Published January, 1990

Scroggins v. State, 401 S.E.2d 13 (Ga. Ct. App. 1990)

Scroggins was convicted of aggravated assault with intent to murder after he allegedly bit a police officer during an arrest. At a hospital after the encounter, Scroggins told a nurse that he is HIV positive.

On appeal, the Georgia Court of Appeals upheld Scroggins's conviction finding that the State provided enough evidence for a jury to reasonably have concluded that Scroggins assaulted the police officer with the intent to murder him. The court found that it was not necessary for the State to prove that Scroggins's bite or saliva constituted a "deadly weapon" or was likely to inflict serious harm.The State needed only to provide evidence of Scroggins's intent to murder, not that the act was likely to result in death or serious injury. The court found that Scroggins's attempt to bring up saliva in his mouth and the fact that he laughed when the police officer asked about his HIV status formed a reasonable basis for the jury's finding that the State had proven that Scroggins attempted to kill the officer.

Cases such as this, in which a defendant is charged with assault in the course of an arrest, are particularly problematic for the HIV-positive individual; frequently in this context, assault charges are generated as a cover for excessive force on the part of arresting officers, and typically the prevailing version of events relies exclusively on the testimony of the police. In scenarios when the actual victim of an assault faces serious charges as a cover for that assault, it is especially disturbing that convictions then rest on conduct which poses little or no risk of any harm to the complaining officer.

There is no sound evidence that HIV can be transmitted through saliva or by spitting blood at someone. According to the CDC, there is only a "remote risk" that HIV can be transmitted via a bite. Even if the evidence supports allegation of a bite, the HIV-positive person faces a felony conviction for an act that normally would be handled as a misdemeanor when committed by an individual who has not tested positive for HIV.