The New York Court of Appeals, the state’s highest court, ruled 4-1 on February 19 that a Syracuse (Onondaga County) trial judge had appropriately granted a defendant’s motion to reduce charges against him from felony to misdemeanor reckless endangerment where the defendant had apparently transmitted HIV to another man by engaging in unprotected anal sex without disclosing his HIV status, reassuring his sex partner that it was “okay.” People v. Williams, 2015 WL 685818. The defendant also faces a misdemeanor assault charge. The court’s decision is premised on its conclusion that evidence presented to the grand jury would not support the conclusion that the defendant acted with “depraved indifference to human life.”
According to the court’s statement of the facts, the victim and Terrance Williams became friends in July 2010, and their relationship became sexual later in the summer “when they engaged in anal sexual conduct.” The first few times they used condoms, but eventually they had unprotected sex. “The first time this happened,” wrote the court, “the victim reached for a condom only to have defendant take the condom away from him,” assuring him that it was “safe for them to have unprotected sex.” The men had previously conversed several times about HIV and “the need to be careful to avoid infection.” In October 2010, Williams told his partner that Williams might be HIV-positive, because a prior sexual partner with whom he had unprotected sex had been diagnosed. Williams urged his partner to get tested, and shortly after this conversation their relationship ended. In February 2011, the victim experienced symptoms, got tested, and turned out to be infected. He started on antiretroviral therapy soon thereafter.
In April 2011, the victim received a message through social media from Williams, in which Williams confessed that he had been diagnosed as HIV positive before he and the victim had started having sex, and Williams expressed remorse about having lied to him. “I want to start by saying that I sincerely apologize for giving you HIV,” he wrote. “I made my biggest mistake that night I said I didn’t want to use a condom knowing my status but still being so deep in love with you that I wanted us to be one person. I was selfish and I was more so concerned with my own false happiness than your health.” The victim contacted the police, and this prosecution ensued.
The Onondaga County District Attorney’s office presented the case to a grand jury, which voted to indict Williams on charges of reckless endangerment in the first degree (Penal Law section 120.25) and third-degree assault (Penal Law section 120.00). Reckless endangerment in the first degree is a Class D felony, subjecting a defendant to a potential prison term of up to seven years. Conviction requires a finding that the defendant “under circumstances evincing a depraved indifference to human life … recklessly engages in conduct which creates a grave risk of death to another person.” The third-degree assault charge applies to situations where a defendant intentionally, recklessly or negligently causes a physical injury to another. In cases of negligence, the defendant must have use a deadly weapon or a dangerous instrument. This is a misdemeanor with a maximum prison sentence of a year.
Williams filed a pretrial motion challenging the appropriateness of the first degree reckless endangerment charge, arguing that his conduct did not show depraved indifference to human life and that in light of current medical treatments he did not subject the victim to a “grave risk of death” by transmitting HIV to him. Onondaga Supreme Court Justice John J. Brunetti granted the motion and reduced the charge to second degree reckless endangerment (Penal Law section 120.20), which applies when a defendant “recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.” This is a Class A misdemeanor, carrying the same potential prison sentence as the assault charge.
The prosecutor appealed Brunetti’s ruling, but the Appellate Division, 4th Department, affirmed Brunetti by a unanimous 5-0 panel vote. The panel wrote that the evidence presented to the grand jury would not support a finding of depraved indifference to human life. The court focused on Williams’ explanation why he did not disclose his HIV status (he was “afraid [the victim] would not want to be with” him, and he “loved [the victim] so very much”), and on his action of urging the victim to be tested and then sending his apology. “The fact that defendant encouraged the victim to be tested for HIV indicates that defendant was trying, however weakly and ineffectively, to prevent any grave risk that might result from his conduct. We thus conclude that, while the evidence certainly shows that defendant cared much too little about [the victim]’s safety, it cannot support a finding that he did not care at all,” which would be necessary to support a finding of “depraved indifference to human life.” The Appellate Division panel also found that medical evidence presented to the grand jury countered the conclusion that transmitting HIV today puts somebody in grave risk of death. A doctor had testified that the prognosis for somebody who starts antiretroviral therapy soon after being infected is “outstanding.” The prosecutor applied to the Court of Appeals for review of this decision.
The Court of Appeals abstained from deciding whether HIV infection today creates a grave risk of death, instead focusing on the depraved indifference issue. “Here,” wrote the court, “there is no evidence that defendant exposed the victim to the risk of HIV infection out of any malevolent desire for the victim to contract the virus, or that he was utterly indifferent to the victim’s fate. Without a doubt, defendant’s conduct was reckless, selfish and reprehensible. Under our caselaw, though, this is not enough to make out a prima facie case of depraved indifference.” Since it concluded that the evidence would not support a finding of “depraved indifference,” the Court of Appeals saw no need to rule on whether the medical evidence would show a “grave risk of death.”
Judge Eugene Pigott, Jr., dissented, contending that the evidence presented to the grand jury was sufficient to support the felony charge. “The People’s evidence established that defendant knew at the time he engaged in sexual conduct with the victim that he had been infected with HIV. The victim was unaware of defendant’s condition. Prior to engaging in unprotected intercourse, defendant and the victim had spoken about the need for people to be careful when engaging in unprotected sex, but defendant intentionally failed to tell the victim that defendant had been diagnosed with HIV in December 2009, eight months before he and the victim had met. The grand jury testimony established that when the victim reach for a condom, defendant took it away from the victim, and after the victim had asked defendant four times whether it was safe to engaged in unprotected sex with the defendant, defendant responded that it was ‘okay.’ These facts, viewed in the light most favorable to the People, established at the very least that defendant acted with ‘wanton cruelty, brutality or callousness’ and ‘utter indifference’ to the victim’s fate.” Judge Pigott contended that Williams’ subsequent remorse was irrelevant; his state of mind at the time the acts were committed were the relevant consideration. He argued that it was inappropriate for the court to substitute its judgment for the grand jury on this point. Further, he noted that the grand jury received conflicting evidence on the “grave risk of death issue,” which in his view was “legally sufficient” to establish that element of the charged offense.
The Court of Appeals’ action means that the prosecution will continue with the reduced charge of second degree reckless endangerment and the original third-degree assault charge. Unless Williams is contesting the prosecution’s factual case, it is likely that this case will end with some sort of plea bargain. Reduction of the reckless endangerment charge to a misdemeanor probably increases the likelihood of a plea to a short prison sentence. The district attorney’s appeal through two levels suggests that the office feels strongly enough about this case that it is unlikely they would offer a plea that doesn’t involve prison time.
The court’s ruling raises interesting public policy issues. Surely it is reprehensible for somebody who knows they are infected and capable of transmitting HIV to fail to disclose their status to a sex partner while assuring them that it is “safe” for them to have unprotected anal sex. The question is whether such conduct should be treated as merely a misdemeanor, and whether actual transmission of HIV under those circumstances should also be treated as a mere misdemeanor under the assault statute? Some have argued that criminal law is too blunt an instrument altogether to address issues of sexual ethics in the context of consensual gay sex where undisclosed HIV is involved, while others would undoubtedly be glad to “throw the book” at somebody who affirmatively lies about their HIV status to get a partner for whom they supposedly feel love to submit to a serious risk of permanent infection with HIV and all the complications that might ensue. (Nothing is said in the opinion about using PREP to prevent transmission, so presumably Williams had no basis for arguing that he was not infectious.) This is not one of those outrageous cases where somebody is prosecuted and sentenced to decades in prison for “exposing” another to the virus under circumstances where the chance of transmission is slight, where transmission did not actually take place, and where the defendant did not affirmatively misrepresent his medical condition. Perhaps further fine-tuning of the statutes is needed.