An HIV-positive man has been indicted in Fayette and Fulton counties on felony criminal charges for allegedly engaging in consensual sex with three other men without disclosing his HIV status, a violation of Georgia law.

Gary Wayne Carriker, 26, of Fayetteville, is charged with one count of reckless conduct in Fayette County and two counts of reckless conduct in Fulton County. All three charges are felonies.

John Withrow, the 25-year-old man whose complaint led to the criminal charge against Carriker in Fayette County, also filed a civil suit in State Court in February against Carriker, claiming he has “suffered extreme and severe emotional distress arising from the fear of developing HIV.”

“This is not really a money case,” said Adam Jaffe, an attorney for Withrow, who lives in Peachtree City. “Our interest is to make sure [Carriker] does not do this again.”

Carriker, a medical student at Emory University, did not respond to an email or calls to his home in Fayetteville from Southern Voice seeking comment. His attorney, H. Clay Collins of Fairburn, did not return calls by press time.

In his April 2 response to the civil suit, Carriker denies the allegations and requests the civil suit be dismissed.

Carriker was arrested in November in Fayette County for allegedly having consensual unprotected sex with Withrow between Dec. 10, 2003, and April 30, 2004, without informing him he was HIV-positive, according to an arrest warrant.

Carriker was released from Fayette County jail on a $5,000 bond, according to court documents.

Fayette District Attorney Scott Ballard said Carriker was indicted in March and that the case may be placed on the trial calendar in September.

Carriker was arrested in Atlanta on April 18 and again on April 25 and charged with reckless conduct after two men alleged Carriker did not inform them of his HIV status before engaging in sex with them in separate incidents. Carriker was released on $25,000 bond.

Carriker allegedly engaged in consensual oral sex with one of the men between Jan. 8 and Jan 25, 2005, according to his May 10 indictment in Fulton Superior Court.

The man told police he had consensual sex with Carriker several times before Carriker disclosed he was HIV-positive on Jan. 25, 2005, according to an incident report from the Atlanta Police Department.

“[He] stated that he met Wayne Carriker in late December of 2004 and they began dating and having consensual oral sex inside his vehicle” and inside his condominium in Midtown, according to the March 28 police report.

The indictment in Fulton also charges Carriker with having consensual oral and anal sex with a second Midtown man without disclosing his HIV status between June 1, 2004, and Aug. 31, 2004.

According to the Fulton indictment, Carriker is accused of “knowingly engaging in consensual sex without disclosing that the accused was an HIV-infected person, thereby consciously disregarding a substantial and unjustifiable risk that sex without disclosure of HIV infection would endanger the safety” of the named partner. The law is seldom used in Fulton County, according to a spokesperson for the Fulton County District Attorney.

Carriker’s Fulton case has been assigned to Superior Court Judge John Goger but no hearing date has been scheduled, a court spokesperson said Wednesday. Felony reckless conduct by a person with HIV is punishable by up to 10 years in prison.

Former sex partner sues
Withrow, who brought the reckless conduct charges against Carriker last year in Fayette County, filed a civil suit against Carriker in Fayette State Court in February.

Withrow’s attorney said the two men met online on or about Dec. 10, 2003, and that Withrow asked Carriker several times if he was “disease and drug free.” Withrow alleged in the lawsuit that Carriker told him he was HIV-negative.

The two men dated until April 2004 and had unprotected sex numerous times, according to the suit. Withrow claimed in the suit that after they broke up, Carriker told him he had lied throughout the relationship, that he was in fact HIV-positive and was being treated for the disease.

Jaffe, Withrow’s attorney, said his client is undergoing repeated HIV testing and has tested negative for the disease.

“He will be enduring real mental trauma for the next couple of years,” Jaffe said.

No specific monetary amount is attached to the civil suit, but Jaffe said his client is asking that Carriker cover all medical expenses that may be incurred, including HIV tests. Withrow is also seeking punitive damages.

Few HIV-positive people disclose
Not disclosing an HIV-positive status is not uncommon, according to some recent studies.

A 2003 study by the Tulane University School of Public Health & Tropical Medicine and the Centers for Disease Control & Prevention found that only one in four people tell their casual sex partners that they are HIV-positive.

The study also showed that 74 percent of the study participants told their main partner about their positive status; 70 percent told someone in their immediate family; 27 percent told a relative other than their immediate family; and 26 percent told a friend. Some 18 percent of the respondents didn’t tell anyone.

People who were older were more likely to disclose the news, as were those who had progressed further along in their illness.

The risk of contracting HIV through sex varies, according to the Gay & Lesbian Medical Association.

The chance of contracting HIV through oral sex is about 1 in 10,000 chance per act, Dr. Tri Do, president of the GLMA, told Southern Voice in January.

“Various studies have showed this to be the average number, but the science is not very good in this area,” he said. “I think it’s probably closer to 1 in a million — you probably have a better chance of getting struck by lightning than getting HIV through oral sex.”

Those who engage in unprotected receptive anal sex with an HIV-positive partner have a 1 in 100 chance per act of contracting the virus, Do said.

AIDS activists say it’s the responsibility of each partner to discuss their HIV status.

“A person with HIV does have an ethical obligation to disclose his or her status,” said Jeff Graham, executive director of AIDS Survival Project. “At the same time, it is important for all people to not make any assumptions about another person’s health.”

A person with HIV faces many challenges, including a fear of rejection and discrimination, but that should not dissuade them from being honest with their sexual partners, he said.

“We certainly encourage disclosure and always encourage people to engage in low-risk sexual behaviors,” Graham said.

Georgia law puts the disclosure burden solely on the shoulders of the HIV-positive person, he added.

“When you hear cases like this [with Carriker], you have to remember it takes two people to practice unsafe sex,” Graham said. “Yet the law only recognizes one person as being responsible. This is an unfair burden placed on the person with HIV. We need to be sending out the message to everyone that you need to practice safe sex.”

Some 24 states have laws that specifically target HIV cases, including Georgia, said Jon Givner, HIV Project Director for Lambda Legal.

The measures range from being very specific, such as stating whether or not protected or unprotected sex is illegal, to the kinds of sex acts that are determined to be criminal for HIV-positive people who don’t disclose their status.

Georgia’s law appears to be fairly broad, Givner said, and seems to include any kind of sex act — from higher-risk insertive anal sex to lower-risk oral sex — as well as whether or not the sex act was unprotected or not.

“It also doesn’t require any showing of some kind of intent — all it requires is silence” or giving false information, Givner said. “These laws are pretty blunt instruments to get at a complicated subject with subtle nuances.”

Dyana Bagby can be reached at dbagby@sovo.com.