no violations in _Mark Rees v. U.K._ (1986), _Caroline Cossey v. U.K._ (1990), and _X, Y & Z v. U.K._ (1997 LGLN 77). Although a passport and a driving license showing her sex as female had been issued, Kristina Sheffield complained (1) that she had been required to divorce her former wife as a pre-condition to surgery and had been denied access to her daughter, (2) that her birth certificate and various records (including social security and police records) continue to show her sex as male, (3) that she had been required to disclose her birth sex or former name or both when applying for a U.S. visa, appearing in court, asking to see her police computer file, and applying for car insurance, and (4) that she had experienced employment discrimination (dismissal from her job as a pilot and subsequent refusals to hire her) as a result of the legal position of transsexuals in the U.K. Rachel Horsham complained that she wished to marry her non-transsexual male partner in the Netherlands (where the marriage would be valid) and return with him to the U.K. (where it might not be recognized). Written observations (an amicus brief) were submitted by Liberty (the British equivalent of the ACLU). These noted that only the U.K. and 3 other European countries of 37 studied "do not permit a change to be made to a person's birth certificate in one form or another to reflect the re-assigned sex of that person." This evidence of an apparently overwhelming European consensus in favour of amending birth certificates did not sway the majority of the court (11 of 20 judges), who treated the case, like _Rees_ and _Cossey_, as one involving a "positive obligation," i.e., the issue was "not that [the U.K.] should abstain from acting to [the applicants'] detriment but that it has failed to take positive steps to modify a system which they claim operates to their prejudice." The majority found that since _Cossey_ in 1990 "there have [not] been any findings in the area of medical science which settle conclusively the doubts concerning the causes of the condition of transsexualism." As for Liberty's comparative study, the majority was "not fully satisfied that the legislative trends . . . suffice to establish the existence of any common European approach . . . as to how to address the repercussions which the legal recognition of a change of sex may entail for other areas of law such as marriage, filiation, privacy or data protection," or as to the circumstances in which disclosure of birth sex might be compelled. "[T]ranssexualism raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among [Council of Europe member states] . . ." Nor had there been "detriment of sufficient seriousness." The incidents complained of "were a source of embarrassment and distress," but "do not occur with a degree of frequency which could be said to impinge to a disproportionate extent on [the applicants'] right to respect for their private lives." The U.K. did not therefore have "a positive obligation under Article 8 . . . to recognise in law their post-operative gender." However, the majority did note that "there is an increased social acceptance of transsexualism and an increased recognition of the problems which post-operative transsexuals encounter," and stressed, as in _Rees_ and _Cossey_, that governments must keep this area under review. The U.K. "has not taken any steps to do so." In his concurring opinion, Judge Sir John Freeland (U.K.), found no violation "with some reluctance" and acknowledged that "continued inaction on the part of [the U.K.], taken together with further developments elsewhere, could well tilt the balance in the other direction." As for Article 14 in conjunction with Article 8, the court unanimously found no violation, because the considerations mentioned above "must also be seen as justifying the difference in treatment which the applicants experience." And the court held (by 18 votes to 2) that "the inability of either applicant to contract a valid marriage under [U.K.] law . . . cannot be said to constitute a violation of Article 12 of the Convention." It repeated its view, previously expressed in _Rees_ and _Cossey_, that the right to marry guaranteed by Article 12 refers to the traditional marriage between persons of opposite biological sex. . . . Article 12 is mainly concerned to protect marriage as the basis of the family." Dissenting Judges van Dijk (Netherlands) and Wildhaber (Switzerland) would have found violations of Articles 8 and 12. In _Sheffield & Horsham_, the European Court of Human Rights cited _P. v. S. and Cornwall County Council_ (1996 LGLN 82, [1996] ECR I-2143), in which the European Court of Justice in Luxembourg held that dismissing an employee "for a reason related to a gender reassignment" violates European Community sex discrimination law. The more generous protection in EC law was successfully invoked by Kristina Sheffield before an Industrial Tribunal in Bedford, England against Air Foyle, a charter airline which had twice refused her interviews for pilot jobs, in spite of her 32 years of Royal Air Force and other flying experience. _The Pink Paper_ reported on Sept. 11 that the Tribunal had awarded her about 15,000 pounds for injury to feelings and about 63,000 pounds for loss of potential earnings. The airline plans to appeal the amount awarded to the Employment Appeal Tribunal. This correspondent had the pleasure of attending one day of the Third International Congress on Sex and Gender, entitled Transgender Agenda: An Inter-Disciplinary Conference for the End of the Millennium," held at Exeter College, University of Oxford, Sept. 18-20. The main organizer was transsexual male law professor Stephen Whittle (X in _X, Y & Z v. UK_, 1997 LGLN 78). Susan Marshall, transsexual female Home Bursar of Exeter College, arranged the use of the beautiful venue and addressed the conference dinner in the College's 300-year-old Hall, along with non-transsexual Member of Parliament Lynne Jones. It was an extremely valuable education to spend a day among perhaps 100 transsexual and intersexual persons, of about 150 at the conference, and to be part of a non-transsexual minority for a change. And a transsexual "takeover" of an Oxford college is surely a landmark on the long road to equality for transsexual persons! _Robert Wintemute_ Professional Notes Tammy Baldwin, an openly-lesbian attorney and state legislator, won a hotly contested primary election on Sept. 8 to become the Democratic nominee for the U.S. House of Representatives from Wisconsin's 2nd Congressional District (Madison). In a 4-way race that drew almost 65,000 votes, Baldwin's total of 24,047 edged out the next highest candidate by about 1500 votes. _Wisconsin State Journal_, Sept. 9. Scott Bernstein, an openly-gay attorney, has won election to the Dade County, Florida, Circuit Court in a general election held on September 1. _Washington Blade_, Sept. 25. Lambda Legal Defense & Education Fund has announced the hiring of two additional staff attorneys for its national headquarters office in New York. Marvin C. Peguese, a 1998 graduate of University of California at Berkeley Law School, was editor-in-chief of that school's _African-American Law & Policy Report_ and the first recipient of a prize for excellence in clinical advocacy. A native of North Carolina, he will focus on youth, criminal and immigration law matters. Doni Gewirtzman, also a 1998 graduate of Berkeley, was an editor on the _California Law Review_, and had previously interned in Lambda's Los Angeles office. Gewirtzman joins Lambda under the Skadden Fellowship Program (which means that his position is being underwritten by the law firm of Skadden Arps Slate Meagher & Flom), and will focus on legal issues affecting lesbian and gay senior citizens. The addition of Peguese and Gewirtzman brings Lambda's full-time legal staff to sixteen attorneys in four offices. The Atlanta (Georgia) Legal Aid Society has announced an opening for an experienced attorney to work as a legal work supervisor in its AIDS Legal Project. The job requires client representation, supervising the work of other lawyers and paralegals, community work, and may also lead to participation in the management of the agency. At least 5 years legal experience, Georgia bar membership (or willingness to take the next scheduled Georgia bar exam), and past experience in providing legal services to low income persons, especially in an HIV context, are important qualifications. Salary is $38,000 or up, depending on experience, with full fringe benefits. Letters of application and resumes can be faxed to 404- 525-5710, marked "AIDS Attorney, attention Marian Burge," to be followed within ten days by a complete application packet including legal writing sample, names and phone numbers of three legal references, and a law school transcript, to: Marian Burge, Deputy Director, Atlanta Legal Aid Society, 151 Spring Street NW, Atlanta, GA 30303-2097. A.S.L. International Notes Canadian attorney Stephane Gendron has filed an action seeking a marriage license on behalf of a gay couple, Michael Hendricks and Rene LeBoeuf, from the government of Quebec. The action was filed Sept. 14 in Montreal Superior Court. Gendron is advancing two legal theories: that denial of a marriage license violates the Quebec Charter of Rights and Liberties, which prohibits sexual orientation discrimination by the province, and alternatively that the Canadian Constitution gives legislative power over marriage to the federal government, and thus Quebec's refusal of a marriage license is ultra vires. Based on Internet posting by Stephane Gendron. The _Toronto Globe and Mail_ reported Sept. 11 that a male-to- female transsexual Quebec lawyer who is having a sex change procedure is not eligible to be designated female on her driver's license. Justice Louis Rochette of Quebec Superior Court ruled that under the Civil Code only a post-operative transsexual can have official documents changed. Pierre Montreuil has already effected name changes to Micheline Montreuil on her passport, social-insurance registration, bar association membership, and several credit cards. The _Daily Mail_ (Sept. 9) reports that a gay man from Romania has been granted asylum by the British government. Sorin Mihai persuaded the Home Office that he would be subject to persecution were he to return to Romania, where gay sex has been illegal until recently, and even the recent repeal legislation leaves the status of gay sex somewhat ambiguous. Journalist Rex Wockner has reported that the Colombia Constitutional Court ruled Sept. 10 by 5-4 that a law mandating the discharge of openly gay school teachers is unlawfully discriminatory. A.S.L. AIDS & RELATED LEGAL NOTES Canada's Supreme Court Criminalizes Non-Disclosure of HIV+ Status Before Consensual Unprotected Sexual Intercourse On Sept. 3, the Supreme Court of Canada held in _R. v. Cuerrier_ that an HIV+ person's lying about (all 7 judges), or failing to disclose (at least 5 of 7 judges) their HIV status to a sexual partner may constitute fraud, thus vitiating the partner's consent to unprotected sexual intercourse, and thus rendering the HIV+ person guilty of aggravated assault under sec. 268 of the federal Criminal Code. (Criminal law in Canada is under exclusive federal jurisdiction, which means that there is only one federal offence of aggravated assault for all ten provinces and two territories.) Section 268 provides: "Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant." The maximum sentence is fourteen years in prison. Under sec. 265(1)(a), "[a] person commits an assault when . . . without the consent of another person, he applies force intentionally to that other person," and under sec. 265(3)(c), "no consent is obtained where the complainant submits . . . by reason of . . . fraud". After testing HIV+, Henry Gerard Cuerrier had sexual intercourse (presumably vaginal) with one woman at least 100 times and another woman 10 times, mainly without condoms. He did not disclose his HIV status, and both women testified that they would not have consented to sexual intercourse had they known it. Neither had tested HIV+ at the time of the trial. He was charged with two counts of aggravated assault, but the trial judge directed an acquittal and the British Columbia Court of Appeal upheld it. The Supreme Court of Canada reversed and ordered a new trial. Justice Cory wrote for a majority of four. He began by finding that "[t]here can be no doubt that the respondent endangered the lives of the complainants by exposing them to the risk of HIV infection through unprotected sexual intercourse. The potentially lethal consequences of infection permit no other conclusion. Further, it is not necessary to establish that the complainants were in fact infected with the virus. There is no prerequisite that any harm must actually have resulted." He then considered whether the complainants' consent had been vitiated by fraud, and whether sec. 265(3)(c) had removed the common law requirement that the fraud relate to the "nature and quality of the act" or the identity of the partner. He concluded that "both the legislative history and the plain language of the provision suggest that Parliament intended to move away from the rigidity of the common law requirement." He saw no reason "why, with appropriate modifications, the principles which have historically been applied in relation to fraud in criminal law cannot be used," i.e., there must be "dishonesty, which can include non-disclosure of important facts, and deprivation or risk of deprivation." He added that "[t]he deadly consequences that non-disclosure of the risk of HIV infection can have on an unknowing victim make it imperative that as a policy the broader view of fraud vitiating consent advocated in the [English cases before _R. v. Clarence_ (1888), 22 Q.B.D. 23] and in the U.S. decisions [such as _Kathleen K. v. Robert B._, 198 Cal. Rptr. 273 (Ct. App. 1984)] should be adopted." The dishonesty requirement is satisfied by "either deliberate deceit respecting HIV status or non-disclosure of that status." True consent "must be consent to have intercourse with a partner who is HIV-positive . . . the greater the risk of deprivation the higher the duty of disclosure." The deprivation requirement is satisfied where the consenting person is exposed to "a significant risk of serious bodily harm." Justice Cory observed that "[t]o have intercourse with a person who is HIV-positive will always present risks . . . Yet the careful use of condoms MIGHT be found to so reduce the risk of harm that it could no longer be considered significant . . ." (Emphasis added. A nice bit of uncertainty there; please let us know when you decide!) Justice Cory rejected Justice L'Heureux-Dube's broader formulation, under which any fraud that is "designed to induce the complainant to submit" may vitiate consent. Under her formulation, lies about one partner's age, job, salary, fidelity, affection or sexual prowess could convert otherwise consensual sexual activity into assault. Cory's formulation (significant risk of serious bodily harm) "should be interpreted in light of the gravity of the consequences of a conviction for sexual assault and with the aim of avoiding the trivialization of the offence." Does public policy require that the provisions of provincial public health legislation be used to the exclusion of the federal Criminal Code? Justice Cory concluded that it does not, rejecting the arguments of several interveners (amici curiae), the British Columbia Civil Liberties Association, the Canadian AIDS Society, the Persons with AIDS Society of British Columbia, and the Canadian HIV/AIDS Legal Network. They argued that provincial public health initiatives and powers (voluntary testing, education, counselling, support services, and mandatory treatment or testing in some cases) may well prove more effective in controlling the spread of HIV than any federal criminal sanctions. Justice Cory responded that "the criminal law does have a role to play both in deterring those infected with HIV from putting the lives of others at risk and in protecting the public from irresponsible individuals . . . This case provides a classic example of the ineffectiveness of the health scheme. The respondent . . . on three occasions was instructed to advise his partner of [his HIV status] and not to have unprotected sex." The criminal law "reflects society's abhorrence of the self-centered recklessness and the callous insensitivity of the actions of the respondent," and "may well have the desired effect of ensuring that there is disclosure of the risk and that appropriate precautions are taken. . . . It is unlikely that individuals would be deterred from seeking testing because of the possibility of criminal sanctions arising later." And the argument "that criminalizing non-disclosure of HIV status will undermine the educational message that all are responsible for protecting themselves against HIV infection . . . can have little weight. . . . [T]he primary responsibility for making the disclosure must rest upon those who are aware they are infected. . . . That responsibility cannot be lightly shifted to unknowing members of society . . ." The fact that the annual number of new HIV infections in Canada continues to rise "indicate[s] that public education alone has not been successful in modifying the behaviour of individuals at risk of contracting AIDS. . . . [T]he deterrence of the criminal law . . . may well assist . . ." The Supreme Court of Canada's decision is an interpretation of the Criminal Code, a federal statute (rather than the Canadian Charter of Rights and Freedoms, part of the Constitution of Canada), and can therefore be overruled by the federal Parliament. Justice Cory concluded by observing that "it will be for Parliament to determine whether the protection afforded by the [Criminal] Code should be curtailed in the interests of controlling the plague solely by public health measures." Justice McLachlin (joined by Justice Gonthier) disagreed with the conclusion of the other five judges that sec. 265(3)(c) had removed the common law requirements for the vitiation of consent by fraud, and characterized their formulations as "broad extensions to the law of sexual assault." Justice Cory's commercial concept of fraud could apply to "lying about sterility or the effectiveness of birth control" or "lies about the prospect of marriage or false declarations of affection," which "carry the risk of psychological suffering [or] depression . . ." His ad hoc qualifier (significant risk of serious bodily harm) is too uncertain. And his "extension of the criminal law . . . represents a curtailment of individual liberty sufficient to require endorsement by Parliament." Extension of the Criminal Code by judicial interpretation should be incremental and such that "it is required to bring the law into step with the changing needs of society." Justice McLachlin proposed a narrower extension: "deception as to the presence of a sexually transmitted disease giving rise to a serious risk or probability of infecting the complainant." The test would focus on "whether the accused falsely represented to the complainant that he or she is disease-free." (Justice McLachlin's formulation would not seem to catch mere non-disclosure. Cuerrier had falsely stated that he was HIV-negative to one of the complainants.) The majority's reasoning in _Cuerrier_ leaves many questions unanswered. Vaginal intercourse is covered (and a fortiori anal intercourse), but what about oral intercourse? Will use of condoms be sufficient to avoid criminal liability? Which type? What if they are not properly used? And could sec. 273 of the Criminal Code, the offence of aggravated sexual assault (which carries a maximum sentence of life imprisonment), be used? Or is there an assault but not a sexual assault, because the vitiated consent is to injection of HIV-infected semen, rather than to penetration by a penis? _Robert Wintemute_ Note: This Canadian Supreme Court decision may be found on the website maintained by the University of Montreal Law School: Michigan Appeals Court Affirms Conviction Under HIV Disclosure Law On August 28, 1998, Michigan's Court of Appeals upheld that state's AIDS and HIV Disclosure Law. _People v. Jensen_, 1998 WL 549283. M.C.S. 333.5210; MSA 14.15(5210) makes it a crime to fail to inform a sexual partner that one has AIDS or is HIV+ prior to engaging in sexual penetration. The facts, although not set forth in the court's decision, were set forth in detail in a prior decision of the court, _People v. Jensen_, 222 Mich.App. 575, 564 N.W.2d 192 (1997). On October 12, 1990, Brenda Lee Jensen was diagnosed as being HIV+. Subsequently, a probate court declared Jensen legally incapacitated by reason of mental deficiency. As a result, the court appointed a full time guardian for Jensen. In 1994, on three different occasions, Jensen engaged in unprotected sexual intercourse with another resident in the hotel where she resided. After returning to foster care, Jensen admitted to her guardian that she had engaged in unprotected sexual intercourse without informing her partner of her HIV status. Subsequently, Jensen was arrested and convicted of violating Michigan's HIV disclosure law. On appeal, Jensen challenged the constitutionality of the statute, alleging that it is unconstitutionally overbroad because it applies both to consensual and nonconsensual sexual acts, and that it fails to require an intent to cause harm. The Court of Appeals rejected these arguments in their entirety. As to overbreadth, Jensen argued that the statute is overbroad because its application is not limited to consensual sex acts. Jensen essentially argued that an HIV+ rape victim could unfairly be charged under the statute if the victim failed to inform his or her attacker that he or she was HIV+. The court rejected this argument, finding that Jensen failed to establish how the statute sweeps within its inclusion both protected and unprotected conduct. Moreover, the court found that since Jensen had engaged in consensual sex acts, she lacked standing to challenge the constitutionality of the statute as applied to nonconsensual sex acts. Jensen's second argument was that the statute does not require mens rea or intent. In effect, someone who does not understand or appreciate the consequences of his or her acts could be criminally responsible under the law. The court dismissively indicated that such a person would not be criminally responsible under the legal insanity defense statute. Completely lacking from the decision was any meaningful discussion of why that statute would not apply to Jensen, who had previously been declared legally incapacitated by a probate court. In support of imposing strict liability, the court analogized to a recent case where it had upheld the constitutionality of a statute that criminalizes causing death by operating a motor vehicle while intoxicated. In that case, the court found the necessary intent was in the act of drinking alcohol and then operating a motor vehicle. Here, the court found "the requisite intent is inherent in the HIV-infected person's socially and morally irresponsible actions." The court also described the statute as "public welfare legislation," stating: "Failure to disclose not only places the unwitting participant but also that participant's other sexual partners at serious risk of premature death. Indeed, the probable results accompanying nondisclosure are fairly predictable: Death to innocent third parties." Jensen finally argued that the statute violated her right to privacy. The court found that the right to privacy was not an absolute right and the state's need to protect its citizens from HIV outweighed Jensen's privacy right. The repercussions of statutes such as the one discussed herein are troubling. They place the burden of stopping the spread of HIV on those who know that they are already HIV+. Such laws can lull uninfected individuals into a false sense of security, believing that all of their partners are negative because none of them say a word. Statues such as this bring new meaning to the expression "Silence = Death." Moreover, many people are infected with HIV and do not know it. These people would not be subject to this law and could infect plenty of people unless people protect themselves from infection. Statutes such as this could be used to warehouse persons with HIV and AIDS in jails in the interests of "protecting society." Stopping the spread of HIV and AIDS will not come from criminalizing the spread of the disease. We will only stop the disease by educating its potential victims. _Todd V. Lamb_ Social Security Disability Benefits Not Available Automatically for HIV+ NYC Workfare Participant Granting judgment on the pleadings in favor of the government, U.S. District Judge Allen G. Schwartz ruled that an HIV+ unemployed man who works as a kitchen helper in exchange for welfare benefits as required by the Giuliani Administration in New York City is not entitled to receive Social Security Disability benefits solely on account of his HIV status, or on account of depression stemming from that status. _Cortez v. Apfel_, 1998 WL 601005 (S.D.N.Y., Sept. 10). Jose Cortez, now 34 years old, has been working five days a week as a kitchen helper since 1993 in exchange for welfare benefits. On Aug. 26, 1994, he was diagnosed HIV+. On Oct. 26, 1994, he filed an application for Supplemental Security Income benefits, alleging that he had been disabled since Oct. 19, 1994. A series of doctors has examined him pursuant to his application, and all have concluded that he is essentially asymptomatic, that his HIV infection has not imposed any limitations on him in terms of his daily living or ability to perform the physical activities necessary for his job. The only ill-health identified was depression, which doctors attributed to his reaction to his HIV status. Cortez argued that he should be considered disabled on account of his HIV+ status and its consequences. Approving the government's denial of benefits, Schwartz found that there was substantial evidence in the record to support the Social Security Administration's determination that Cortez is not now qualified for benefits, noting that the burden is on the applicant to show that he is physically or mentally incapable of performing his customary work. Schwartz concluded, "Plaintiff has a serious medical condition that could, at some time, affect his ability to engage in work-related activities. Plaintiff may submit a new application for benefits if, and when, his condition worsens." A.S.L. West Virginia Court Struggles With Rights of HIV+ Mother In _Interest of: Micah Alyn R._, 1998 WL 327895 (W.Va. June 22), the Supreme Court of Appeals of West Virginia gave an AIDS-stricken mom a second chance with her baby boy under an appeal from a final order of the Circuit Court of Raleigh. The court reversed the circuit court's final order terminating parental rights, remanded, and gave the instruction that the lower court should find a plan of visitation that would accommodate the mother, child, and foster parents (who would be allowed to adopt at an appropriate time in the future). In July 1996, Ada R., Micah's mother, placed him in foster care by filing a voluntary placement agreement because she had been diagnosed with AIDS and he was HIV+. Though her son was placed in the care of the Department of Health and Human Resources, Ada visited him frequently. During the next few months, several hearings were held to review the voluntary placement. Ada wanted to give Micah up for adoption, so in March 1997 a supplemental hearing was filed to terminate the parental rights of the father, Hansel R. Later, Ada changed her mind and decided to pursue full custody. Since Hansel never appeared to contest the ruling, his parental rights were terminated in July. That same day, the Department sought to terminate Ada's parental rights on the evidence given by a social services case worker. The case worker testified that Ada had been abusive on several occasions and that she had failed to administer her son's HIV medication regularly and once, gave him the wrong dosage. The stress of Ada's disease caused these lapses in care as she was often tired, dizzy, or sleeping. However, the case worker also testified that Ada had shown improvement over the last several months. In due course, the circuit court terminated Ada's parental rights, finding that Micah was "abused" and "neglected." Although Justice Maynard, writing for the Supreme Court of Appeals, found that the circuit court had not erred in its finding that Micah was abused and neglected with "no reasonable likelihood that the conditions of the abuse and neglect could be corrected in the future," Maynard noted that "it appears that the principal reason that the circuit court terminated Ada R.'s parental rights is the tragic fact that she is suffering from a terminal illness." While the court did not condone Ada's behavior, it decided not to exacerbate the tragedy by terminating her parental rights. It also recognized the sadness of the situation faced by terminally-ill single-parents, having to do what is best for the child while, at the same time, being confronted with the possibility of having the child that they love taken away. This forward-thinking court also determined that there were only two guardianship options open to terminally-ill parents under West Virginia law: traditional guardianship, which relinquishes parental authority while the parent is still living, and testamentary guardianship, which only becomes effective upon the parentūs death. Justice Maynard suggested that a third option, standby guardianship, which would see to the needs of the child without relinquishing parental power, would be more accommodating. However, this option is not yet available in West Virginia, so it is not open to Ada. Fortunately, in this case, young Micah had foster parents who were willing to adopt and to take on the enormous responsibilities of a sick child. However, as is the case with most adoptive parents, they needed assurances that the emotional and financial support that they were investing in the child were not wasted. However, given the length of time that the foster parents already had with Micah, W.VA. Code 49-2-14 (1995) offered them some protection as their relationship could not be terminated save for the best interests of the child coupled with one of six other situations. With sympathetic courts, viable options can be created to take into account the needs of the terminally-ill and their offspring. This sad situation is one that warrants every available avenue. West Virginia's Supreme Court of Appeals should be commended for having the heart and sensitivity to deal with this age-old tragedy. _Leo L. Wong_ Idaho Appeals Court Reverses HIV Testing Order in Biting Case Finding that expert testimony presented to the trial court did not support an order that a criminal defendant be tested for HIV and HBV, the Idaho Court of Appeals reversed the order requiring that a man who bit a police officer be tested. _State v. Johnson_, 1998 WL 652651 (Sept. 24). Unfortunately, the opinion by Judge Perry says little about the circumstances under which the biting took place, merely reciting that defendant James J. Johnson "bit a police officer on the leg. The officer was wearing duty pants with long johns underneath." Elsewhere in the opinion, Perry notes that the officer's skin was not broken and there was no evidence that the clothing was torn or punctured where the bit occurred. Johnson was charged with battery on a police officer, and the magistrate ordered that he submit to HIV and HBV testing under Idaho Code sec. 39-604(4), which provides: "All persons who are charged with any crime in which body fluid as defined in this chapter [which includes saliva] has likely been transmitted to another shall be tested for the presence of HIV antibodies or antigens and for hepatitis B virus." There were two witnesses at the hearing, the police officer and Pam Marcum, a forensic scientist with the Department of Law Enforcement. Marcum's testimony was equivocal; at some points, she said it was likely that body fluid was transmitted but that the risk of infection was quite low, while at other points she backed away from quantifying the likelihood that transmission took place. The state argued that, regardless of Marcum's testimony, the magistrate would be justified in concluding as a matter of common sense that the statutory requirement had been met. The magistrate's order was upheld by the district court, and Johnson appealed. Perry first rejected the state's argument that "common knowledge" supported the magistrate's order, pointing out that the state itself had presented an expert witness, and that the court's rule on appeal was to "decide whether the expert's testimony provided sufficient evidence that it was likely that body fluids were transmitted when Johnson bit the officer's leg." As to that, Perry found the expert testimony too equivocal to support the order. "Although Marcum testified at times that it was likely, she failed to support those statements with meaningful reasoning or analysis. In fact, she said on different occasions that she was unqualified to respond and that nobody would know the answer. Marcum finally testified that it was likely that body fluid could be transferred, but `[n]ot more likely.'" Perry concluded that the evidence Marcum provided was "not substantial or competent," and thus that the order must be reversed. Concurring specially, Judge Schwartzman suggested that the trial court could have achieved the same result of testing by making such testing a condition of probation after Johnson pled guilty to the underlying charge, as an exercise of discretion to supervise probation. A.S.L. Florida Appeals Court Revives Model's Action Against Viatical Company for Use of Photograph in Gay-Oriented Advertisements A male model whose photograph was allegedly used without authorization in advertisements encouraging gay men with AIDS to viaticate their life insurance policies has stated a cause of action under a Florida privacy statute as well as certain common law tort claims. _Facchina v. Mutual Benefits Corp._, 1998 WL 646663 (Fla. App., 4th Dist., Sept. 23). Reversing a decision of the Broward County Circuit Court, the Court of Appeal found that allowing the action to go forward did not violate the judge-made economic loss rule governing mixed contract/tort claims under Florida common law. Paul V. Facchina, Jr., is a male model who made a contract with Mutual Benefits Corp., a subsidiary of Viatical Benefits Foundation, allowing the use of his photograph in advertising. The contract provided, in pertinent part: "Said advertisement shall be limited to the sole purpose of purchasing life insurance policies and its related interests." (It was clearly not drafted by a grammarian!). Facchina later discovered that his photograph was appearing in advertisements in gay magazines, encouraging gay men with AIDS to viaticate their life insurance policies with Viatical Benefits Foundation; from the context, viewers of the advertisement might conclude that the person depicted was a gay man with AIDS. Facchina sued MBC for the unauthorized use of his photos, alleging that he was being falsely portrayed as a "poster boy" for "homosexuals dying from AIDS" in a major advertising campaign. He alleged that this depiction was potentially harmful to his modeling career, and had actually caused him severe emotional distress manifesting in physical symptoms. Facchina claimed a violation of Fla. Stat. sec. 540.08, which requires express written or oral consent before a person's likeness may be used by another for commercial purposes. He also asserted claims of defamation, fraud, invasion of privacy, and sought injunctive relief against further use of the photograph in this way. Defendants moved for dismissal, claiming that under the economic loss rule, Facchina would be limited to a suit for breach of contract and could not obtain relief under the statute or common law tort claims. The trial judge agreed with the defendants. Reversing that decision in an opinion by Judge Farmer, the Court of Appeal held that the judge-made economic loss rule (ELR) could not be used to block a properly pled suit under the Florida privacy statute. Furthermore, the court rejected the contention that ELR would also block the defamation and common law invasion of privacy claims. "By contracting with defendant to allow the use of his likeness in specified advertising, plaintiff could hardly be expected to provide for remedies for a later possible defamatory falsehood concerning him," wrote Farmer. "It would be unrealistic to hold potential defamation claimants to a duty to provide for remedies by contract with potential defamers. The court also found Florida precedents supporting the plaintiff's contention that an independent tort of invasion of privacy exists in Florida, and that the existence of a contract governing use of the photos "would not necessarily immunize the publisher . . . from damages for invasion of privacy. If a generally authorized publication were made in such a manner that the publisher should reasonably have known would offend the sensibilities of a normal person, then as a preliminary legal matter the claim would state a cause of action," Farmer wrote. "A person may have a contractual right to publish the likeness of another without breaching a contract giving him the right to publish but may still abuse that right and publish in such a manner as to violate the subject's person, privacy interests. . . Under the unique circumstances of this case, we think that it is not realistic to anticipate that an authorized publication for advertising purposes may be used as it was here. Therefore we hold that the ELR does not alone bar the claim." In footnotes, the court stressed that it was not ruling as to the merits of the claim, or as to other possible defenses that might be raised, since the appeal was concerned solely with the trial judge's decision to dismiss various claims based on the ELR. A.S.L. Court Finds No Libel in False Publication About Dentist's Practice The publication of an advertisement stating that a dentist specialized in treating patients with HIV was not libel per se, the Connecticut Superior Court held. _Sweet v. The Utter Co._, 1998 WL 551967 (Aug. 20). Dentist James Sweet sued The Utter Co., a newspaper publisher, for its publication of an advertisement identifying him as specializing in treating patients with HIV. Judge Martin granted the defendant's motion for summary judgment on plaintiff's claim of libel per se, finding that the alleged libelous statements did not charge Dr. Sweet with a crime or injure him in his profession. Thus, Dr. Sweet would have to show actual damages in order to win an action for libel. _Dirk Williams_ Connecticut Superior Court Delimits Discovery of HIV Status An HIV+ plaintiff sued his insurer for canceling his disability coverage upon his submission of a claim. While the insurer's alleged action breaches the written terms of the policy, the plaintiff argued violation of the Connecticut Unfair Trade Practices Act (CUTPA) and the Connecticut Unfair Insurance Practices Act (CUIPA). As a PWA, the plaintiff successfully sealed the file and was allowed to proceed under the pseudonym Michael Doe. The question before the court in _Doe v. Protective Life Insurance Co._, 1998 WL 568326 (Conn. Super., Aug. 26), was the terms of a protective order sought by Doe to limit dissemination of AIDS-related information in discovery. Connecticut's General Statutes sec. 19a-583, which the court compares to New York Public Health Law sec. 2782, requires limiting disclosure to protect the HIV+ party from discrimination and to protect the party's privacy interest, as well as the public's interest in controlling the spread of AIDS through confidential testing and treatment. The defendant objected to the protective order proposed by Doe as overly broad, thus unfairly hampering its ability to defend. The court agreed that Doe's draft was "far more restrictive than is necessary to accomplish the purposes of the statutory confidentiality provisions," and rewrote the order in remedy. The order as written by the court omits some redundancies and other legalese from Doe's draft, however both provide that: all depositions, interrogatories, and other documents in this matter will be filed and kept under seal and will be made available for destruction at the end of the litigation; no one connected with the litigation may disclose the plaintiff's HIV status except on permission of the court or plaintiff and then only on notice to the plaintiff and only to recipients who have signed a non-disclosure agreement. Doe's proposed order would have further required that interrogatories to be propounded first be submitted to the court for approval and veiled deposition" wherein the physical characteristics and appearance of the plaintiff are not disclosed. Doe's draft also prescribed contempt as penalty for breach of the non-disclosure agreement. The court refined this down so that plaintiff can be deposed only before persons in compliance with the non-disclosure order. _Mark Major_ Maine Court Says Mother Should Determine Treatment Course for Son Maine District Court Judge Douglas A. Clapp rejected an attempt by the state to take away from Valerie Emerson the custody of her son, Nikolas, age 4, in a dispute over AIDS treatment. _In re Nikolas Emerson_, No. NEW-98-CD-17 (Maine Dist. Ct., Penobscot County, Sept. 19). Emerson, who is HIV+, has already lost another child to AIDS. Because her child suffered greatly from the side-effects of AIDS medications, she decided that she did not want to subject Nikolas, who is also HIV+, to the same regimen. The state argued that her refusal to allow him to be treated constitutes neglect sufficient to justify termination of custody, and placement with another relative who would be willing to cooperate in Nikolas's treatment. Judge Clapp found Emerson's refusal to be "rational and reasoned. . . The monotherapy [AZT treatment], which the best doctors told Ms. Emerson was appropriate for her daughter many months ago, failed fatally and is now not recommended by the same experts. Instead, they have recommended a more aggressive and powerful therapy. They may be right in this advice. Current statistics can be interpreted that they may also just as likely be wrong. If so, they will move on to better and more informed attempts to cure this as yet incurable disease, but Ms. Emerson will bury another child. . . The state of Maine is now in no position to tell her in the face of her unique experience that she is wrong in her current judgment to wait for better and more reliable treatment methods." In light of the current state of medicine on AIDS, Clapp concluded that "it can only reasonably be left up to the parent to make an informed choice in this regard." _AIDS Policy & Law_, Oct. 2, 1998, at 1, 4-5. A.S.L. AIDS Law & Society Notes The international AIDS community lost a towering leader for the human rights of people with HIV when Dr. Jonathan Mann died in the crash of Swissair Flight 111. Mann had led the World Health Organization's AIDS programs from 1986 until 1990, and had continued to play a leading role in AIDS policy discussion at Harvard University until last year. He had recently become dean of Allegheny University of the Health Science's School of Public Health in Philadelphia. We recently noted a series of symposia on AIDS policy edited by Dr. Mann. Mann's wife, Mary-Lou Clements- Mann, a prominent AIDS medical researcher, also died in the crash. In _New York State Bar Association v. Reno_, the U.S. District Court for the Northern District of N.Y. (McAvoy, J.) ruled September 14 that a federal statute making it a crime for anyone (including an attorney) to counsel an individual on disposing of assets in order to qualify for Medicaid benefits is unconstitutional. The full text of the decision was published in the New York Law Journal on Sept. 28, p. 25, col.3. Delta Air Lines can be held liable for slander and libel for secretly maintaining a list of employees suspected of being HIV+, according to an unpublished California Court of Appeal ruling in _Baldanza v. Delta Air Lines_, No. A075614 (Cal.App. 1st Dist., Aug. 7, 1998)(reported in _Daily Journal_, Aug. 11. Delta claimed the list was needed to keep track of employees experiencing AIDS- related illness and who might thus require job assistance, but the court found that the surreptitious nature of the list cast doubt upon that explanation. Justice Michael J. Phelan wrote, "If Delta had a bona fide interest in providing effective, reasonable accommodation to the employees on the list, it would have to communicate with those employees about that matter." The list came to light when an HIV- sales agent learned that he might be on some list of people with HIV and inquired further. The Associated Press reported Sept. 2 that Phillip Carter, a gay HIV+ man from Columbus, Mississippi, was convicted by a jury of violating a quarantine order by having unprotected sex with various partners without disclosing his HIV status. Carter was sentenced to five years in prison. An HIV+ man who had unprotected sex with his step-daughter was wrongly convicted of "attempted extreme indifference murder," according to the Colorado Court of Appeals in _State v. Perez_, No. 96CA1587 (Sept. 3, 1998). The court found that this particular crime was concerned with indiscriminate killings, and that the facts of the case did not fit this profile. However, the court upheld Perez's conviction on two others counts, both involving sexual assault on a child. _AIDS Policy & Law_, Oct. 2, 1998, at 2. The U.S. House of Representatives passed the Ricky Ray Compensation Bill this summer, authorizing compensation of $100,000 to each of 7,200 hemophiliacs who contracted AIDS during the early years of the epidemic at a time when blood supplies used to make clotting medication were not being safeguarded. A companion bill in the Senate was amended in committee by Sen. James Jeffords of Vermont, who argued that compensation should also be extended to the roughly 10,000 people who were infected in blood transfusions prior to the implementation of HIV screening of donated blood. There is some question whether the full Senate will approve the amended bill, which exceeds in expense the House bill by $1.7 billion. _Syracuse Post-Standard_, Sept. 24; _Baltimore Sun_, Sept. 24. A John Doe plaintiff in San Francisco has settled a federal discrimination suit against Wahlgreen Drug Stores, based on an incident in the Wahlgreen's on Castro Street where the pharmacist yelled at the plaintiff, revealing his HIV status to other customers, resulting in the plaintiff going several days without medicine to control his HIV-related diarrhea. The _Bay Area Reporter_ had published a story about the case when it was first filed in 1997. U.S. Bankruptcy Judge Dennis D. Montali has ordered Alan Louie, in the context of a Chapter 7 bankruptcy action pending in San Francisco, to pay $25,000 to his ex-lover for exposing him to HIV through unprotected sex. The case originated in San Francisco Superior Court, but moved to the bankruptcy court when Louie filed his petition. The judge found that Louie was liable for sexual battery, because he lied about his HIV status, thus vitiating consent to sex by his ex-lover. The damages were to cover pain and suffering for the six-month period from when the lover learned of the exposure until he received a negative HIV test result. _In re Alan Louie_, No. 97-3044DDM (U.S. Bankruptcy Ct., N.D.Cal., Aug. 3, 1998). _AIDS Policy & Law_, Sept. 18, 1998, at 1, 7. The Illinois Public Health Department has reportedly abandoned its intention to require names-reporting of persons testing HIV+ in that state, and will instead adopt a unique identifiers reporting scheme for a two-year trial period. _Chicago Tribune_, Sept. 27. * * * In California, the legislature passed a bill establishing a unique identifiers system for reporting positive HIV tests to state health authorities. At press time, Gov. Wilson had not announced whether he would sign it, let it become law without his signature, or veto it. _Los Angeles Times_, Aug. 29. Wilson is also pondering a bill passed by the legislature on Aug. 19 that would make it a felony to intentionally infect someone with HIV through unprotected vaginal or anal intercourse, subject to a penalty of 3 to 8 years in prison. _AIDS Policy & Law_, Sept. 4, at 1. Dennis and Paulette Haynes, an HIV+ Oregon couple, lost their infant son to state custody on July 22, 1997, shortly after his birth, when a doctor raised doubts that they would be capable of providing adequate care for him. The baby, who is also HIV+, has been living in foster care, and the state is seeking termination of parental rights preparatory to placing the boy for adoption. The Haynes's, who are both doing well on protease cocktails, are trying to regain custody of their son, but Oregon state agency officials argue that a permanent adoption would be in the child's best interest, contending that the Haynes's lack parenting skills and would not provide a "suitable and stable living situation." The Haynes are separated, but hope to get back together to raise their son. _Columbian_, Sept. 27. A.S.L. PUBLICATIONS NOTED LESBIAN & GAY & RELATED LEGAL ISSUES: Baker, James P., _Equal Benefits for Equal Work? The Law of Domestic Partner Benefits_, 14 The Labor Lawyer 23 (Summer 1998). Becker, Mary, _Women, Morality, and Sexual Orientation_, 8 UCLA Women's L.J. 165 (Spring/Summer 1998). Butler, Andrew, _Same-Sex Marriage and Freedom from Discrimination in New Zealand_, Pub. L., Autumn 1998, 396. Coolidge, David Orgon, _Playing the_ Loving_ Card: Same-Sex Marriage and the Politics of Analogy_, 12 BYU J. Pub. L. 201 (1998) (from anti-same-sex marriage symposium). Coombs, Mary, _Sexual Dis-Orientation: Transgendered People and Same-Sex Marriage_, 8 UCLA Women's L.J. 219 (Spring/Summer 1998). DeCou, Kate, _U.S. Social Policy on Prostitution: Whose Welfare is Served?_, 24 N. Eng. J. Crim. & Civ. Confinement 427 (Summer 1998). Duncan, Richard F., _From_ Loving_ to _Romer_: Homosexual Marriage and Moral Discernment_, 12 BYU J. Pub. L. 239 (1998) (from anti- same-sex marriage symposium). Durkin, Jennifer, _Queer Studies I: An Examination of the First Eleven Studies of Sexual Orientation Bias by the Legal Profession_, 8 UCLA Women's L.J. 343 (Spring/Summer 1998). Eekelaar, John, _Registered Same-Sex Partnerships and Marriages -- A Statistical Comparison_, 28 Fam. L. [U.K.] 561 (September 1998). Fisk, Catherine L., _ERISA Preemption of State and Local Laws on Domestic Partnership and Sexual Orientation Discrimination in Employment_, 8 UCLA Women's L.J. 267 (Spring/Summer 1998). Florescue, Leonard G., _Rights of Non-Biological Parents_, New York Law Journal, September 14, 1998, p. 3 (argues for allowing "psychological parents" to seek visitation/custody). Kirby, Hon. Michael, _Homosexual Law Reform -- The Road of Enlightenment_, 23 Commonwealth L. Bull. 565 (1997) (Text of speech delivered to Sydney, Australia, Gay & Lesbian Business Association; Justice Kirby sits on Australia's Supreme Court). Kohm, Lynn Marie, _Liberty and Marriage --_ Baehr_ and Beyond: Due Process in 1998_, 12 BYU J. Pub. L. 253 (1998) (from anti-same-sex marriage symposium). Mullender, Richard, _Privacy, Paedophilia and the European Convention on Human Rights: A Deontological Approach_, Pub. L., Autumn 1998, 384. O'Brien, Tim, _The Rehnquist Court: Holding Steady on Freedom of Speech_, 22 Nova L. Rev. 711 (Spring 1998). Rubenstein, William B., _Queer Studies II: Some Reflections on the Study of Sexual Orientation Bias in the Legal Profession_, 8 UCLA Women's L.J. 379 (Spring/Summer 1998). Schultz, David, _Scalia on Democratic Decision Making and Long Standing Traditions: How Rights Always Lose_, 31 Suffolk U. L. Rev. 319 (1997). Sekulow, Jay Alan, and John Tuskey, _Sex and Sodomy and Apples and Oranges -- Does the Constitution Require States to Grant a Right to Do the Impossible_, 12 BYU J. Pub. L. 309 (1998) (from anti-same- sex marriage symposium). Spaht, Katherine Shaw, _Beyond_ Baehr_: Strengthening the Definition of Marriage_, 12 BYU J. Pub. L. 277 (1998) (from anti- same-sex marriage symposium). Strasser, Mark, _Sodomy, Adultery, and Same-Sex Marriage: On Legal Analysis and Fundamental Interests_, 8 UCLA Women's L.J. 313 (Spring/Summer 1998). Sullivan, Kathleen M., _The Jurisprudence of the Rehnquist Court_, 22 Nova L. Rev. 741 (Spring 1998). Zavez, Maryann, _Child Abuse Registries and Juveniles: An Overview and Suggestions for Change in Legislative and Agency Direction_, 22 Seton Hall Legis. J. 405 (1998). _Student Notes & Comments:_ Barnes, Anita C., _The Sexual Continuum: Transsexual Prisoners_, 24 N. Eng. J. Crim. & Civ. Confinement 599 (Summer 1998). Connor, Tim, _Community Discrimination Law: No Right to Equal Treatment in Employment in Respect of Same Sex Partner_, 23 European L. Rev. 378 (Aug. 1998). Cox, Jeffrey L. _Defining a New Medium of Communication Under the First Amendment: The Supreme Court Tackles Speech on the Internet in_ Reno v. American Civil Liberties Union, 22 Nova L. Rev. 763 (Spring 1998). Ewing, Landra, _When Going to School Becomes an Act of Courage: Students Need Protection From Violence_, 36 Brandeis J. Fam. L. 627 (1997-98). Gough, Allison Dawn, _The First Amendment Fails to Protect Lesbian Love in the Eleventh Circuit:_ Shahar v. Bowers_, 114 F.3d 1097 (11th Cir. 1997)_, 23 U. Dayton L. Rev. 371 (Winter 1998). Hilbig, Todd C., _Will New York Recognize Same-Sex Marriage?: An Analysis of the Conflict-of-Laws' Public Policy Exception_, 12 BYU J. Pub. L. 333 (1998) (from anti-same-sex marriage symposium). Lewis, Kevin H., _Equal Protection in the Wake of_ Romer v. Evans_: Implications for the Defense of Marriage Act and Other Laws_, 49 Hastings L.J. 175 (Nov. 1997). Longmeyer, Philip M., _Look on the Bright Side: The Prospect of Modifying or Terminating Maintenance Obligations Upon the Homosexual Cohabitation of Your Former Spouse_, 36 Brandeis J. Fam. L. 53 (1997-98). Norvell, Louis, _Constitutional Law: Defining the Boundaries of Protected Intimate Associations_, 50 Fla. L. Rev. 233 (Jan. 1998). Peterson, James, _Behind the Curtain of Privacy: How Obscenity Law Inhibits the Expression of Ideas About Sex and Gender_, 1998 Wis. L. Rev. 625. Putignano, Pat P., _Why DOMA and Not ENDA?: A Review of Recent Federal Hostility to Expand Employment Rights and Protection Beyond Traditional Notions_, 15 Hofstra Lab. & Emp. L.J. 177 (Fall 1997). Recent Developments, _Congress Fumbles With the Internet:_ Reno v. ACLU_, 117 S.Ct. 2329 (1997)_, 21 Harv. J. L. & Pub. Pol. 637 (Spring 1998). Snodgrass, Gwendolyn L., _Creating Family Without Marriage: The Advantages and Disadvantages of Adult Adoption Among Gay and Lesbian Partners_, 36 Brandeis J. Fam. L. 75 (1997-98). Toussaint, Sherri L., _Defense of Marriage Act: Isn't It Ironic. . . Don't You Think? A Little Too Ironic?_, 76 Neb. L. Rev. 924 (1997). _Specially Noted:_ Professor Ruthann Robson of CUNY Law School in New York City has published _Sappho Goes to Law School: Lesbian Legal Theory_. The Columbia University Press publication was issued in August 1998. ISBN 0-231-10561-4. To order direct from the publisher, call 1- 800-944-8648. An on-line check showed that this book is available through various on-line bookstores. Lisa Keen, legal columnist for The Washington Blade and winner of an American Bar Association award for her reporting on Colorado Amendment 2, and Suzanne Goldberg, a staff attorney at Lambda Legal Defense & Education Fund, who participated in the Amendment 2 litigation, have collaborated on a book about the case, titled _Strangers to the Law: Gay People on Trial_, which has just been published by Michigan University Press. Symposium, _Queer Matters: Emerging Issues in Sexual Orientation Law_, 8 UCLA Women's L.J. No. 2 (Spring/Summer 1998)(individual articles noted above). Symposium, _Law and the Politics of Marriage: Loving v. Virginia After Thirty Years_, 12 BYU J. Pub. L. NO. 2 (1998) (symposium on the same-sex marriage controversy - as one might expect from Brigham Young University, a Mormon school, this is an anti-same-sex marriage symposium, with final comments from ultra-anti-gay conservative lawyer Jay Sekulow - individual articles noted above). AIDS & RELATED LEGAL ISSUES: Collins, J. Peter, and Montgomery Lee Effinger, _Courts Face a Tough Balancing Act in AIDS Misdiagnosis Claims_, N.Y.L.J., August 31, 1998, p.1. De Groot, Anne S., _Setting the Standard for Care: HIV Risk Exposures and Clinical Manifestations of HIV in Incarcerated Massachusetts Women_, 24 N. Eng. J. Crim. & Civ. Confinement 353 (Summer 1998). Gerish, Jeffrey, _Abandoning Congressional Intent: Modern-Day Applications of the ADA_, 1997 Detroit Coll. L. at M.S.U. L. Rev. 805. Lynch, Charles B., _The Americans With Disabilities Act and Disability Benefit Plans_, 22 Seton Hall Legis. J. 561 (1998). Merjian, Armen H., _AIDS, Welfare, and Title II of the Americans With Disabilities Act_, 16 Yale L. & Policy Rev. 373 (1998). _Student Notes & Comments:_ Aldenberg, William B., _Bursting at the Seams: An Analysis of Compassionate-Release Statutes and the Current Problem of HIV and AIDS in U.S. Prisons and Jails_, 24 N. Eng. J. Crim. & Civ. Confinement 541 (Summer 1998). Barta, Peter A., _Lambskin Borders: An Argument for the Abolition of the United States Exclusion of HIV-Positive Immigrants_, 12 Georgetown Imm. L. J. 323 (Winter 1998). Fisk, Scott A., _The Last Best Place to Die: Physician-Assisted Suicide and Montana's Constitutional Right to Personal Autonomy Privacy_, 59 Montana L. Rev. 301 (Summer 1998). Greenfield, Erika L., _Maintaining Employees' Privacy of HIV and AIDS Information in the Workplace_, 15 Hofstra Lab. & Emp. L.J. 277 (Fall 1997). Grill, Matthew Warren, _Recovery for Emotional Distress Due to Fear of AIDS: Exposing AIDSPhobia in Alabama_, 49 Alabama L. Rev. 1009 (Spring 1998). Mitchell, Kelly Lyn, _Physician-Assisted Suicide: A Survey of the Issues Surrounding Legalization_, 74 N. Dak. L. Rev. 341 (1998). Storch, Natalie Palmer Jones, _The Standard of Employer Liability Under the Americans With Disabilities Act of 1990_, 66 U. Cin. L. Rev. 931 (Spring 1998). Testa, Nicole, _Sentenced to Life? An Analysis of the United States Supreme Court's Decision in_ Washington v. Glucksberg, 22 Nova L. Rev. 821 (Spring 1998). Vande Walle, John M., _In the Eye of the Beholder: Issues of Distributive and Corrective Justice in the ADA's Employment Protection for Persons Regarded as Disabled_, 73 Chicago-Kent L. Rev. 897 (1998). EDITOR'S NOTE: All points of view expressed in _Lesbian/Gay Law Notes_ are those of identified writers, and are not official positions of the Lesbian & Gay Law Association of Greater New York or the LeGaL Foundation, Inc. All comments in _Publications Noted_ are attributable to the Editor. Correspondence pertinent to issues covered in _Lesbian/Gay Law Notes_ is welcome and will be published subject to editing. Please address correspondence to the Editor or send via e-mail.