tary, Gary Bauer, who was also Reagan’s advisor on domestic policy is-
sues, developed a response in keeping with the religious support base of
the New Right. Their approach took every opportunity to reinforce the
supremacy of heterosexual marriage and traditional gender roles.104 To
the notion of the “innocent victim” of AIDS— the HIV- infected blood
transfusion recipient, for example— Bennett and Bauer set up a rhetori-
cal counterpoint, the deserving person with AIDS. This idea was artic-
ulated in the writing of John Klenk, one of Bauer’s former aides: “The
most common cause of the spread of AIDS is irresponsible sexual be-
havior. Anyone who engages in such behavior endangers him (her) self,
his (her) partner, his (her) children, and other innocent victims— not to
101. Boorstin, “Criminal and Civil Litigation,” A1.
102. Richard Lacayo, “Assault with a Deadly Virus,” Time, July 20, 1987, 57; Robert
Steinbrook, “The Times Poll: 42% Would Limit Civil Rights in AIDS Battle,” Los Ange-
les Times, July 31, 1987, B1.
103. David L. Kirp, “Politics Is Latest AIDS Sideshow,” Lodi [CA] News- Sentinel, July 9, 1987, 4; https:// news .google .com/ newspapers ?id = BLM0AAAAIBAJ & sjid = YiE GA A A A I B
AJ & dq = aids %20kirp & pg = 3276 %2C926014.
104. Brier, Infectious Ideas, 87.
Giving a Face to the Epidemic 231
speak of causing enormous medical costs to taxpayers and the public.
Society must show its disapproval for such behavior.”105
It appears that part of Klenk’s remit was to assemble documented
cases of alleged deliberate transmission. In June 1987, he sent a note to
Bauer that listed a compendium of “thirteen ‘horror stories’— cases of
malicious or irresponsible behavior threatening the spread of AIDS.”
These included “an Army private who knew he was infected yet had un-
protected sex with three soldiers (both sexes), one of them his fi ancee”;
“a man with full- blown AIDS” who had raped a South Carolina woman;
a young bisexual man in San Diego who “boasted he’d infect as many co-
eds as he could”; several men who had bitten police offi cers; a “parolee
who announced he intended to infect as many prostitutes as possible,
‘just to get even’”; and a “civil rights activist who threatened ‘blood ter-
rorism’ if enough money wasn’t provided for AIDS research.”106 Bauer’s
fi les grew with other examples, such as of prostitutes returning to work
after a diagnosis, and with references to sworn testimony that apparently
demonstrated that individuals were transmitting their infection with
knowledge and intention. According to one California physician who
raised controversy by calling for the quarantine of HIV- infected people,
“there exists a population of persons who have been infected and have
the misguided opinion that the only means by which this disease will be
cured is if it becomes so widespread that the government has to cure it.
Their goal,” he argued, “is to continue spreading it as fast as individually
possible to reach that end.”107
Also among Gary Bauer’s archived fi les is a copy of the October 1987
cover story of California magazine: the serialized “Patient Zero” story
sold by St. Martin’s Press as part of the book’s wildly successful promo-
tional campaign.108 The timing ensured that the fi gure of the deliberate,
malicious AIDS spreader, which had been forming in a somewhat incho-
105. Quoted in ibid., 92. See also Grover, “AIDS: Keywords,” 28– 30.
106. John Klenk to Gary Bauer, with attachment, June 10, 1987, folder: AIDS VII
(4 of 5), box OA 19222, Gary Bauer Files, Ronald Reagan Presidential Library, Simi Val-
ley, CA (hereafter cited as Bauer Files). It is worth noting that Theresa Crenshaw, a San
Diego physician, was the source for the stories about the young man from San Diego and
one instance of a man who bit a police offi cer. She would soon take up a position as a com-
missioner on the presidential commission investigating the HIV epidemic.
107. William T. O’Connor, “AIDS: The Alarming Reality,” report, June 7, 1987, 21,
folder: AIDS (2 of 3), box OA 19222, Bauer Files.
108. “Patient Zero: The Man Who Brought AIDS to California,” photocopy of Octo-
232
chapter 4
ate manner earlier in 1987 and which built on previously existing fears
of people with AIDS, took root in the public imagination. Perhaps more
signifi cantly, this fi gure now had a name and, following the 60 Minutes
television news special seen by millions of viewers in November 1987,
a nationally broadcast face. It became possible to refer to Dugas’s ex-
ample as shorthand for the type of criminally irresponsible person from
whom the public needed protection. In addition, this historical case gave
lawyers a powerful example of a malicious disease spreader that allowed
them to circumvent the diffi culties that they would have faced in terms
of establishing malice and an intent to infect for a similar case in a court
of law.
During the fall of 1987 and in early 1988, both the presidential com-
mission in the United States and the Royal Society in Canada were de-
vising guidelines to deal with the ethical and legal challenges posed by
AIDS, in the absence of national- level response frameworks in each
country. The background papers to the Canadian Royal Society’s report
noted, “We have heard anecdotal evidence of a small minority of those
infected with HIV who feel doomed and, not caring about the risks to
other [ sic], are concerned primarily with their own pleasure.” The au-
thors went on to emphasize, however, that the largest risk of HIV trans-
mission came from voluntary behavior between adults who knew how
HIV was transmitted.109
In the United States, Dugas’s example was adopted in legal texts with
remarkable speed. By November 1987, the same month that the book
went into wide release, advocates of tough penalties for HIV transmis-
sion were mobilizing the “Patient Zero” story. The State Factor, a conser-
vative legal publication put out by the American Legislative Exchange
Council lobby group, featured Dugas’s interaction with Selma Dritz, the
San Francisco public health offi cial, in its December issue. The article
argued that criminal laws were needed to deal with this “small minority
of AIDS victims” who “either are intent on infecting others— or simply
do not care enough to change their sexual practices.”110
ber 1987 California Magazine cover and article, folder: AIDS VII (2 of 5), box OA 19222, Bauer Files.
109. Martha Mackinnon, Keel Cottrelle, and Horace Krever, “Legal and Social As-
pects of AIDS in Canada,” AIDS: A Perspective for Canadians: Background Papers, ed.
Royal Society of Canada (Ottawa: Royal Society of Canada, 1988), 354– 55.
110. Douglas J. Besharov, “AIDS and the Criminal Law: Needed Reform,” State Fac-
tor 13, no. 8 (1987): 1.
Giving a Face to the Epidemic 233
In this period, legal scholars arguing for tougher sanctions often used
the “Patient Zero” story to strengthen their case. In 1989, one author,
an associate law professor at the Catholic University of America, cited
Shilts’s work repeatedly and focused on the journalist’s description of
Dugas. There was some doubt, the author admitted, following Shilts,
about whether Dugas was the fi rst person to bring HIV to the United
States. “But there is no debate as to Gaetan’s conduct right up to the
moment of his death. He continued to have multiple and random sex-
ual partners, living a code of conduct that held: ‘It’s my right to do what
I want to do with my own body.’” The author continued that it was “this
type of intentional and reckless activity” that led to the presidential
commission’s recommendation that states adopt criminal laws to regu-
late the reckless behavior of individuals.111
Even those who opposed the criminalization of HIV transmission felt
it necessary to engage with Dugas’s example. Two Harvard law profes-
sors, who in early 1988 argued against the implementation of criminal
penalties, conceded:
The AIDS victim who deliberately exposes others in order to gain revenge,
for example, is no less culpable than a person who deliberately injects a vic-
tim with a lethal poison in the hope of causing death. Nor is culpability doubt-
ful in other instances that are likely to count as murder under the Model Pe-
nal Code: for example, the prostitute who knows he or she is contagious and
nonetheless plies his or her trade without precautions, indifferent to the
number of persons thus fatally infected, or the person who, knowing he has
AIDS, rapes another and so eventually causes his or her death.112
In a footnote to document the existence of those attempting to spread
the virus out of revenge, the authors noted, “The example of Gaetan Du-
gas . . . suggests this is not just a hypothetical case.”113
111. Raymond C. O’Brien, “AIDS: Perspective on the American Family,” Villanova
Law Review 34 (1989): 256– 57.
112. Kathleen M. Sullivan and Martha A. Field, “AIDS and the Coercive Power of the
State,” Harvard Civil Rights– Civil Liberties Law Review 23 (1988): 164.
113. Ibid. The authors also use “the now notorious ‘Patient Zero,’” on p. 153, as an ex-
ample of “the HIV- infected person who tells his doctors, despite their warnings, that he
will not give up unprotected sexual intercourse.” The authors had published an earlier ver-
sion of this article before Shilts’s book was released; see Sullivan and Field, “AIDS and the
Criminal Law,” Law, Medicine and Health Care 15 (1987): 46– 60.
234
chapter 4
And the Band Played On and the “Patient Zero” story infl uenced
the work of the Presidential Commission on the Human Immunodefi -
ciency Virus Epidemic that President Reagan had assembled in the sum-
mer of 1987. The commission held its fi rst hearings in September, just
as the prerelease publicity for Shilts’s book began to take hold in the
national media, and continued its deliberations until June 1988. During
the intervening time, the book became a nonfi ction best seller. One legal
scholar has intimated, albeit on scant evidence, that the temporal over-
lap of Band’s release and the commission’s hearings demonstrates that
the book had an impact on the commission’s recommendations, which
proved infl uential in legitimizing the subsequent use of criminalization
as an appropriate response to the epidemic.114 This assertion is valid, but
it requires a more careful consideration of the evidence.
There were several instances where the story had the potential to in-
fl uence the commission’s work. First, commissioners were mindful of
anecdotes that they heard outside of the documented hearings. For ex-
ample, in their discussion of the legal implications of HIV transmission
in April 1988, Admiral James Watkins, the commission’s chair, empha-
sized the importance of “answering the question that’s so often asked
me after many of these hearings.”115 In this instance he was contemplat-
ing the need for mandatory HIV testing for rapists in criminal cases,
providing recommendations that might do “a lot to allay public fears,
even though those circumstances in which the HIV may be transmitted
by that means may be small.”116 Thus, although it was apparently uncom-
mon, the possible threat posed by a small group of individuals was em-
phasized and, unsurprisingly, the undocumented concerns of citizens
from outside of the commission were imported into its deliberations.
Second, witness testimony and the commissioners’ discussions reveal
a sense of urgency in dealing with the possibility of dangerous disease
spreaders. One witness before the commission, a prosecutor from Gen-
esee County, Michigan, had attempted unsuccessfully to prosecute an
individual with HIV for attempted murder for spitting at a police offi -
114. James B. McArthur, “As the Tide Turns: The Changing HIV/AIDS Epidemic and
the Criminalization of HIV Exposure,” Cornell Law Review 94 (2009): 712– 14.
115. Transcript, “Hearing on Societal and Legal Issues,” Presidential Commission
on the Human Immunodefi ciency Virus Epidemic, April 5 and 6, 1988, 136, NCAIDS
Records.
116. Ibid., 137.
Giving a Face to the Epidemic 235
cer. This prosecutor urged the commission not to be deterred from mak-
ing strong recommendations in favor of criminalizing the transmission
of HIV, in spite of a perhaps inconvenient lack of evidence. “It should
be stressed,” he acknowledged, “that the percentage of AIDS carri-
ers who will maliciously or irresponsibly place others at risk is largely
speculative.” Nonetheless, he continued immediately, “This fact should
not deter us from developing a legislative framework to control such
conduct.”117
Most compellingly, the language used by one commissioner demon-
strated the way in which the term patient zero, originally coined as an
epidemiological term to denote the Los Angeles cluster study’s nonresi-
dent case of KS, had evolved over only a few months of widespread pub-
lic discussion to become synonymous with Shilts’s portrayal of Dugas
as a dangerous disease spreader. Theresa Crenshaw, a sex therapist and
one of the commission’s more socially conservative members, presented
a justifi cation for focusing on a small number of dangerous individuals.
She had recently read that 5 percent of the “carriers,” for sexually trans-
mitted diseases other than AIDS, were responsible for 80 percent of the
cases. This meant, she reasoned, “that a very sexually active small group
has an enormous impact on our society.” She continued, employing a
telling choice of words, that “we’re hearing such emphasis on the rarity
of the patient zero or some of the individuals that you’ve alluded to, that
have been prosecuted, whether they’re rare or whether they’re not rare
we really must act promptly and effectively to prevent many others from
becoming infected as a result of antisocial behavior.”118
The commissioners were evidently concerned with the potential risk
posed by individuals like
Shilts’s “Patient Zero.” Their fi nal report con-
tained a separate section on criminalization in which the commission
encouraged “continued state efforts to explore the use of the criminal
law in the face of this epidemic.”119 Source material from the commis-
sion’s support staff indicates that this section was based “almost verba-
tim” on Sullivan and Field’s article.120 Notably, however, the fi nal report’s
117. Testimony of Robert E. Weiss, Presidential Commission on the Human Immuno-
defi ciency Virus Epidemic, April 6, 1988, 4, NCAIDS Records.
118. Transcript, “Hearing,” 253, NCAIDS Records.
119. Presidential Commission on the Human Immunodefi ciency Virus Epidemic, Re-
port of the Presidential Commission on the Human Immunodefi ciency Virus Epidemic
(Washington, DC: US Government Printing Offi ce, 1988), 130.
120. Barry Gaspard [staff assistant to Commissioner Frank Lilly] to Members of
236
chapter 4
criminalization section disregarded Sullivan and Field’s conclusion that
“any deterrence that criminal enactments might add to incentives that
already exist is not worth the disadvantages of using the criminal law as
a tool to contain the AIDS epidemic.”121 Though the fi nal report cau-
tioned that “the use of criminal sanctions should not substitute for use
of public health measures to prevent transmission,” it seems likely that
its recommendations for increased use of criminal law and the power-
ful stories of deliberate disease spreading typifi ed by the example of Du-
gas may have contributed to just this type of trend.122 Between 1987 and
1989, twenty states enacted statutes that sought to criminalize the know-
ing transmission of HIV.123
In 1990, the US Congress passed the Ryan White Comprehensive
AIDS Resources Emergency Act, which incorporated many of the pres-
idential commission’s recommendations, to direct relief to the areas of
the country most affected by HIV. Among its many provisions, the act
required that, as a condition of federal funding, states have in place “ad-
equate” criminal laws to prosecute HIV- infected individuals who, know-
ing their infection status, intentionally exposed others to HIV without
their consent.124 By the end of the 1990s most states had in their statutes
some form of legislation that addressed the deliberate transmission of
Patient Zero and the Making of the AIDS Epidemic Page 38
