How are you charging cases where an hiv infected person has consensual sex with another and infects that person?

[This message was edited by Craig Greening on 05-30-02 at .]

I assume that the person you want to charge knew that he/she is infected and took no steps to protect the other person....if so, I think people have charged that as aggravated assault with a deadly weapon (bodily fluid infected with HIV). There is an old aggravated assault case where a guy who had HIV spit on on prison guard....Weeks v. State...can't get to the cite right now, but I'll get it later.

Anyone else charge it this way or differently?

Our office (Special Prosecution Unit) tried the Curtis Weeks case in 1990. He was within months of parole, and had already told anyone who would listen that he was going back to Houston and infect as many people as he could with his disease. (Resuming his career as a male prostitute). During a prison transfer, as he got out of the van, he looked at a prison guard, said "I'm HIV-4, and I'm going to kill you," then he spat into the face of the guard...all on video tape. We charged Weeks with Attempted Murder (Spitting) -- took him to trial in Walker County, and it became a battle of the experts, but we were successful; he got life and didn't get to go back to the Montrose and resume his career and share his germs with unwary customers. Case survived the appeals process, but Curtis didn't --
he went the way of all flesh a few years after the verdict -- now he can appeal to an even higher authority.

That's the one I was thinking about...the key is you don't have to prove that the act is LIKELY to infect the other person, but in Weeks' case, that was his intention, however unlikely that he could actually accomplish his purpose...

Right -- we were bombarded with the "absurdity" of Weeks' saliva being capable of killing the officer. Defense even bandied-about the term "spitting to scare" to include in the court's charge ... But the jury saw and understood Weeks' intentions, not his capabilities -- although we had Dr. Lorraine Day come and talk about the remote-but-possible likelihood that HIV cells could be absorbed by macrophages in the guard's mucous membranes, and what might happen if those cells did their thing.
We've had many cases come through the office where HIV-infected inmates have exposed others to their disease. And that doesn't account for what goes on every day in the prison system where AIDS-infected convicts have sex, consenual and otherwise, with "healthy" people, who in turn deliver the goods to other "healthy" people, who continue the legacy in and outside the penitentiary.

[This message was edited by A.P. Merillat on 05-31-02 at .]

This is a case where the defendant did not make threats to kill or infect; He just decided to have unprotected sex with his girlfriend. Does everybody think serious bodily injury can be proved because it "creates a substantial risk of death"? Does anybody have an opinion on how serious bodily injury is affected by medical advancement in the treatment of aids?

OK, let me float this and see if anyone thinks it works.

Aggravated assault under PC 22.02 states that it is an offense to commit a 22.01 assault and use or exhibit a deadly weapon during the commission of the offense...

1. Is the guy's semen a deadly weapon? Capable in it's manner of use in causing death or SBI? Sure.

2. Is this an assault under 22.01? It is an assault to recklessly cause bodily injury, but we can't say for sure that this would cause injury. What about causing physical contact with another hen you know or reasonably should know that the other will regard the contact as offensive or provocative? If the woman knew he has aids she would surely think it was offensive....

Just as shoplifting apparently cannot be prosecuted as burglary (even though the entry would be without consent if the owner of the building knew the intentions of the "customer"), I think you may have a problem saying touching during consensual sex would have been offensive if only the touchee had known more. If the partner contracts HIV, then that alone is sufficient to show serious bodily injury per Zule, 802 S.W.2d 34-5. You need only show but for the encounter the injury would not have resulted under 6.04(a). Apparently the crime is not complete, however, until that occurs, and if it never occurs, then it was not an assault by causing bodily injury. 22.041 has a bit broader definition of an assault("engage in conduct that places in imminent danger of"), but even that would not work here since "imminent" requires a closer and more definite connection. Maybe either our assault or sexual assault statutes need to be amended to cover this type of conduct more clearly.

Craig, your case sounds a lot like Zule to me (though the sex there was not consensual).

[This message was edited by Martin Peterson on 06-01-02 at .]

Martin, could we rely on 22.06(1) to limit her consent as a defense since the conduct in this case would threaten or inflict serious bodily injury, i.e. death from HIV.

John, I think 22.06(1) was just intended as a limitation on the mutual combat defense (i.e., you never impliedly consent to serious bodily injury in agreeing to duke it out or as a matter of policy its o.k. to consent to little fights but not big, bad fights). Still, maybe the language is capable of modifying the meaning of consent and it will probably have to be used in this way in a case like Craig's, since that will likely be the defense. I think its a great idea.

I have not seen 22.06 applied in the context of sexual assault, but it might work there too (consent is an element of that offense).

Craig's point about proof of causation or when the bodily injury must manifest itself remains a problem apart from consent, though.

[This message was edited by Martin Peterson on 06-01-02 at .]

Rob, at least there is no problem with the deadly weapon allegation. Najera, 955 S.W.2d at 702. But that theory is not needed if the conduct is charged as attempted murder as in Weeks. While it is certainly a stretch, maybe you could argue that the victim suffered some physical pain along with the supposed pleasure and her consent is irrelevant under 22.06(1), thus an assault plus a deadly weapon without waiting to see if there are further consequences. I'm still not real clear how Chief Justice McCloud got around the "tended" but failed language of the attempt statute. After all Weeks might have spit on the guard all day long without ever causing death.

[This message was edited by Martin Peterson on 06-01-02 at .]

Prior to the latest Penal Code revision, we had an "intentional exposure to AIDS" statute in the PC. But it required that the act done was likely to infect the victim. Something that could not be proven medically as people learned that you indeed were not likely to get AIDS from shaking hands with someone who had it.....Do we need some new statute here? Or some new "consent is not effective if you have AIDS and you haven't told your sex partner....

Great idea, Rob. Let's get back to that Old Penal Code. I've also been nostalgic for those other old offenses that were repealed. For example, let's bring back theft of a shopping cart.

And, while we are at it, how about adding an enhancement for passing on certain diseases:

First degree felony if defendant has HIV/AIDS;
Second degree felony if Gonnorea or syphilis;
Third degree felony if genital warts (I could go first degree felony on this one if pushed);
State jail felony if common cold.

Seriously, we have to be careful about jumping to adding new crimes to the Penal Code. Texas got into serious penal trouble and rewrote the Penal Code a mere 10 years ago because we had tried to classify every social issue into a penal solution, leaving us with an unwieldy and confusing book of laws.

You can't solve the world's problems with prosecution. We do our best work when we focus on punishing people for robbery, murder, rape, and all the old time bad things.

True, we don't want to go hog wild here, but John, you are the master of the deadly weapon finding. We know that the conduct by this guy could kill. We know that an informed sex partner would never consent to such a thing, and the actor knows it and doesn't mind risking the death of his sex partner.

so if we are having trouble making these cases, what's wrong with an amendment to the consent language or some other amendment to make this conduct easier to prosecute....since prosecutors seem to WANT to do this....

Apparently for a few years (89 to 93) it was recognized that exposing another to HIV was a significant problem that might not already be criminalized. It is unclear why 22.012 was not carried into the 94 code (except for the "unwieldy, too much specificity, social ills" arguments). I don't think the problem was otherwise solved and its significance doesn't seem to have declined. I guess the best argument is that it was not very likely to act as a deterrent and might just serve to force us to pay large amounts to take care of someone already under a death sentence. Anyone know if the statute was actually used or how other states have chosen to deal with the problem?

Martin, I think it was never used because you had to prove that the conduct was likely to infect the victim with HIV. Just can't prove that.