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Being HIV+ and committing Assault by Default

January 5, 2012

2. Law, 4. Arrest

Being HIV+ and committing Assault by Default

Having HIV is not the death sentence it used to be.  HIV is, however, a communicable and incurable disease.  As such, recklessly transmitting it to an unsuspecting person is a crime.  Historically, a body part could be a “deadly weapon” only in very limited circumstances, but that seems to have changed.  Under many current laws, being HIV+ means a person is carrying a weapon.  Having sex in some circumstances becomes Assault by default.

It’s tough to find unbiased information on this topic.  Everyone seems to be in camps at opposing ends of the spectrum with both sides telling us how reasonable and how picked on they are.  Most of the discussion is vacuous.

The broader issue is as old as Assault laws themselves – hit me with your fist, and we’re generally talking about Simple Assault – hit me with a deadly weapon, and we bump it up to Aggravated Assault.  The difference is in the grading: As far as crimes go, Misdemeanors are good, Felonies are bad.  What constitutes a “deadly weapon” can be a wonderful exploration of evolving society.  I recall two cases from law school:  A sock was a deadly weapon because it had a foot inside it (although an unsocked foot is not a deadly weapon), and a parking lot was a deadly weapon because the actor dislodged a piece of it and bashed in a guy’s head.  And, now, it seems, a penis can be a deadly weapon.

So does being HIV+ morph a person into a deadly weapon?  It seems so in some jurisdictions.  Is that discrimination?  Cut me a break.   [Your word here]-phobia has nothing to do with it.

From a somewhat biased article:  Thirty-four states have criminal laws that punish people for exposing another person to HIV, according to the advocacy groups working with Lee. Prosecutions occur even in the absence of actual HIV transmission, and the laws generally do not consider use of a condom as a defense, the groups said.

“Thirty-four states,” we’re told. I’m not arguing the number.  But let’s look at the “criminalization.”  Another site (which claims 32 not 34 states) lists these Pennsylvania Crimes Code sections:

18 Pa. Cons. Stat. 2703 (2nd degree felony) / 18 Pa. Cons. Stat. 2704 (Penalty shall be the same for murder in the 2nd degree, which is punishable by death or life imprisonment) / 18 Pa. Cons. Stat. 5902(a) (Felony of the 3rd degree) / 18 Pa. Cons. Stat. 5902(b) (Felony of the 3rd degree) / 18 Pa. Cons. Stat. 5902(e) (Felony of the 3rd degree)

Sounds bad.  Murder 2?  Felonies galore?  Here’s what is missing.  2703 and 2704 deal only with incarcerated prisoners as actors, and HIV is merely an example of a “communicable disease.”  2704 deals specifically with prisoners serving a life sentence.  5902 deals with prostitutes.

Now, in fairness, Pennsylvania has adopted a notification requirement, but has done so through the courts and not the legislature.  We have an existing crime:

§ 2705.  Recklessly endangering another person.  A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. [My note – this is graded as a Misdemeanor 2]

In Commonwealth v. Cordoba, the Superior Court sent back for trial a matter of one guy sticking his dick in another guy’s mouth over a few-week period without first telling him he was HIV+.  The Court considered the lack of informing a “gross deviation from the standard of conduct that a reasonable person would observe.”  That is generic to the crime as opposed to created because of HIV.  The PA Supreme Court denied review.

Is being required to inform a sex partner that you have a communicable disease burdensome?  I don’t have to answer that, do I?

Many other states require disclosure of HIV+ status before consensual relations.  Here’s Iowa’s scheme – Iowa Code § 709C.1:

1. A person commits criminal transmission of the human immunodeficiency virus if the person, knowing that the person’s human immunodeficiency virus status is positive, does any of the following:
a. Engages in intimate contact with another person.

4. This section shall not be construed to require that an infection with the human immunodeficiency virus has occurred for a person to have committed criminal transmission of the human immunodeficiency virus.
5. It is an affirmative defense that the person exposed to the human immunodeficiency virus knew that the infected person had a positive human immunodeficiency virus status at the time of the action of exposure, knew that the action of exposure could result in transmission of the human immunodeficiency virus, and consented to the action of exposure with that knowledge.

Granted, it opens up the possibility of recklessly disregarding your HIV status, but does that mean that someone will trade their long-term health for short-term sex?  OK, have at it.

Missouri is a bit more direct:

Mo. Rev. Stat. § 191.677.  It is unlawful for a person knowingly infected with HIV to be (or attempt to be) a donor of blood, blood products, organs, sperm or tissue, except as deemed necessary for medical research. It is also unlawful for a person knowingly infected with HIV to act in a reckless manner by exposing another person to HIV without the knowledge and consent of that person, in any of the following manners: (1) through contact with blood, semen or vaginal secretions during oral, anal or vaginal sex, (2) by sharing needles, or (3) by biting another person or purposely doing anything else which causes the HIV infected person’s semen, vaginal secretions, or blood to come into contact with the mucous membranes or nonintact skin of another person. The use of a condom is not a defense. A violation of these provisions is a class B felony, unless the victim contracts HIV from the contact, in which case it is a class A felony.

“Recklessness” includes (1) knowledge of infection when other person does not know or does not consent; (2) evidence of infection with primary and secondary syphilis, gonorrhea or Chlamydia; or (3) another person provides evidence of sexual contact with the HIV infected person after a diagnosis of HIV infection.

Mo. Rev. Stat. § 567.020.  Performing an act of prostitution, which is normally a class B misdemeanor, becomes a class B felony if the prostitute knew prior to performing the act of prostitution that he or she was infected with HIV.  The use of a condom is not a defense.

Notice that Iowa doesn’t require actual transmission of HIV and that Missouri is silent on it.  This is a common legal approach.  Think about me robbing a bank then bitching that I got a weapons enhancement:  “I pulled the firing pins before I went in! They were guns that couldn’t shoot!  I can prove it!  It’s on YouTube!”  Rape is “penetration no matter how slight.”  If we required someone to get HIV before we could charge the person infecting him or her, wouldn’t that encourage ignoring any drugs they could take?

None of these laws seem to be criminalizing a population.  Instead, they add HIV to an existing list of communicable diseases – and gives folks an out if the partner gives informed consent.  And to the extent the law is HIV-specific, it’s because they didn’t have a communicable-disease statute before.

How many people have been prosecuted in Pennsylvania?  20.  New York?  14. In the entirety of the United States?  345.  That’s hardly persecution.  Here’s a sample of 128 cases.

If you have a communicable disease, tell your partner before you whip out Bubbie for the party.  Simple.  No one is being picked on here.

Now the issues become what constitutes effective disclosure and what if your informed partner denies what you know to be true?  Ah, but that’s old territory.  Rape’s been dealing with it for decades.  Nothing new.

UPDATE:  I found a research paper from Canada addressing this issue, entitled “HIV, Consent and Criminal Wrongs.”  Here’s the Abstract:  Over a decade has elapsed since, in R. v. Cuerrier, the Supreme Court of Canada concluded that those who knowingly fail to disclose HIV positive status to their sexual partners are criminally culpable. Since then, the use of the criminal law in these circumstances has been criticized. It is suggested, in particular, that advances in the treatment of HIV-AIDS render several of Cuerrier’s key premises tenuous and in need of reconsideration. The Supreme Court has created an opportunity for such reconsideration in two appeals: R. v Mabior and R. v. DC. In this article we suggest that the Court should reconsider Cuerrier in a fundamentally different way, engaging more squarely with the boundaries of sexual assault. We believe that much of the criticism of Cuerrier, while thoughtful and important, proceeds from questionable premises of criminal responsibility that carry serious implications for the concept of consent to sexual activity.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

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