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Dangerous Precedent: HIV-Positive Man Convicted for Infecting His Informed, Consenting Partner

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HIV CRIMINALIZATION
Alamy

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:

  1. Sexual penetration with another person without having first informed the other person that one has a communicable disease
  2. Transfer of blood, sperm, organs or tissue, except as deemed necessary for medical research, or if disclosed on donor screening forms
  3. Sharing of nonsterile syringes or needles for the purpose of injecting drugs

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.

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Criminal transmission of HIV - Wikipedia, the free encyclopedia