The human immunodeficiency virus (HIV) is a serious disease that causes progressive failure of the body’s immune system to permit other infections and cancers to thrive and cause death. There is no known cure and those infected will have to engage in lifelong treatment to avoid development into full-blown AIDS. HIV is a sexually transmitted infection that can be passed on through transfer of blood, semen and vaginal fluids. An unsuspecting sexual partner can contract the disease even from only one encounter with an infected person.
Due to the ease of transmission through sexual intercourse and the deadly nature of the virus, Michigan law requires that any person infected with HIV must inform their sexual partner prior to sexual intercourse so that he or she can make an informed decision whether or not to participate. Failure to communicate this information prior to sexual contact can result in significant criminal liability.
- “A person who knows that he or she has the human immunodeficiency virus (HIV) who engages in anal or vaginal intercourse with another person without having first informed the other person that he or she has HIV with the specific intent that the uninfected person contract HIV is guilty of a felony.” MCL 333.5210(1). The penalty can include up to four years in state prison. MCL 777.13k.
- “A person who knows that he or she has HIV who, without having first informed the other person that he or she has HIV, engages in vaginal or anal intercourse, and transmits HIV to an uninfected person causing that person to become HIV positive, acts with reckless disregard and is guilty of a felony.” MCL 333.5210(2). The penalty can include up to four years in state prison. MCL 777.13k.
- “A person who knows that he or she has HIV who, without having first informed the other person that he or she has HIV, engages in vaginal or anal intercourse, and who acts with reckless disregard but does not transmit HIV, is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both.” MCL 333.5210(3).
In People v Jensen, 222 Mich App 575; 564 NW2d 192 (1997), the defendant was diagnosed as being HIV positive on October 12, 1990. She was subsequently found to be legally incapacitated by reason of mental deficiency and placed in an adult foster care home by her legal guardian. The foster care home supervisor regularly spoke to the defendant about her HIV status and the legal responsibility to inform sexual partners of her infection, but she “openly expressed her dislike for this responsibility and her reluctance to inform her partners of her HIV status.” As a result, she engaged in unprotected sex with two other individuals and bragged about the same to the foster care home employees and her legal guardian. She was subsequently arrested, charged and convicted of three counts of having the knowledge that she was HIV positive and engaging in sexual penetration without informing her partner of her HIV status, and was sentenced to 32 months to 48 months in state prison.
The defendant challenged her conviction on the grounds that the statute is unconstitutional because it infringes on her right to privacy and free speech (and to be free from compelled speech). The Michigan Court of Appeals declined to hear that issue since it was not preserved by defense counsel at the trial level. The defendant then claimed that her conviction was defective because the trial court refused to allow her to present the defenses of consent and duress. Specifically, she argued that she lacked the basis to consent due to her diminished capacity. The Michigan Court of Appeals disregarded this argument and found that the evidence of her guilt was overwhelming at trial, so these defenses did not apply. It was clear from the testimony by her doctor that she clearly had knowledge of her HIV status and, nevertheless, failed to inform her partners of the same. The Michigan Court of Appeals upheld her convictions.
The case proceeded for consideration to the Michigan Supreme Court. In lieu of granting leave, the Supreme Court ordered: “[T] he judgment of the Court of Appeals is vacated in part and the case is remanded to the Court of Appeals for further consideration and decision on the merits of the question whether M.C.L. § 333.5210; MSA 14.15(5210) is constitutional. In all other respects, leave to appeal is denied because the Supreme Court is not persuaded that the questions presented should be reviewed.” People v Jensen, 456 Mich 931; 575 NW2d 552 (1998).
On return to the lower court, the Michigan Court of Appeals found in People v Jensen, 231 Mich App 439; 586 NW2d 748 (1998) that the HIV notice statute “is neither constitutionally overbroad nor violative of defendant’s rights to privacy or against compelled speech.”
Regarding being overbroad, the Michigan Court of Appeals found there is no overbreadth because the statute does not sweep into its inclusion both protected and unprotected conduct. The defendant’s behavior fell into the confines of the statute and “[t]he evidence established that she understood the dangers of having unprotected sexual relations with another person and that she had a duty to warn them, but she disregarded both.” Jensen, 586 NW2d at 752. The evidence also established that defendant consensually engaged in sexual relations with the victim and purposefully withheld the fact she was HIV infected because she did not want to “kill the relationship,” and wanted people to like her.” Id. This is exactly the situation that the Legislature intended to encompass when it created the statute.
The defendant also argued that the statute should be rendered unconstitutional because it does not require the intent, or mens rea, to cause harm as required in criminal statutes. The Michigan Court of Appeals disagreed, finding that even though there is no express intent requirement, “we presume that the Legislature intended to require that the prosecution prove that the defendant had a general intent to commit the wrongful act, i.e., to engage in sexual penetration with another person while failing to disclose that the defendant has AIDS of is HIV infected.” Jensen, 586 NW2d at 755. It is NOT a strict liability offense “because if a defendant admits being HIV infected and the other person consents to the physical contact despite the risks associated with such contact, there is no criminal liability.” Id. “Finally, the statute requires that the culpable mental state have a causal relationship to the harm that the statute seeks to prevent, i.e., requiring disclosure of being HIV infected will reduce the unwitting spread of AIDS and HIV-related diseases.” Id. It is clear what the defendant was required to do before incurring criminal liability.
In addition, the Michigan Court of Appeals found that the statute does not violate her right to privacy. The judges found “that defendant’s ostensible right to withhold disclosure of her HIV status from her sexual partners is not an absolute right when balanced against the state’s “unqualified interest” in preserving human life.” Jensen, 586 NW2d at 756. The constitutional guarantee of personal privacy has been extended to procreation, contraception, family relationships, child rearing and child education, but there is no precedent for required HIV disclosure to sexual partners falling into any of those categories. “To the contrary, [the court defers] to the state’s overriding, legitimate, and compelling interest in preserving the life of its citizens, thereby permitting it to preclude defendant from remaining silent and knowingly exposing others to an incurable disease.” Id. The right to privacy does not shield all private sexual acts from state regulation, and the Legislature has clearly shown a compelling state interest in passing the statute to contain the spread of a lethal disease. The Court of Appeals found that the statute “does not unconstitutionally deprive defendant of her right to privacy regarding the fact that she was HIV infected, and that any right to privacy involving her HIV infection is subordinate to her sexual partner’s right to either avoid sexual penetration or to engage in sexual penetration only after being informed that defendant was HIV infected.” Jensen, 586 NW2d at 758.
Finally, the Michigan Court of Appeals found that the statute does not violate her right against compelled speech. This is essentially an argument of a “negative First Amendment right” of non-expression, meaning that her rights are violated” because it compels her to disclose information about which she would otherwise wish to remain silent.” Jensen, 586 NW2d at 758. This is a valid right that was infringed, but to be constitutional there must be a finding that the societal interest in disclosure outweighs the governmental intrusion into the individual’s privacy interest. “Although the statute may significantly infringe defendant’s individual interests in remaining silent, the state’s interest to compel her to disclose that she is HIV infected before engaging in sexual penetration is undeniably overwhelming.” Jensen, 586 NW2d at 759. In addition, the intrusion is minimized because the defendant was not required to make a public announcement to a crowd. “[R]ather, it requires private disclosure only to those who are immediately in danger of exposure to the virus because they are contemplating the opportunity to engage in sexual penetration with defendant.” Id. “Accordingly, in weighing the infringement of defendant’s negative First Amendment right against compelled speech by requiring private disclosure that she is HIV infected against the magnitude of the state’s interests in controlling the spread of this currently incurable disease, the state’s interests outweigh defendant’s right against compelled speech.” Id.
The defendant’s convictions of all three counts were upheld.
Although the statute of intercourse with specific intent or reckless disregard to infect with HIV is valid and constitutional, there are still defenses that can be asserted during a criminal proceeding:
- LACK OF KNOWLEDGE: There are many people today who are going about their business while HIV positive without even knowing it. In the early stages, the carrier may be asymptomatic and can remain so until it develops into AIDS. The absence of a formal diagnosis can be a total defense to the crime if the accused had no other reason to know that he or she was infected.
- DISEASE WAS MEDICALLY SUPPRESSED: “A person who knows that he or she has HIV who is adherent with the treatment plan of an attending physician and has been medically suppressed per accepted medical standards is not acting with reckless disregard.” MCL 333.5210(4). The competent expert testimony of the medical doctor will be required to assert this defense.
- LACK OF CONSENT TO SEXUAL INTERCOURSE: A person cannot act with “specific intent” or “reckless disregard” if there is no consent to the sexual act. If the defendant was raped or drugged and then sexual intercourse occurred without permission, then the defendant cannot be held liable to the requirements under this statute.
A charge of intercourse with specific intent or reckless disregard to infect with HIV is serious and will not be taken lightly by prosecutors and judges. Many jurists will conclude that the defendant just gave the unwitting partner a death sentence, so the punishment in return will be very severe. A skilled criminal defense lawyer in your corner can assert all of the defenses available to you at law to obtain the best possible outcome. You only get one opportunity to properly defend against these serious charges because a conviction will change your life forever. Although there is no requirement for registry on Michigan’s Sex Offender Registry upon conviction, the threat of incarceration in state prison is very real. Do not settle for less than the best defense possible!
If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
