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Posts Tagged ‘exposure to HIV’

Florida Supreme Court Confronts Definition of “Sexual Intercourse”

Posted on: March 17th, 2017 by Art Leonard No Comments

In Debaun v. State, 2017 Fla. LEXIS 583, 2017 WL 1024526 (March 16), the Florida Supreme Court resolved a conflict between the intermediate appellate courts of the state about how to define “sexual intercourse” for purposes of a statute that makes it a crime for a person who knows he is HIV-positive to fail to disclose that fact before engaging in “sexual intercourse” with another person. Surprisingly, the 2nd District Court of Appeals had ruled in 2011 that the statute applied only to acts of penile-vaginal intercourse and not to cases of sex between gay men.  The 3rd and 5th District Courts of Appeals ruled that gay sex was covered by the statute.  The Court granted review in the 3rd District case to resolve the dispute.

The problem arose from the legislature’s failure to define the term “sexual intercourse” in the statute, presumably because the legislators assumed everybody would know what they meant. In 2011, the legislature decided to update the state’s sex crimes law by replacing the old “Venereal Diseases Act,” which explicitly applied only to sex between a man and a woman, with a new law titled “Control of Sexually Transmissible Disease Act.”   Both of these statutes used the term “sexual intercourse,” but the later statute removed the earlier statute’s explicit application only to mixed-sex couples.

In an early case decided under the new law, the 2nd District court confronted a motion by a gay man to rule that the statute did not apply to him.  Looking for a statutory definition of “sexual intercourse” elsewhere in the Florida penal laws, the court found the incest statute, which defines “sexual intercourse” as “the penetration of the female sex organ by the male sex organ.”  That court concluded that when the legislature defines a phrase in one sex crimes statute, it is appropriate to use that definition in other sex crimes statutes.  Thus, it concluded – rather nonsensically, given the context – that the legislature’s use of the phrase “sexual intercourse” in the sexually-transmitted disease statute “is clearly and unambiguously limited to heterosexual penile-vaginal intercourse,” so the statute did not apply to that gay defendant’s case.

Gary Debaun’s charged violation was particularly egregious. His prospective sex partner had asked him for proof that he was not infected with HIV, and he responded by forging his doctor’s name on a lab test form to certify that he had tested negative for the virus.  He knew he was positive, but did not want to disclose that fact.  Somehow his partner later discovered after having sex with him that Debaun was positive and reported the crime, helping police detectives obtain an admission from Debaun during a “controlled phone call.”

Debaun moved to dismiss resulting the felony charge by citing the 2nd District Court of Appeals ruling.  At the time, this was the only Florida appellate ruling on point, and the trial judge followed it, granting the motion.  The state appealed, and the 3rd District reversed, resorting to dictionary definitions of “sexual intercourse,” which go beyond the traditional heterosexual definition.  The 3rd District also relied on the legislative history of the statute.  If the legislature’s intention was to deter and punish conduct that could spread HIV, it would not make sense to limit the law’s application to heterosexual intercourse.  The 3rd District court concluded that the legislature clearly intended to adopt the broader interpretation.  Debaun appealed this ruling to the Supreme Court.

While Debaun’s appeal was pending, the 5th District Court of Appeals had occasion to rule in a similar case, also reversing a trial court’s dismissal of charges against a gay man, where the trial court had relied on the 2nd District ruling.  That case didn’t get up to the Supreme Court because the defendant did not file a timely notice of appeal.

The Supreme Court, ruling unanimously, agreed with the 3rd District’s approach.  Where the legislature does not spell out the meaning of a term it uses in a statute, Justice Charles Canady wrote for the court, “the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent.”  The first place to look for plain meaning, said the court, is the dictionary.

Justice Canady quoted from Webster’s Third New International Dictionary, the American Heritage Dictionary, and Merriam-Webster’s Collegiate Dictionary, all of which define the term to apply more broadly to genital sex acts beyond penile-vaginal intercourse. The court found this broader definition consistent with the legislative intent, in which preventing HIV transmission was the particular spur to replacing the old law with the new one.  Citing statistics from the federal Centers for Disease Control and Prevention website, the court noted that gay and bisexual men “accounted for the majority (67%) of new HIV infections” in 2014, and as of 2013 made up a majority of the people living with HIV infection in the United States.

Thus, adopting the broader interpretation produces a reasonable result, as it “gives full effect to the Legislature’s intent to reduce the incidence of HIV.”

Furthermore, looking to other statutory provisions as a guide to meaning is inappropriate unless “the provision to which a court looks” is “related to the provision lacking a definition.” The court found that the incest provision relied upon by the 2nd District is not so related.  The legislative concern there is with “the prevention of pregnancies which may involve a high risk of abnormal or defective offspring” when the man and the woman are closely related to each other.  That policy concern is not present when both parties to the sexual act are men or are women.

The court also found that the 2nd District had neglected to look at some more recent Florida cases that had defined “sexual intercourse” to apply to two males in other contexts.  And the court rejected application of the “rule of lenity” by which criminal statutes are strictly construed, finding that “the term ‘sexual intercourse’ is commonly understood to broadly refer to various sexual acts – including the sexual act at issue here.  In certain contexts, the term refers specifically – that is, more narrowly – to penile-vaginal intercourse.  But in the context of [the sexually transmitted disease statute], ‘sexual intercourse’ unambiguously denotes sexual conduct that includes acts of oral and anal intercourse,” wrote Justice Canady.


Missouri Appeals Court Reverses Conviction of HIV-Infected College Wrestler

Posted on: December 21st, 2016 by Art Leonard No Comments

The Missouri Eastern District Court of Appeals has reversed the jury conviction of Michael L. Johnson, an HIV-positive African-American man, on felony charges of recklessly infecting another with HIV and exposing others to HIV, for which he was sentenced to 30 years in prison. The appeals court found in a December 20 ruling that the prosecution had violated court discovery rules by ambushing Johnson at trial with selective excerpts from recordings of telephone conversations he had in jail, thus depriving Johnson of a fair trial.  The St. Charles County prosecutor now has to decide whether to retry Johnson, who was convicted in May 2015 for events that occurred in 2013.  State of Missouri v. Johnson, No. ED103217.

Johnson, a championship high school wrestler from Indianapolis, moved to St. Charles, Missouri, in 2012 to attend Lindenwood University, where he had had been recruited for the wrestling team. On January 7, 2013, he went to the student clinic complaining of perianal warts and seeking STD testing.  He tested positive for gonorrhea and HIV.

A few weeks later, Johnson had unprotected oral and anal sex with another Lindenwood student whom he had met through social media. That student testified at the trial that Johnson had not disclosed he was HIV-positive.  The student experienced symptoms a few weeks later, went to a hospital emergency room, and was diagnosed with gonorrhea and HIV.  A follow-up HIV test led doctors to inform the student that his HIV infection was recent.  The student testified that before having sex with Johnson he had not had sex with anyone else for a year, so Johnson was the only person who could have infected him.

The student contacted Johnson and they met in Johnson’s dorm room, where the student told Johnson he was HIV-positive, and they had sex again. The student maintains that Johnson still did not disclose that he was HIV positive.  When the student noticed that Johnson was still using social networking and “dating internet applications” but was not mentioning in his profile that he was HIV-positive, the student contacted the St. Charles Police Department, whose investigation turned up five other people who had sex with Johnson, all of whom claimed Johnson had not disclosed to them that he was HIV positive.

In the subsequent jury trial, Johnson admitted that he learned of his HIV diagnosis on January 7, 2013, so the critical issue at trial was whether he disclosed his HIV status to his sexual partners. Johnson testified that he had informed each of them before engaging in sex, except for one man with whom he had sex only in November 2012, before he learned of his infection.  Prosecutors impeached Johnson’s testimony by playing excerpts from the jail telephone recordings, in which Johnson had stated that he was worried that people would not want to be his friend if they learned about his HIV status, that he was “pretty sure” he had disclosed his HIV status to his sexual partners, and that he was “unsure” about how to tell people about his status.  This summary in the court’s opinion of the prejudicial statements extracted from more than 24 hours of telephone calls does not indicate who the other parties were on the calls, and whether all three statements came from the same call.

Johnson’s lawyer had objected to the introduction of these edited recordings, which were only revealed to her the Monday morning of the trial, May 11, 2015. The prosecutor claimed that the information had been sent to the lawyer’s office the previous Friday, but that was a holiday and the law office was closed.  A year and a half earlier, on November 26, 2013, the defense had filed a request for discovery as authorized by court rules, asking for “any written or recorded statements and the substance of any oral statements made by the defendant” that was relevant to the charges against him.  The court rule says that such requests shall be answered within ten days after the prosecutor receives the request, and imposes an ongoing duty on the prosecutor to supplement its response if it acquires new relevant information, and the disclosure duty extends beyond information known to the prosecutor to include any information that might be obtained through reasonable inquiry.

It is, of course, common practice that jails record prisoner calls and that prosecutors can get access to the recordings. In this case, there were more than 24 hours of recordings of Johnson’s phone calls made while he was in jail, two calls from as far back as October 17, 2013, just weeks before the defense filed its discovery request, and one call from just a few days before the request.  Yet the state waited a year and a half to turn this information over, and even then playing games to avoid defense counsel learning of them until the morning of the trial by sending them over on a holiday before a weekend.  Defense counsel objected, but the trial judge reserved ruling on the objection, since the evidence would not be presented until later in the trial, and then the judge overruled the objection, stating that the defense had a few days in possession of the recordings and so was not prejudiced.

The jury convicted Johnson on every count except the charge involving the man with whom he had sex in November 2012 – an instance of classic overcharging by the prosecution, since Johnson did not know he was HIV positive at the time. He was sentenced to 30 years for infecting the other student, 14 years for recklessly exposing another person, and 5-1/2 years on each of three charges of “attempting” to expose other people, with the sentences to run concurrently.

Johnson raised two issues on appeal. First, he challenged the fairness of his trial because of the state’s “ambush” tactics with the recording.  Second, he claimed that the prison sentence was “grossly disproportionate” to the offenses, in violation of the 8th Amendment ban on cruel and unusual punishment.  Because the appeals court agreed with his first issue, it did not rule on the 8th Amendment claim.

The State candidly admitted on the record before the appeals court that it “intentionally withheld the recordings from the defense to gain a strategic advance,” wrote Presiding Judge James M. Dowd for the appellate panel. “The State explained: ‘If we disclose to the defense they’ll tell their client.  And I’m not impugning anyone’s integrity, I’d do the same thing: Hey, they’re listening to your conversations, shut up.  So we don’t disclose them until towards the end.”

Judge Dowd pointed out that the state’s strategy was exactly what the discovery rule was intended to avoid. “We find that this discovery violation likely resulted in Johnson’s genuine surprise at learning on the first day of trial that the State had prepared to use the untimely-disclosed recordings against him, since at no earlier point had Johnson learned that the State [that is, the prosecutors]—and not just the county jail – had the recordings in its possession, nor had he learned that the State planned to use them at trial.”

The court rejected the State’s argument that because everybody knows that their prison phone calls are being recorded, there is no fundamental unfairness in failing to disclose them before trial. Judge Dowd pointed out that there were prior Missouri court rulings directly addressing this point.  It is not enough to show that the defendant knows the jail is recording the phone conversations. The relevant knowledge would be that the prosecution has the recordings and is planning to use them at trial, with an opportunity for the defense to learn what recordings were going to be used.  Furthermore, the court rejected the trial judge’s conclusion that the problem was cured because a few days went by before the recordings were offered in evidence.

“Johnson was forced to make critical strategic decisions – such as whether to seek to avoid trial by pursuing a plea bargain, whether to waive his right to silence and testify, and what particular defense to raise – without being timely furnished highly prejudicial, properly-requested discovery,” wrote Dowd. “The State had more than a year and half to prepare its case with the benefit of its chosen excerpts of Johnson’s jail phone recordings but failed, in violation of Rule 25.03, to disclose to Johnson before the morning of the first day of the trial any part of the more than 24 hours of recordings. Even as an inadvertent mistake, such untimely disclosure would be suspect under Missouri law, but here the State admitted that it purposely withheld the recordings from Johnson so as not to tip off the defense counsel that her client was being recorded making incriminating statements.”

Dowd said that the “pretty sure” statement was “profoundly prejudicial” when it was used out of context to impeach Johnson’s testimony that he had disclosed his HIV status to his sexual partners. Thus, concluded Dowd, the state’s tactic had likely “prevented Johnson from preparing a meaningful defense – i.e., one that was not sabotaged by the State’s deliberate untimely disclosure of highly prejudicial evidence – and that timely disclosure of the statement would have affected the result of Johnson’s trial.”

Dowd also rejected the argument that Johnson’s counsel had enough time to deal with the recordings during the first three days of trial before Johnson’s testimony. “The solution to the State’s blatant discovery violation should not be to put the defense at an additional disadvantage by forcing the defense to spend its time during trial analyzing improperly-withheld discovery instead of preparing for the next witness, next day of trial, or the other work-intensive matters a trial lawyer must deal with,” wrote Dowd.  This violation, he said, “is inexcusable, should not be repeated, and supports a finding of fundamental unfairness in this case,” calling it a “bad faith strategy” that “clearly was intended to disadvantage Johnson.”  In other words, they were out to get him!

Thus, it was an abuse of discretion for the trial judge to let the State use this evidence, and the conviction was reversed and sent back to the county Circuit Court for a new trial. It is up to the prosecutor to decide whether to go forward.  Since Johnson has served but a small fraction of the 30 year sentence, there may be local pressure to have a new trial.  In light of the evidence, which would be admissible the second time around now that it has been disclosed, it is possible that Johnson will seek to strike a plea bargain for a shorter sentence rather than risk another trial.

In the meantime, this case, which has attracted lots of attention, shows that Missouri’s HIV-exposure law requires reconsideration, especially in light of the developments in medical treatment that have changed the calculus of risk in terms of HIV transmission and the consequences of infection from what they were when the law was passed in 1988. Laws on HIV exposure passed before these medical developments are now inadequately sensitive to evidence that people on PREP may be infected without presenting a risk of transmission, and of course the mortality and morbidity issues have changed drastically since protease inhibitors became part of the standard treatment regimen for HIV in the mid-1990s.

Military Appeals Court Changes Analysis of “Aggravated Assault” HIV Exposure Cases

Posted on: February 24th, 2015 by Art Leonard No Comments

Reversing the conviction of HIV-positive Air Force Technical Sergeant David Gutierrez on charges of aggravated assault for engaging in unprotected oral and vaginal sex with women during “swingers” parties, the U.S. Court of Appeals for the Armed Forces ruled on February 23 in United States v. Gutierrez, No. 13-0522, that statistics about the likelihood of transmission of HIV under such circumstances would not support a conviction under Article 128(b) of the Uniform Code of Military Justice, which applies when a person “commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm.”

Gutierrez was convicted of “aggravated assault” and other charges at a court martial presided over by Military Judge William C. Muldoon, Jr., who applied a 1993 decision, United States v. Joseph, 37 M.J. 392 (C.M.A. 1993), which held that “the question is not the statistical probability of HIV invading the victim’s body, but rather the likelihood of the virus causing death or serious bodily harm if it invades the victim’s body.  The probability of infection need only be more than merely a fanciful, speculative, or remote possibility.”  Thus, Muldoon rejected Gutierrez’s contention that the statistics presented in the court martial would not support a conclusion that his conduct was “likely” to cause death or grievous injury to the women with whom he was having sex.

The court of appeals, bowing to criticism of its prior reasoning as having become outmoded as a result of medical advances and better knowledge about how HIV is transmitted, agreed that if HIV transmission is highly unlikely as a statistical matter, then it cannot be said that the defendant had acted in way that was “likely to produce death or grievous bodily harm.”

Clearly, any sexual activity using barrier contraception (condoms) could not constitute an aggravated assault on this reasoning, in light of the very high rate of effectiveness of condoms in preventing transmission.  The expert testimony presented in this case, wrote Judge Baker, “makes clear that condom use protects against the transmission of bodily fluids in ninety-seven to ninety-eight percent of cases, and that any transmission risk only obtains in the transmission of bodily fluids.”  The government’s own expert witness had testified that the risk of HIV transmission  in a case of “protected vaginal sex was only ‘remotely possible.'”  As such, it could hardly be called “likely.”

As to unprotected vaginal sex, the same expert put the risk of transmission at 20 out of 10,000, or about 1-in-500, which was described as the “high-end” statistic.  Based on this number, the court concluded that “HIV transmission is not the likely consequence of unprotected vaginal sex.  This is so because, in law, as in plain English, an event is not ‘likely’ to occur when there is a 1-in-500 chance of occurrence.  As a result, Appellant’s conviction for aggravated assault by engaging in unprotected vaginal sex is legally insufficient” to support the conviction.

As to unprotected oral sex, the expert testimony said that the chance of transmission through that mechanism was “almost zero.”  Under the court’s new reasoning, that testimony would not support a conviction for aggravated assault.

The court also rejected the government’s argument that Gutierrez could be convicted of “attempted aggravated assault,” since that would require proof of “specific intent to commit the offense of afflicting “grievous bodily harm” on the victim.  The court hypothesized that an HIV-positive person who filled a syringe with his own blood and injected it into another person could be convicted of this offense.

However, the court held that David Gutierrez was guilty of the lesser-included offense of simple assault, which requires that the accused “did bodily harm” which includes “any offensive touching of another, however slight.”  Since the women involved testified that they would not have consented to unprotected sex with Gutierrez had they known he was HIV-positive, they did not give “informed consent” based on awareness of the risks involved.  “Here, Appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent,” wrote Judge Baker.  Thus, Gutierrez “is therefore guilty of assault consummated by battery, and we affirm that offense as a lesser included offense of aggravated assault.”

The court stated that it was expressly overruling U.S. v. Joseph and reversing the aggravate assault conviction, but affirming the conviction on other charges (including adultery, in that these swingers parties in which Gutierrez and his wife participated included other married couples and everybody was mixing it up with each other’s spouses).  The case was sent back to the lower court to either reassess the sentence originally imposed or to hold a new sentencing hearing. Recognizing that this case has dragged on for a very long time, the court also charged the Air Force Court of Criminal Appeals with considering whether Gutierrez’s due process rights were violated “by the facially unreasonable appellate delay that occurred in this case.”

This ruling raises important issues outside the military context, since civilian courts have also imposed severe penalties in some cases upon HIV-positive defendants comparable to Gutierrez, using much the same reasoning.  It is noteworthy, however, that in the past few years courts have started to become much more sensitive to the developing knowledge about transmission risks, especially when HIV-positive people are compliant with anti-retroviral therapy rendering their viral load undetectable or are using condoms to block transmission.  This military case involved a “swingers” club that, so far as the court’s decision went, didn’t involve same-sex contact or anal sex.  It will be interesting to see whether the military courts will be consistent in their reasoning if they are presented with cases involving gay service members who credibly testify that they are compliant with treatment regimens that have sharply reduced their infectiousness to the vanishing point.