US: HIV exposure conviction overturned by Kansas Supreme Court

Edwin J Bernard - June 21, 2009

On Friday, the Kansas Supreme Court overturned the HIV exposure conviction of Robert Richardson in Lyon county because the case ended up being a discussion of infectiousness, rather than one where the prosecution provided evidence that proved intent – which would have simply required testimony from a complainant about nondisclosure and non condom use.

Richardson’s case is somewhat complicated by the fact that he had previously been found guilty, in another county, of four counts of HIV exposure involving three women. Although originally sentenced to 32 months in prison, the Lawrence Journal-World reports that he “was later re-sentenced to two years probation” and that he was “released from supervision on the Douglas County cases in February.”

So this appeal was about whether Richardson should serve time for HIV exposure in Lyon county. The Emporia Gazette reports that:

Richardson’s defense had said that the prosecution had failed to establish that HIV is always a life-threatening disease; that he had actually exposed the victims because of lack of evidence that bodily fluids were exchanged during intercourse; or that he had the specific intent to expose his sexual partners to HIV.

The Emporia Gazette article then quotes Kansas Supreme Court Judge Lee A. Johnson who exaplains how and why he made the decision.

The trial, which took place without a jury in front of Judge Jeffry Larson,

“consisted entirely of testimony from two medical doctors, Dr. Christopher Penn for the prosecution and Dr. Clifton Jones for the defense.”

“The testimony of both doctors concentrated on whether HIV may be transmitted when a viral load level is low or undetectable and the effect of the virus on an infected individual’s lifestyle.”

Richardson’s “viral load” test in February 2005 had revealed 11,700 parts per millileter, considered a “medium level of the virus.” A new medication was prescribed and Richard’s viral load test in November 2005, after the incidents of sexual intercourse, had dropped significantly.

“The result was a viral load level of less than the minimum which could be measured, i.e., less than 50 parts per milliliter,” Johnson wrote.

This is interesting, given what we now know to be the Swiss statement. However, being somewhat ahead of their time, these arguments failed in the original trial, but what the State failed to do in this trial, explains Judge Johnson, was prove that Richardson had intended to expose the two female complainants to HIV.

Johnson wrote that in addition to the general intent requirement that almost always is in place, some crimes require an additional, specific intent. In this case, the law states it is unlawful for someone who knows he or she is infected with a life-threatening communicable disease to knowingly “engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life threatening communicable disease.”

The state Supreme Court found that the statute creates a “specific intent crime. The State was required to prove that Richardson, knowing he was infected with HIV, intentionally engaged in sexual intercourse … with the specific intent to expose them to HIV.”

Johnson wrote that the state presented evidence at the preliminary hearing from the two women involved with Richardson to establish that Richardson had HIV when they had sex with him, that he did not use a condom, and that he had falsely represented to one of the women that he was free from sexually transmitted diseases.

“These are prime examples of proven circumstances that could support an inference that Richardson intended to expose (the women) to HIV,” Johnson wrote. “Inexplicably, the State chose not to present any of this information at trial, and those facts were not included in the parties’ stipulation.”

Johnson wrote that the evidence was insufficient to support the convictions, prompting the justices to reverse both cases.

So, although this might be good news for Richardson, it’s not good news for anyone else who may be prosecuted under Kansas’s HIV exposure law. All that is required for a conviction is for the complainant to testify that the defendant, knowing he (or she) was HIV-positive, did not use a condom and did not disclose (or concealed) his (or her) HIV status.