September 17, 2013
In late August, the Minnesota Supreme Court overturned an HIV-positive man's conviction by a jury for "attempted first-degree assault by communicable disease." State of Minnesota v. Rick, A12-0058 (Minnesota 2013). However, Mr. Rick's victory did not strike down Minnesota's communicable diseases criminal statute. People living with HIV remain at risk of criminalization in Minnesota.
It still is illegal for people diagnosed with HIV to engage in "sexual penetration" without disclosure (Minn. Stat. § 609.2241 subdivision 1), or to "transfer ... blood, sperm, organs, or tissue" (Minn. Stat. § 609.2241 subdivision 2). In Mr. Rick's case, the court clarified that the second part of the law -- criminalizing the "transfer" of bodily fluids -- does not apply to sexual conduct.
In 2009, Mr. Rick met a man identified in court records as "D.B." through a "hook-up" website. Mr. Rick had unprotected sex with D.B., who subsequently tested positive for HIV. Although D.B. claimed that Mr. Rick never disclosed his HIV status, Mr. Rick testified that he disclosed his status, and that D.B. likely was positive due to D.B.'s prior unprotected sex with numerous other individuals. At trial, a jury found Mr. Rick's version of the events more credible, and therefore found that he was not guilty of "sexual penetration" without disclosure under the first part of the criminal statute.
The court's decision applied to -- and reflects the particular facts of -- Mr. Rick's case. The court did not address the validity of either section of Minnesota's criminal HIV law. People who test positive for HIV can still find themselves facing a criminal charge (and conviction) for "sexual penetration" without disclosure, especially if the complaining witness has a more tame sexual history than that of Mr. Rick's accuser.
Although the jury found Mr. Rick not guilty of "sexual penetration" without disclosure, the trial court rejected his lawyer's argument that the part of the law criminalizing the transfer of bodily fluids could only apply to medical procedures -- not sexual contact -- and allowed the jury to decide whether Mr. Rick was guilty of criminal transfer of HIV-infected bodily fluids. The jury found that Mr. Risk was guilty of "attempted first-degree assault by communicable disease."
The Minnesota Supreme Court reversed the trial court on its interpretation of the law, and consequently the jury verdict was overturned. The Court concluded that the second part of the law logically applies only to the donation or sale of blood, sperm, organs, or tissues for medical purposes. In Minnesota, sex while HIV-positive is not, by definition, a crime; criminal liability hinges on the failure to disclose, or at least on proving that one disclosed.
Mr. Rick's case eliminates the risk that people living with HIV can be prosecuted for any behavior that could be characterized as the "transfer" of their bodily fluids to another, such as spitting. This is a good outcome because it narrows the opportunities for misuse of the criminal law. Nevertheless, we have a long way to go before Minnesotans are safe from irrational, retaliatory targeting based on the fact that they stepped up to get tested.
Iván Espinoza-Madrigal is legal director at The Center for HIV Law and Policy. Rashida Richardson is a staff attorney at The Center for HIV Law and Policy.