Prosecutors appeal dismissed charge in Bennington sex case - They say assault stemmed from defendant's lying about his STD
BENNINGTON — In November 2018, a woman said R.B. had sex with her multiple times without saying he was HIV-positive. In one instance, she reportedly asked the Bennington man if he had a sexually transmitted disease, and he said “no.”
State prosecutors are now asking the Vermont Supreme Court to reinstate B’s charge of repeated aggravated sexual assault, saying the woman wouldn’t have agreed to sex if she had known B had HIV.
According to Vermont State Police, the woman became suspicious that B had an STD when he wanted to use a condom the first time they had sex. She told investigators she confronted him about it, but he denied having an STD.
Judge John Valente, of the Superior Court in Bennington County, earlier dismissed the felony charge after B’s attorneys said his alleged actions were not a crime under state law.
Bennington County Deputy State’s Attorney Alex Burke argues that B, 35, committed the crime when he “repeatedly lied to her about his HIV status, thus making the sexual encounter nonconsensual,” according to the brief he submitted to the Supreme Court.
“The victim never agreed to have sex with a man who was HIV positive,” Burke wrote.
He cited case precedent in which the Vermont Supreme Court found that “there is no consent when consent is based on fraud,” though the prosecutor acknowledged the cases did not directly address sexual acts.
B’s attorneys, on the other hand, said there is no provision in Vermont’s criminal or public health laws that criminalizes a person’s failure to disclose his HIV status before he engages in sex.
Public defender Dawn Matthews, who is representing B before the High Court, said Judge Valente determined that if the state legislature wanted to criminalize sexual conduct based on non-disclosure of a person’s HIV status, “it would have said so explicitly.”
Alternatively, Matthews said in her brief, the legislature could have made such withholding of STD information a misdemeanor, as it did with gonorrhea and syphilis.
“That it did not do so should end this matter,” she wrote, emphasizing that it is lawmakers — and not the Court — that should legislate the issue.
The state Supreme Court heard oral arguments in the case May 14, which was streamed live on the Vermont Courts’ YouTube channel.
While B’s prosecution is ongoing, he is detained at Southern State Correctional Facility in Springfield, according to Vermont’s inmate database online.
He currently has two pending felony charges: sexual assault with no consent, as well as lewd and lascivious conduct. Both are based on a sexual act he is alleged to have forced on the same woman, and do not touch on his HIV status, according to court documents.
B was tried on the two charges last August, but a jury couldn’t reach a unanimous verdict. The state sought to retry him and added a third charge of repeated aggravated sexual assault — the most serious of the charges, carrying a potential penalty of 10 years to life in prison.
Vermont Associate Justice William Cohen, who presided over B’s trial while he was a Superior Court judge, has recused himself from the Supreme Court appeal.