Man Accused in AIDS Case Challenges Indictment : Justice: A defense attorney says California’s assault laws do not address transmission of the deadly virus from one person to another.

The lawyer for the first man in California to be arrested on assault charges for allegedly spreading the AIDS virus through sex challenged on Wednesday the legality of his client’s indictment on the ground that no state law exists to support the prosecution.

The challenge, filed in Ventura County Superior Court by attorney Robert M. Sanger, asserts that prosecutors have no legal cause to prosecute David Scott Crother, a 45-year-old unemployed carpenter, on assault charges that the county grand jury leveled against him on Jan. 11.

California’s assault laws do not cover the transmission of the acquired immune deficiency syndrome virus from one person to another, Sanger said outside a courtroom Wednesday after filing the challenge.

“We do not agree that, even if the conduct alleged is proven, this is assault with a deadly weapon,” he said.

Sanger said his legal research has found neither precedent nor legal basis for the indictment. And California’s top prosecutors and civil rights advocates have said the Crother case is the first of its kind in California.

“We’re stretching the law to fit the situation to some extent, but we feel we’re stretching it within reasonable bounds,” Chief Deputy Dist. Atty. Vincent J. O’Neill Jr. said after the court proceeding.

Crother’s behavior is an assault because he exposed the alleged victim to the virus without informing her or getting her consent, O’Neill said. Those actions constitute an “offensive touching with the virus,” proof of which is required to win a conviction in an assault and battery case, he said.

“Then we move it up to a felony by the deadly weapon part, the virus. And the reason it’s deadly is because it is capable and likely to produce great bodily harm if there’s an infection,” O’Neill said.

Crother walked through a cordon of news photographers to appear at his arraignment Wednesday, but Superior Court Judge Lawrence Storch postponed the court session until after a March 1 hearing on the legal challenge.

Two weeks ago, the grand jury indicted Crother on 15 counts of assault with a deadly weapon, one for each of the sexual liaisons he allegedly had with an unidentified Ventura County woman between September, 1988, and August, 1989.

Prosecutors have said Crother knew he had the AIDS virus as early as 1988, yet had sex repeatedly with the woman without telling her about it or wearing a condom.

The woman and her baby, whom Crother allegedly fathered, have tested positive for the AIDS virus, according to the indictment.

Sanger said of the events alleged in the indictment, “This is a tragic situation, but you’re talking about putting a serious felony on him, on top of an eight-year prison term.”

Sanger declined to comment further.

Storch said Sanger must file legal briefs supporting his challenge by Feb. 8 and that O’Neill must respond to the challenge by Feb. 19.

Storch said that if he overrules the defense attorney’s challenge, Crother would probably be arraigned March 1. If Storch upholds the challenge, however, the indictment would be vacated, and prosecutors probably would appeal the decision to the state 2nd District Court of Appeal.

During Crother’s court appearance, Sanger said he will ask Storch to impose a gag order on all parties in the case to reduce pretrial publicity that could jeopardize Crother’s right to a fair trial by an unbiased jury.

O’Neill said he would not immediately support the gag order request, but will continue to oppose any attempts to unseal the grand jury transcript and reveal the identities of people who testified at the inquest.

“Despite the high media interest in this case, it hasn’t been played in a manner that merits a gag order,” he said.

Santa Barbara lawyer Philip J. Longo, in the courtroom Wednesday, said some unidentified potential witnesses in the Crother case have hired him to help maintain their right to privacy during the proceedings. However, he declined to comment on the case.

Crother remains free on $1,000 bail, which O’Neill said he won’t move to raise because “there are no facts in the indictment to justify a high-bail or no-bail situation.”

If convicted on all counts, Crother faces up to eight years in state prison and $150,000 in fines.