Military Court Raises Questions About HIV Tests

June 12, 2012

8 Jun (WASH DC) – In an unusual and possibly unprecedented trial verdict, rendered after expert witnesses raised “reasonable doubt” about the general validity of what are commonly called “HIV tests,” a military judge at Ft. Bragg, North Carolina on May 17 acquitted an Army sergeant of aggravated assault for failing to disclose his HIV “status” to sexual partners. The charges could have resulted in 37 years imprisonment for Sgt. Tarence C. Dixon.

by Terry Michael 

The case may provide impetus for efforts by HIV-AIDS advocates to revise so-called “HIV panic” statutes, enacted in several dozen states after AIDS appeared in the early 1980’s. Expert testimony in the case raised specific doubts about what an “HIV test” actually tests for, and about the disparate impact of such tests on males of African ancestry–Sgt. Dixon is African American–who are 5-to-7 times more likely than Caucasian men to react “positive” on the tests, according to defense witness and physician, Dr. Nancy Turner Banks.

Dixon had signed a confession that he did not disclose his “status” to female sexual partners, though he said he used condoms in each encounter. The judge, Maj. Brett Batdorf, found Dixon innocent of aggravated assault charges related to failure to disclose his HIV “status.”

In making his decision, Batdorf heard testimony from two defense expert witnesses, Dr. Banks and biochemist Dr. Rodney Richards, along with one prosecution expert witness, Navy Commander Timothy Whitman, a doctor of osteopathic medicine and assistant service chief, infectious diseases, at Walter Reed National Military Medical Center.

Dr. Richards participated in developing HIV blood tests in the 1980’s, when working (1982-95) for Applied Molecular Genetics, now called Amgen, the world’s largest independent biotech company. He has several issued patents protecting the HIV diagnostic technologies he developed while at Amgen. In 1984, he also began working in collaboration with scientists at Abbott laboratories during the time they were developing the first so-called “HIV test.” This test, known as the ELISA, was approved by the FDA in March 1985 for use in screening the blood supply for antibodies to proteins believed to be specific to HIV.

Richards argues that standard assays generally called “HIV tests” don’t actually prove infection with an active, pathogenic retrovirus. “They were first developed only as blood screening assays,” he explained in an interview, “and were not designed to be diagnostic for active infection with a virus. They look for antibodies believed to be specific to proteins of a retrovirus Dr. Robert Gallo asserted in April 1984 was ‘the probable cause of AIDS.’ ”

Dixon took the blood tests in 2010 as part of a routine pre-deployment health screening, when he was scheduled to be sent to Afghanistan; he was not deployed because of the results.

Before he took the HIV tests, he also had received a battery of inoculations, standard for deployment. In an interview, Richards observed that antibody “cross reactions” can cause the tests to “light up” as the result of many other factors, including vaccinations.

An 8-year Army veteran, Dixon spent 247 days in pre-trial custody after charges brought in 2011, when he was arrested after a former girlfriend accused him of assault and battery, for throwing a plastic bottle at her during an argument. Judge Batdorf found Dixon guilty of that physical assault charge, unrelated to HIV status disclosure, and sentenced him to 120 days (waived for time he had already served.). The arrest resulted in Dixon’s “status” later being revealed, to other women identified as former sexual partners. There was no testimony in the trial from any of the women disputing Dixon’s claim that he used condoms.

There also was no testimony from any of the women that they had contracted HIV from Sgt. Dixon. The defense introduced into evidence a 1997 scientific paper by Dr. Nancy Padian from the Univ. of California-San Francisco, who studied the potential for transmission of HIV in 176 “sero-discordant” heterosexual couples, where one partner was HIV-positive and the other HIV-negative, and not one of the subjects ever contracted HIV through sex.

In the court-martial proceedings conducted by the Judge Advocate General Corps (JAG), Dixon waived his right to a military jury trial and left his fate in the hands of the military judge. JAG prosecutors, apparently believing the outcome of their case was certain, declined an offer of a plea bargain by Dixon, according to his civilian attorney, William Cassara, a retired Army lieutenant colonel and former JAG Corps attorney.

Cassara was then offered assistance in March of this year by the California-based “Office of Medical and Scientific Justice” (OMSJ), organized by private investigator and former Los Angeles Police Dept. detective, Clark Baker.  OMSJ has been active in helping defendants charged under statutes of over 30 states, as well as of the military, that allow HIV to be considered a dangerous or deadly weapon, in cases of non-disclosure of “status” before sexual encounters, as well as in other circumstances, such as spitting or projecting blood onto another person.

OMSJ recommended to the defense team that they hire independent attorney Baron Coleman, who since 2007 has worked on similar cases, to examine the expert witnesses. In an interview after the trial, Coleman contended the judge acquitted Dixon because “there wasn’t evidence that the sergeant was infected with HIV.”

“The prosecution had prepared its expert,” Coleman went on to say, “to do little more than read a lab slip into the record. On cross-examination, he [Dr. Whitman of Walter Reed] acknowledged the test is subjective and that he had not inquired into whether Sgt. Dixon’s tests were valid or done correctly. He couldn’t say for certain, for example, that the lab received the correct sample. After noting he was aware of dozens of conditions that can cause cross-reactivity on HIV tests, Dr. Whitman testified he did not rule out any possible cross-reactivity, and that he did not follow-up to determine if what he was reading was accurate.”

Sandy Dean, a public affairs spokesperson for Walter Reed National Military Medical Center, in response to an inquiry for this article, said: “Cdr. Whitman stands by his testimony in the trial transcript.” Neither Whitman nor Dean had any comment on Dixon’s description of Whitman’s testimony. The trial transcript is not yet available.

One of the two defense experts, the Harvard Medical School-educated MD, Dr. Banks, was a practicing OB/GYN in New York City and suburbs in the early 1980’s, caring for the sexual health of female patients, when acquired immune deficiency syndrome (AIDS) was first noticed in gay and bi-sexual males. Banks has since made an extensive study of AIDS and HIV, and is author of the book, “AIDS, Opium, Diamonds and Empire.” An African American, she has focused a significant part of her research on unanswered questions about why millions of heterosexual black Africans, unlike white heterosexuals in the West, are said to have a deadly “HIV disease,” noting that “the population of Africa has doubled” in the decades since AIDS was first observed in the West in 1981; and why those of African ancestry in the West are, by orders of magnitude, more likely to test “positive” than are whites, calling into question the validity of HIV tests.

The black-white disparity phenomenon is documented by the Centers for Disease Control, which at its web page “HIV among African Americans” (Feb. 27, 2012 update) noted that, “The estimated rate of new HIV infection for black men was more than six and a half times as high as that of white men,” and that for black women the rate was “more than 15 times as high as the rate for white women.”

Sgt. Dixon was subjected to blood testing with standard assays that are routinely used in the medical community for declaring infection with HIV. He tested “positive” for HIV antibodies, twice on HIV Rapid Tests, twice on the ELISA, and twice on the so-called “confirmatory” Western Blot. He also tested positive twice on the so-called “viral load” test, using the polymerase chain reaction (PCR) process to test for a small fragment of genetic material believed to be part of the genome of the retrovirus known since the mid-1980’s as the human immunodeficiency virus, or “HIV.”

In an interview after the trial, Dr. Richards said, “During my testimony, I highlighted that none of the tests used on Sgt. Dixon are validated or approved by the FDA for use in diagnosing actual infection with HIV. I also emphasized that, according to package inserts of manufacturers of the so-called confirmatory Western Blot test used to diagnose Sgt. Dixon, persons with positive results are only ‘presumed to be positive for antibodies to HIV,’ and in accordance with CDC guidelines put forth in 1987, are further ‘presumed to be infected with the virus.’ ” According to Richards, “In the absence of any symptoms to inform a medical diagnosis, the link between HIV and a positive Western Blot is nothing more than one presumption layered on top of another presumption.” Richards also emphasized that, according to the FDA and manufacturers of Western Blot tests, the significance of a positive test result in a person without any symptoms of HIV disease, like Sgt. Dixon, is “not known.”

“Apparently this testimony was sufficient to raise reasonable doubt in the court’s mind,” Richards said, “as to whether or not Sgt. Dixon is actually infected with HIV.”

Mainstream HIV-positive advocates have been arguing in the past several years that laws enacted at a time of public panic about HIV and AIDS in the 1980’s need to be revised. President Barack Obama’s “National HIV/AIDS Strategy,” released in July 2010, noted that,“While we understand the intent behind such laws, they may not have the desired effect and they may make people less willing to disclose their status by making people feel at even greater risk of discrimination.” Others have argued such punitive laws may discourage persons in high-risk groups from getting tested in the first place.

In September 2011, U.S. Rep. Barbara Lee (D-CA) introduced H.R. 3053: “The Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act (REPEAL),” which “calls for review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses.” It is described as providing “incentives for states to reconsider laws and practices that target people with HIV for consensual sex and conduct that poses no real risk of HIV transmission.”

But few, if any, activists or public officials seeking elimination or reduction of penalties for “status” non-disclosure have questioned the reliability of the tests, as they were questioned in the Ft. Bragg trial. In fact, much of the impetus behind calls for re-writing existing law has been to encourage universal testing, on the theory that knowledge of status will promote “safe sex” and cause HIV positives to seek the class of drugs known as “anti-retrovirals.” That, despite the fact that the chemotherapy often has serious adverse “side” effects on health, unrelated either to HIV or AIDS, after years of use, as documented by New York magazine Nov. 1, 2009, in “Another Kind of AIDS Crisis.”

Questions about whether HIV antibody tests and the PCR and similar genetic assays find active retrovirus in the body were given credibility in assertions made by Dr. Luc Montagnier, who received the Nobel Prize for medicine in 2008 for discovering HIV. In a lengthy interview conducted in late 2006 for a documentary questioning HIV-AIDS, “House of Numbers,” Montagnier said: “We can be exposed to HIV many times without being chronically infected. Our immune system will get rid of the virus within a few weeks, if you have a good immune system.”
Terry Michael is a freelance writer in Washington, DC.  He is also director of the Washington Center for Politics & Journalism.