UPDATED: Texas House Bill would make spitting, urinating on a person punishable by a year in jail

Updated 03:17 p.m., February 24, 2009

by Vince Leibowitz of Capitol Annex

UPDATE: Evidently, writing this post at 2:25 in the morning and saving it for later publication as we did, we got a key proviso backward, thanks to the fact that our tired eyes didn't catch the word "actor" in a key place in the legislation. The bill enhances penalties for bodily fluid offenses if they are done by a person in authority like a police officer, etc. Rep. Pitts' staff tells us that the bill was introduced in response to this. We'll make that correction below. — VL

A bill by State Rep. Jim Pitts (R-Waxahachie) would make spitting (or urinating, throwing feces, secreting vaginal fluid, semen or or blood) on another person without their consent a Class A misdemeanor punishable by up to one year in jail. Doing the same to a minor or police officer would increase the penalty to that of a felony. Police officers and other persons in authority causing victims to come in contact with bodily fluids without their consent would also face stiffer penalties.

At first glance, the bill, which also includes penalties for causing a person to come into contact with the fluids of a person or animal for the purposes of sexual gratification without their consent, appears to address the 35-year prison sentence a Dallas homeless man with HIV received in 2008 for spitting on a police officer; he was charged with assault with a deadly weapon. Upon close examination, it is evident the bill does no such thing:

Not only does this not address the situation that arose from the 2008 incident, it creates a constitutional dilemma because it allows an actor to be charged with two different criminal offenses under two separate statutes for the same crime. Thus, the bill appears to violate the “double jeopardy” exception created by the Fifth Amendment to the U.S. Constitution, which disallows being punished more than one time for the same offense.

For example, if an actor raped a woman and urinated on her during the course of the rape, under Pitts’ bill, he could be charged with Aggravated Sexual Assault (or Sexual Assault, depending on the exact circumstances of the assault) and Assault with Bodily Fluids, even though the urination is essentially part of the assault. Technically, even if the actor didn’t urinate on the woman, if he sustained an orgasm and deposited seminal fluid into the woman, he could be charged with both sexual assault and assault with bodily fluids because his semen came in contact with the woman without her permission although, once again, the bodily fluid contact is a fruit of the primary offense–the sexual assault.

It doesn’t get better from there. If a teenager was charged with sexual assault for having sex with his girlfriend because she was under the age of consent, he could also be charged with assault with bodily fluids either for the deposit of semen or if they engaged in mutual urination because the girl wasn’t technically legally able to give her consent.

Luckily (and we say this with tongue planted firmly in cheek), since the bill does require that a person must display the “intent to assault, harass, or alarm” another person with the bodily fluid contact, persons who might cause another person to come in contact with the bodily fluids of another person or animal without their consent in any of the following situations should be protected from prosecution:

How far will this bill make it? It’s tough to say. I tend to believe that the double jeopardy issues here will at least result in a committee substitute to remove the “either/or” language. However, it could result in a complete scrapping of the bill if legislators would prefer to continue to allow deadly weapons prosecutions in bodily fluid cases related to communicable diseases.

Oh, what would a session of the legislature be without bills addressing urine and feces…..

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