Patient Zero and the Making of the AIDS Epidemic

by Richard A. McKay

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