The Republic of T.

Black. Gay. Father. Vegetarian. Buddhist. Liberal.

Wrongful Death in West Virginia

The facts of this story are appalling enough all by themselves, without going where I’m about to go with it. So, before I go there, I’ll just let them speak for themselves. Suffice it to say, if you’re gay and having heart failure in West Virginia, you may not get CPR if the chief of police has anything to say about it. At least, that’s what happened to Claude Green.

Claude Green was driving his truck in Welch on June 21, 2005, with Billy Snead as a passenger, when he suddenly suffered heart failure. Snead was able to guide the truck to a stop and administer CPR, reviving Green who gasped for breath. While Snead continued to minister to Green, Chief Bowman arrived at the scene and physically pulled Snead away from Green, exclaiming that Green was HIV-positive.

Bowman called 911 for an ambulance and blocked Snead from attempting to resume attending to Green. When the ambulance arrived, Bowman told the emergency workers that Green was HIV-positive, which they recorded, but it appears that they attempted CPR while driving him to the hospital. Bowman also went to the hospital and informed the emergency staff there that Green was HIV-positive. Green died shortly after reaching the hospital from heart disease.

Green was not HIV-positive.

According to the complaint filed by Helen Green, Bowman assumed that Green was HIV-positive because he knew Green had a sexual relationship with another man.

Helen Green filed a claim with a wrongful death lawyer on behalf of her son’s estate against the city and Bowman, asserting violation of his right to due process and equal protection of the law in violation of the 14th Amendment, and also wrongful denial of services in violation of the Americans With Disabilities Act and the West Virginia Human Rights Act. She also asserted a claim under West Virginia’s Wrongful Death Act.

So, when you think about it, Claude Green died of ignorance, because he was gay or at least was known to have had a sexual relationship with at least one man. From that the police chief extrapolated that Green was (a) gay and therefore (b) must have AIDS, and (c) HIV can be easily transmitted while performing CPR. Green’s mother file a wrongful death suit on her son’s behalf, and the latest ruling in the case will now allow her suit to go forward.

That’s the end of the story, until the next step in the legal process. The judge had determined that Claude Green’s estate has a valid claim and that Helen Green has legal standing to file a wrongful death claim on behalf of her son’s estate. I guess because she’s his mother, and nearest surviving relative. But I couldn’t help thinking when I read the story, how might it have turned out if Claude Green had left behind a male partner?

It occurred to me because the West Virginia legal code includes the following.

§48-2-104. Contents of the application for a marriage license.

… (c) Every application for a marriage license must contain the following statement: “Marriage is designed to be a loving and lifelong union between a woman and a man.

§48-2-603. Certain acts, records, and proceedings not to be given effect in this state.

A public act, record or judicial proceeding of any other state, territory, possession or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of the other state, territory, possession, or tribe, or a right or claim arising from such relationship, shall not be given effect by this state.

So, West Virginia does not issue marriage licenses to same-sex couples, does not recognize same-sex marriages, civil unions or domestic partnerships solemnized or enacted in other states, and does not provide any form of legal recognition for same-sex couples. I’m no lawyer, but my guess is that if Claude Green had left behind a same-sex partner, his partner would have no right to file a wrongful death claim as any legal spouse would. (West Virginia doesn’t have common law marriage, so heterosexuals who aren’t legally married would be equally screwed, but would at least have the option to legally marry. Heck, if there’s time and you get get a minister or a justice o’ the peace to officiate at bedside, you could be legally married before your beloved breaths his/her last.

And no will, advance directive, or medical power of attorney could give a same-sex partner that right. If Green didn’t have any other living relatives to file the claim, or his mother was unwilling for his partner to join her in that claim, the partner would have no real options as far as legal recourse. Of course, that’s not much different from the reality that most same-sex couples face. While discussing the case with the hubby, we realized that neither of us would probably have legal standing to file such a claim either. Parker, as both of us are his legal parents, would have legal standing, and as the surviving legal parent either of us would probably be able to file suit on his behalf. But beyond that we have no legal relationship that the state is bound to recognize or respect. Legally, we’re strangers to each other.

There wasn’t a widowed same-sex partner in Claude Green’s case, but it’s just a matter of time before we see a case like that in a state where there’s no legal recognition for same-sex couples. We’re already seeing them in states that do have some form of legal recognition for same sex couples. In a previous post I blogged about the loss of consortium case of a lesbian couple in Connecticut (which has civil unions) and Sharon Smith’s wrongful death suit (in California) on behalf of her partner, Diane Whipple, who was mauled to death by their neighbors’ pit bulls.

In any case, there are a whole set of rights and protections that same-sex couples don’t have in most states, where no legal recognition of same-sex relationships is established or permitted, and although many of those rights have been granted to same-sex couples in a few states, they generally don’t survive a trip across state lines. On a trip from one coast to another, regardless of the route taken, same-sex couples will have our relationships drift in and out of legal existence depending on where we are.

So, we probably won’t have those rights and protections when we need them most. That’s why I say it’s inevitable that the next story we hear like Claude Green’s will probably include a same-sex partner who lacks a legal relationship sufficient to allow him or her to seek justice. So many similar stories have already happened. I like to think, in my more optimistic moments that stories like that will offend most people’s sense of morality, as Laurel Hester’s story did, and that most people will agree that stories like these shouldn’t happen, and that our families should have equal protections and benefits.

I hope I’m right, but I may be wrong. Only time will tell. In the meantime, we’ll hear more stories like Claude Green’s and others. And we’ll wait.

5 Comments

  1. Well put.

    The legal power of being parents is not to be underestimated in connecting same-sex partners. My partner and I were returning from abroad with our son. The three of us approached the immigration officer who watched our approach with a puzzled look. “He’s our son,” we offered to explain why we were approaching as a family. The immigration officer was a bit taken aback and said, “uhhh, you’re domestic partners?” Of course, we said yes and handed him the passports. This was all it took to get back home to the US. After the 23 hour flight, this felt like a huge welcome home present to be recognized (in a small way) by the government as a family.

  2. just the first half of this got me so mad i could hardly read on.

  3. I used to be pretty indifferent either way with respect to marriage rights. More recently, I’ve realised that it’s important that people have these relationships recognised; articles like this show exactly why it’s important and I hope that it is won within our lifetimes.

  4. California, Hawaii and Vermont allow same-sex partners to recover in wrongful death cases, and there have been other positive developments along these lines in both state and federal law (see this article for a quick summary). A lot more needs to be done, but at least it’s a start.

  5. One can look at the Terri Schiavo case and see that a husband’s legal standing and rights to spousal medical directives were ignored and blocked for FIFTEEN years!
    It the same factions that deny same sex couples such accomodation, would do it to straight couples too, damn the circumstances.

    But in the case of Green and Snead, the police officer kept Green from administering FIRST AID.
    If there is a Good Samaritan law in VA, it was violated.
    A GS law, compels someone to give aid to a stranger, or at least that stranger may proceed if they waive any danger to themselves to save a life.
    In any other situation, Green would be a HERO, for committing to first aid, despite possible risk to himself.
    So this situation was no only tragic because of the orientation of the couple, but a first responder (the police officer) not allowing someone to save a life for the same reason.

    Ya know…people are REAL shits when it comes to gay people.
    Their impossible and double standards, that are exclusively around gay lives…creates unnecessary and dangerous situations.
    Reminds me of the story of a white woman, who died in a car accident, in the Jim Crow South, because the nearest person who could have aided her was a black man.
    He feared touching her, or removing her from the danger for fear of the reprisals that a black man could incur…however innocently and for doing a good and responsible deed.

    When bigotry creates disaster, it’s the institution that’s wrong…not the object of the prejudice.

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