Accused of Having Sex After Knowing He Has Virus : Ex-GI on Trial in W. German AIDS Case

A retired U.S. Army sergeant is being tried in this ancient Bavarian city on the controversial charge of engaging in sexual activity after learning that he had tested positive for the AIDS virus.

The case is the first to be brought to court under a new Bavarian state regulation dealing with AIDS--acquired immune deficiency syndrome. Because the defendant has been charged with a felony, the case has provoked criticism from liberal politicians and AIDS assistance groups, which are following the case closely.

The accused, Linwood Boyette, 45, served with the Army in West Germany and then retired here. He is charged with attempting to cause grievous bodily harm to his sexual partners, an offense punishable by five years’ imprisonment.

Relations With 3 Men

State prosecutors say that in June, 1986, after he retuned to civilian life, Boyette, a homosexual who was employed as a cook in Nuremberg, went to a U.S. Army dispensary for treatment of a venereal disease. He was examined by an Army doctor and told that he was carrying the AIDS virus, though he had no symptoms of having the disease.

The prosecution contends that Boyette, despite this knowledge, then had sexual relations with at least three men--one German, one Spanish and the other Italian. The prosecution charges that he did not tell his partners of his condition or take any precautions.

Under recently enacted Bavarian law, the Army doctor was obliged to notify local health authorities. He did so, and the civilian authorities questioned Boyette.

Police detectives then circulated a picture of Boyette in the gay bars of Nuremberg and three men identified the former soldier as a sexual contact. They allegedly told authorities that Boyette did not inform them of his condition and that he took no precautions during contact.

According to the prosecution, Boyette’s conduct brought his partners into “danger of death.” He was charged under a Bavarian amendment to a federal health law that says anyone who knowingly passes on a dangerous disease, thus endangering others, is liable to criminal prosecution; the Bavarian regulation, which went into effect last February, adds AIDS to the list of diseases that can trigger the law.

The regulation, issued by the state Interior Ministry, says anyone who knowingly has sexual relations with someone else “without protection” endangers his partner and faces criminal prosecution. The state minister of justice, Mathilde Berghofer-Weichner, told the state legislature that an AIDS carrier who knowingly infects a sexual partner could even be charged with murder.

Bavarian police officials have decided that “without protection” means without condoms or without informing partners of the presence of the AIDS virus. Authorities here also have taken the lead in tracking down AIDS carriers reported by doctors and investigating their sex lives, with an aim toward prosecution.

In West German judicial procedure, the defendant does not enter a plea of guilty or not guilty, but Boyette has denied, through his lawyer Karl-Heinz Becker, that he associated with the three men after he was told he tested positive for the virus.

The case has been complicated somewhat by the vagueness of Boyette’s three alleged partners, who have not been precise about when the contacts occurred. Moreover, a detective testified on Oct. 2 that the Spanish partner was himself an AIDS carrier, and that the Italian has left the country.

To Call Army Doctor

Boyette has spent seven months in prison since his arrest, and the trial has been conducted in the traditional German on-again-off-again fashion, with courtroom sessions limited to about one a week. In the next step, scheduled for Oct. 12, the prosecution plans to call the examining U.S. Army doctor, who now lives in San Diego.

Courtroom observers say the five-member judicial panel could throw the case out for lack of proof that Boyette had contacts after he was told he was a carrier. In this event, the panel would not rule on whether such behavior actually constitutes a serious offense, and the constitutional issue would not be addressed.

For a time, it appeared that Boyette might be deprived of the services of an interpreter. When the trial began, in late September, the interpreter said she did not wish to sit next to Boyette because she did not wish to put her two children at risk.

The chief judge then ruled that she could sit across the table from the defendant. When he addresses her directly, she places her hand in front of her face.

Health authorities say that the AIDS virus is transmitted only by bodily fluids during physical contact.