In appeal, state Supreme Court has a chance to clarify law on HIV
I’m going to be crystal clear here about ambiguity. It is squarely at the center of a controversial law that will be reviewed for the first time by the state’s highest court next week. It involves a man named Daniel James Rick of Minneapolis and the state’s so-called criminal transmission law.
The legislation was passed in 1995 during the height of the AIDS epidemic, when contracting the human immunodeficiency virus meant a virtual death sentence.
The legislation made it a felony for “knowingly exposing a person to a communicable disease through transfer of blood, sperm, organs, or tissue.” An essential element of the law is that the victim was not made aware of the exposure before the transfer took place.
Rick, 31, who is HIV-positive, was charged with infecting a man he picked up at a Minneapolis bar and had unprotected sex with on numerous occasions in 2009. The partner, who tested positive for HIV a month after the initial encounter, testified that Rick never told him about his status.
Rick, however, said that he told the man and that he agreed to have sex anyway. Two years ago, a jury acquitted Rick of knowingly infecting the man without his knowledge but convicted him of attempted first-degree assault under a second subdivision of the law that mentions “sexual penetration” as a mode of transmission as well as “the transfer of blood, sperm, organs, or tissue, except as deemed necessary for medical research or if disclosed on donor screening forms; or sharing of non-sterile syringes or needles for the purpose of injecting drugs.”
Rick was sentenced to five years of probation. Although he believed Rick should have received prison time, Hennepin County Mike Freeman praised the verdict and said it was the first case to be tried in the state under the 18-year-old law. He described Rick, who faces similar charges in two other pending cases, as a man who was “mad at the world” and wants to intentionally infect other people because he has HIV.
Freeman’s victory was short-lived. Rick’s lawyers appealed the verdict on grounds that the clause under which Rick was convicted was ambiguous, unconstitutional and applied to medical procedures, not to consensual sexual acts.
Last year, in a 2-1 vote, a three-member panel of the Minnesota Court of Appeals agreed and reversed the conviction.
“Based on the way (the second subdivision) is written, it is reasonable to interpret (the first) as providing the only means of imposing criminal liability for an act of sexual penetration,” the majority wrote in its opinion.
“We conclude that (the statute) is subject to more than one reasonable interpretation and that the statute is therefore ambiguous,” the judges wrote. When laws are deemed unclear, the benefit of the doubt almost always goes to the accused in American jurisprudence.
Freeman nonetheless considers Rick, who pleaded guilty to felony third-degree criminal sexual conduct last year in Sherburne County and served two months in jail for having sex with a 15-year-old, a danger to public health.
Rick is facing charges in Hennepin County under the HIV transmission statute for allegedly raping an intoxicated man two years ago and transferring the virus to him. There’s another assault case, as well as charges he failed to register as a sex offender. Those cases are on hold pending the outcome of Freeman’s appeal of the lower court ruling before the Minnesota Supreme Court. Freeman himself will be giving the oral arguments at a hearing Tuesday, May 7, before the seven-member court.
“The office was presented with a fact pattern whereby the specific acts of one sexual predator harmed other people,” Freeman argues in court documents. “This office determined that this statute best addressed this defendant’s harmful actions. The office’s use of the statute in this particular circumstance is no more and no less than that.”
Though bolstered by the opinion of a dissenting appeals court judge, prosecutors have their work cut out for them in this case.
In a brief submitted before the hearing, Rick’s attorneys, Grant Smith and Landon Ascheman, reiterated in more detail their winning argument before the lower court. They also got a boost from a friend-of-the-court brief submitted by the Association of Nurses in AIDS Care, the HIV Medicine Association of the Infectious Diseases Society of America and the National Alliance of State Territorial AIDS Directors.
They note that the law was passed in the midst of “fear and public outcry about a new and horrifying disease.”
But times have changed, they assert, and the law as written now presents an impediment to disclosure as well as a tool to criminalize consensual sex, however risky.
“Today, HIV infection is a chronic, manageable illness for those with access to appropriate care,” the groups state. “The prosecution of individuals like respondent Daniel James Rick, who have taken affirmative steps to inform their partner of their HIV+ status, is neither medically appropriate nor legally justified.”
It will be interesting to see how the court rules. Minnesota is among 32 states with criminal transmission statutes specifying transfer of the HIV virus. Forty-five states have laws against HIV-positive people not disclosing their status during sex, acts of prostitution, needle exchanges or when making organ, blood, or semen donations, according to the Center for HIV Law and Policy. In 13 of those states, there are laws against HIV-positive people spitting on or biting someone. The center notes that neither of those actions has ever been proven to transmit HIV.
My take? The law will be kicked back to the Legislature for fine-tuning, scrapped in favor of general felony statutes. Or Rick’s might rise to a test case that ultimately winds up before the U.S. Supreme Court. That’s as ambiguous as I am going to get about this.
HIV felony conviction overturned
The Appeals Court ruled that language in a state law used to convict of X infecting his sexual partner was unclear.
Citing a lack of clarity in state law, the Minnesota Court of Appeals on Monday overturned the felony conviction of a man who infected his sexual partner with HIV, even though a jury found he gave fair warning that he had the disease.
The 2-1 decision is a victory for X, 31, and his attorneys, who challenged his October 2011 conviction of attempted first-degree assault, saying the prosecutors used a vague interpretation of a 17-year-old state statute that left the jury no choice but to find him guilty.
Hennepin County Attorney Mike Freeman, who said the prosecution was the first of its kind in the state using the statute, plans to appeal the ruling to the state Supreme Court.
The Appeals Court reasoned that legislators did not make clear whether it is illegal for people infected with communicable diseases to have unprotected sex if they first notify their partner of their status. Under the law, “Communicable disease” means a disease or condition that causes serious illness, serious disability or death.
“Although we agree that the Legislature generally intended to prevent the spread of serious communicable disease, we find little support … that the Legislature clearly and unambiguously intended to prevent the spread of disease by criminalizing informed sexual penetration between consenting adults,” Judge Michelle Ann Larkin wrote.
Statute’s meaning at issue
The alleged victim testified last year that he had sex with X several times before and after he discovered in 2009 that he was HIV-positive. He testified that X never told him about his HIV status. X, who tested positive for HIV in 2006, testified that he told his partner he was HIV-positive before they had sex, and that he figured his partner was as well.
According to statute 609.2241, a person commits a crime when transferring a communicable disease through “sexual penetration with another person without having first informed the other person” of their positive status, or by the “transfer of blood, sperm, organs or tissue, except as deemed necessary for medical research or if disclosed on donor screening forms.”
The jury believed X informed his partner and found him not guilty under the first subdivision of the statute, but convicted him on the second. X’s attorneys argued the second subdivision was intended to apply to medical procedures, not sexual intercourse.
The Appeals Court agreed, noting that the term “vaginal secretions” was absent from the language, although HIV and other communicable diseases can be transferred from a woman to a man during intercourse.
“We presume the Legislature did not intend to enact a law that subjects only men, and not women, to criminal liability for identical conduct,” Larkin wrote.
In his dissent, Judge Larry Collins wrote that the language in the statute’s subdivision is clear. If it applied only to medical procedures, he wrote, a clear exception would be made for cases of sexual penetration.
“Any reasonable person reading this statute would understand that he may engage in unprotected sexual activity as long as he discloses his disease status to the other person, but that he should not transfer sperm to the other person,” Collins wrote.
Appeal is planned
X’s attorney, Grant Smith, lauded the decision, which recognizes what he called the flaws in a “hastily written statute.”
“What the Court of Appeals said was that if you’re open and honest with your partner, and your partner has sex with you anyway, you’re not going to be criminally liable under this statute,” he said.
Freeman disagreed, saying the law was written specifically for cases like X’s. “This conduct is exactly what the Legislature wanted to stop,” he said.
X received four years’ probation following the conviction, but he faces three more counts of attempted first-degree assault and third-degree criminal sexual conduct in earlier cases.
He was charged in February 2010 with raping a drunken man after a night out in downtown Minneapolis, transferring the virus to him.
Two partners who met X over a website then came forward to accuse X of having sex with them but failing to tell them that he had the virus. One of the men contracted the virus, while the other did not. Hearings for both cases are scheduled for later this month, along with a hearing for failing to register as a sex offender.
X also pleaded guilty last year to felony third-degree criminal sexual conduct for having sex with a 15-year-old in Sherburne County. He received two months’ jail time and probation.