Last Friday, Oct. 7, 2011, a court in Minneapolis convicted Daniel James Rick of first-degree assault. His weapon: a disease he carried in his body, HIV.
In 2009, Rick had consensual, unprotected sex with his victim (unnamed). Rick says that before they had sex, he disclosed his HIV status, and the victim chose to engage in unprotected anal sex anyway. The victim later tested positive for the HIV virus, blamed Rick and charged him with assault. After a one-week trial, a jury convicted him of a felony.
In case there's confusion, let's break that down again: Rick and this guy decided they wanted to have sex. Rick informed this potential sexual partner he was HIV-positive. The potential sexual partner understood that Rick was HIV-positive and agreed to have anal sex without a condom.
Later, Rick's unnamed sexual partner tests positive for HIV and believes Rick transmitted it to him during their night together. This partner then decides his HIV infection was not the result of poor decision-making; instead, he decides he was the victim of assault. And then, a couple of years later, a jury agrees with him. Now Rick could go to jail for years.
The conviction hinged on a 16-year-old Minnesota statute, 609.2241, which states a person can be prosecuted when transferring a communicable disease through:
Since the jury believed Rick disclosed his status, they found him innocent of the first clause, but determined they had to convict him because of the second clause, believing it applied to any transfer of sperm, not just transfers in medical settings.
To be clear, Rick is not the picture of sexual function. He has been convicted of raping a 15-year-old boy and has three pending charges of attempted first-degree assault for having sex without disclosing his HIV status.
Still, the implications of this verdict are unsettling, distressing and enraging.
It's unsettling because there are 34 states where the transmission of HIV is considered either assault, assault with a deadly weapon or attempted murder. There is now precedent to convict anyone who is HIV-positive and transmits the disease to a consenting partner -- the entire positive community suddenly is now one condom break or bareback session away from being a criminal.
It's distressing because this verdict may further stigmatize the disease. Legal scholars have argued this type of verdict may lead to fewer people choosing to be tested for HIV. If a person doesn't know they are positive, they can claim plausible deniability if one of his or her partners gets infected and presses charges.
It's enraging because the statute listed above wasn't written in reference to any communicable disease. It was written about HIV. No other transmittable disease results in convictions of assault. If a small child or elderly person dies from the flu, no one is charged with assault. No one is thrown into jail for transmitting HPV to someone who later develops deadly cervical or throat cancer. People are only charged for transmitting HIV. The statute in Minnesota and those like it are based in homophobia and ignorance of the disease.
HIV is no longer seen as a death sentence; instead, treatment advances have made HIV a chronic, manageable disease. This fact is not lost on the current White House. In July 2010 the White House declared, "The continued existence and enforcement of these types of laws [criminalizing HIV infection] run counter to scientific evidence about routes of HIV transmission and may undermine public health goals of promoting HIV screening and treatment."
On Sept. 23, 2011, Congresswoman Barbara Lee (D-Calif.) decided to do something to get rid of these discriminatory laws by introducing a bill, H.R. 3053: The Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act, or the REPEAL HIV Discrimination Act. This act calls for the review of all laws, policies and regulations regarding the criminal prosecution of individuals for HIV-related offenses.
This bill could undo the damage caused by Rick's conviction.
The REPEAL HIV Discrimination Act has a long way to go before it becomes a law, and, given the current congressional climate, passage will be difficult. There are things we can all do to ensure it doesn't disappear in a House committee. There are currently 14 co-signers, but it's important to build as much support as possible. Talk to your congressperson today to add their support to this bill. Talk to your senators to create a similar bill. Most importantly, let as many people as possible know that it's important to get rid of these discriminatory laws.
Follow Phillip M. Miner on Twitter: www.twitter.com/PhillipMiner
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Criminal transmission of HIV - Wikipedia, the free encyclopedia
However, the omission of this evidence was not an attempt to cherry pick data. Instead, I didn't think it was necessary to mention.
My intention was to write a piece about the ramifications of the verdict, not the details of the court proceedings.
The jury couldn't say the HIV status disclosure was withheld. From the Star Tribune's report, "The jury found Rick not guilty under the first section of the statute, but convicted him on the second..." Instead, they convicted Rick based on a loose interpretation of a poorly worded statute.
This piece was about the implication of this verdict on future cases.
Rick's attorney, Ascheman Smith, has done a good job of summing up those ramifications, "Under the interpretation the prosecutors are pushing for, consent is not a defense. Meaning that no man with an STD can have unprotected sex with an knowing, willing, consenting partner without committing a crime."
On the other hand, as mentioned above, other STDs and communicable diseases do not have the same statutes. Is it fair to single out this one?
If you have a disease please don't share it, even if by consent.
If you have permission to carry a concealed weapon, please don't leave it on the dinner table, even if mama suggest you can.
My beloved had major heart surgery. If I feel a cold coming on, I sleep elsewhere, just as a precaution.
Somebody please explain to me how you could love someone so much, you want to share a disease of potential death and or human suffering?
Sleeping alone at night sucks when in love, Why risk a lifetime of regret for a few moments happiness?
Please love them less for the good of ALL society still actually paying the bills
People as fortunate as myself to have started the protease inhibitors in 1995 are still alive and kicking.
We are actual proof. Thank you for posting your incisiveness Phil!
I now know many people who contracted HIV 25 or longer ago, as well as people who have contracted it more recently. Clearly the drugs now available have not only saved lives, but given many people the ability to live really great lives.
I just do not consider this particular guy a worthy example to test a case...any case...of anything.
I always advised clients to sign off on each other medical disclosure forms. It saves both court time, and reduces prison and monetary damages profusely
I never personally understood I love you so much baby, I want to share my disease
If you know you have the disease, find an HIV partner, and help reduce this nightmare toward society. Label it your fair share of shared sacrifices toward your fellow man