Mark Poutenis

I Have HIV

You might have bought or received candy this week. Or maybe flowers.

It's the most romantic holiday of the year.

But romance is decidedly not part of a defense lawyer's life. Consider this 2007 exchange between Miami Beach attorney Melisa Coyle and a middle-age Latina officeworker named Nelly about a onetime paramour named Dario Ross.



Coyle: Would you [and Ross] talk about a future together?

Nelly: No.

Coyle: And why not?

Nelly: Because I wouldn't have a future with someone like him.

Coyle: What do you mean by that?

Nelly: Meaning that he doesn't speak English. That he's just not the kind of person that I'd consider having a long-term relationship with.

Coyle: Then why were you having a relationship with him at the time?...

Nelly: Because, like I said. It was a sexual relationship.

Indeed Nelly, age 42, got more than she bargained for. Ross, she contends, didn't say he was HIV positive. She discovered that fact from a sheriff's deputy weeks after her last afternoon delight with Ross.

Nelly, who's a paralegal, isn't stupid. (That's not her real name, by the way.) She reported Ross to prosecutors, who charged him in November 2005 with a first-degree felony termed "criminal exposure of HIV," which carries a maximum sentence of 30 years in prison.

In the past, police and prosecutors haven't charged many people with the crime — it's usually reserved for prostitutes or guys with HIV who spit on cops arresting them — but lately there's been a flurry of cases in South Florida. All of them involve an HIV-positive guy and an HIV-negative woman. Not exactly Jane Eyre.

If we haven't yet spoiled your Valentine's Day, ponder the case of Eliodor Kersaint, a 23-year-old former South Beach club promoter, who was charged in April 2007 with the same crime. Cops say he didn't mention this little fact before bedding down a 19-year-old woman.

Both men go on trial in March. The similarities between the cases don't end there. Neither victim contracted HIV. And both men have lived with the disease for several years.

Then there's the case of Miguel Barrie, a 37-year-old Miami Beach man who was arrested this past January 22 for having unprotected sex with a St. Lucie woman and not disclosing his HIV status.

Why are these cases important? Because, says defense attorney Coyle, prosecuting people for not telling partners about their HIV status might discourage folks from getting tested. Ross's co-counsel, Carlos Fleites, explains, "The legislature obviously enacted this law to help prevent the spread of HIV, but the way the law is written, it actually discourages people from being tested as it only punishes those who know they are HIV positive."

Back to the love story.

Ross is a 180-pound, 50-year-old house painter. He contracted HIV around 1990 from heterosexual sex and has battled depression for more than a decade. He's not a nice guy. In 2002 he pleaded guilty to beating his then-girlfriend with the butt of a pistol and served less than a year in jail.

In late 2004, he met Nelly — and this is really romantic — through her ex-husband. They hooked up 15 or 20 times. At first, Nelly says, he wore a condom and she didn't ask about his sexual past.

During one tryst at a hotel, he told her sex "didn't feel good" with a condom. Nelly says she then asked him if he had any diseases, and he said no; she says she believed him because their relationship was "friendly and sexual."

In February 2005, Nelly let Ross use her car to go to North Carolina, to tie up some unfinished business with his ex-wife. There he was arrested for violating a restraining order his ex had taken out against him — and he called Nelly for help getting out of jail. During one phone call to the jail, a sheriff's deputy — the name wasn't mentioned in court records — let it slip that Ross was taking "lots of medication."

The next time Nelly talked to Ross on the phone, she grilled him about the medicine. He admitted having the disease and added that "having HIV nowadays was like having the common cold."

Talk about lame boyfriend excuses.

Nelly hung up and "freaked out," she says. Soon she called police, who later charged Ross.

Incidentally this whole episode happened three years ago in February, the most romantic month of the year. Last year, two other women faced the same issue after having random sex with near-strangers.

Handsome and smooth-talking, Eliodor Kersaint was known for persuading women to attend big nightclubs in Miami Beach — he was paid by the venues for each person he brought in. "[My friend] thought he was some big shot because he had a bunch of pictures of famous people on his stupid MySpace page," said a woman we will call Sarah. She would later press charges against Kersaint.

A 19-year-old Sarah met Kersaint in April 2007 through a friend. One night they went to the now-defunct South Beach club, Pearl, together and proceeded to get very "fucked up."

"I had a lot to drink," Sarah said in a deposition. She went to Kersaint's apartment on Washington Avenue, smoked some strong weed, and then woke up on a couch without her pants on.

According to an April 18 police report, Sarah had consensual sex with Kersaint but claimed to have been sexually assaulted by his roommates. She left the apartment, went to a rape crisis center, and then hooked up with Kersaint again the next day. They had sex a couple more times; once, according to Kersaint, the condom broke.

Miami Beach Police became involved after officials at the rape crisis center called about the possible sexual battery. As cops were investigating the case, Kersaint called Sarah's cell phone and left a voicemail message saying she needed to speak with a doctor about "something very important." Sarah, naturally, was alarmed and told police about the message.

When Miami Beach Sgt. Jed Burger contacted Kersaint, the promoter said he had HIV — but had not informed Sarah before sex. "He told us he knew it was a crime, that his doctor told him that," Burger would later say in a deposition. "He was very worried. He was — he was really concerned, and I didn't know who he was concerned for, himself or for her.

"But the guy seemed distraught. He was, he was physically, I could see him in distress. He was extremely concerned that we would not tell anybody about his status, that it would ruin him in the industry."

Police eventually dropped the sexual battery investigation and charged Kersaint in April 2007 with criminal transmission of HIV. The day after his court arraignment, he called Sarah.

"He said he went to court and that he was going to go kill himself," Sarah said in a January 2008 deposition. "And he wrote me back like two days later, oh, I didn't kill myself. I love you, I love you, I love you."

Asked Kersaint's lawyer, Lucrecia Diaz Hudson: "Did you have feelings for Mr. Kersaint?"

Replied the woman: "No."

The third and most recent case, involving Miguel Barrie, happened in St. Lucie County. According to police, Barrie met a woman on a yacht last year and then traveled to her St. Lucie condo, where they had sex over the course of a month or two. According to the Stuart News, Barrie "joked" about being HIV positive after their first encounter, but then said he was "only joking" about the, uh, joking.

Florida is one of several states that consider criminal transmission of HIV a felony. Some states consider the crime a misdemeanor, while others take into account the HIV-positive person's condom use. Florida has one of the harshest penalties for criminal transmission of HIV but rarely employs the law. According to a January 2007 article on, the law was enforced nationally only 316 times between 1986 and 2001 — with some offenders being sentenced to lifelong jail terms, harsher than if they had committed murder.

Ross's attorney, Coyle, says the law is applied selectively. For instance, if you are an HIV-positive drug user, there's no law that requires you to disclose that fact before you share a dirty needle. And breastfeeding mothers aren't charged for transmitting the disease to their babies.

A court — or maybe the state legislature — will have to decide the validity of Coyle's claim.

In any case, casual-sex seekers would do well to heed the advice of Charles Martin, director of the South Beach AIDS Project: "If you're not in a monogamous relationship, treat your partner like they're HIV positive. And they should treat you like you're positive also."

Ah, romance.


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