Suppose that A, who has HIV and knows it, has unprotected sex with B, who doesn’t have HIV. A doesn’t warn B. Has A committed a crime?
Yes. At a minimum, A has failed to abide by communicable disease control measures. Under G.S. 130A-144(f), “[a]ll persons” are required to comply with control measures. The control measures for the most common serious communicable diseases are listed in 10A NCAC 41A.0201 et seq. (The Administrative Code is available online here.) The control measures for HIV, which appear in 10A NCAC 41A.0202, require infected individuals both to warn their sexual partners of their status and to use condoms during sex. Failure to comply with control measures is a misdemeanor, sentenced outside of structured sentencing. G.S. 130A-25(a)-(b). Note that sexual contact other than “intercourse” isn’t mentioned in the Code, nor is some non-sexual behavior that might involve some risk of transmission.
But has A has committed a more serious offense? Apparently, “ states currently have statutes [specifically] criminalizing behavior that risks the transmission of HIV or AIDS.” James B. McArthur, Note, As the Tide Turns: The Changing HIV/AIDS Epidemic and the Criminalization of HIV Exposure, 94 Cornell L. Rev. 707 (2009). However, there is no such statute in North Carolina. Leslie E. Wolf & Richard Vezina, Crime and Punishment: Is There a Role for Criminal Law in HIV Prevention Policy?, 25 Whittier L. Rev. 821 (2004). But perhaps A could be charged under the general criminal law. My colleague Bob Farb discussed this idea in the Prosecutors’ Trial Manual, listing the possible charges as follows:
For example [a prosecutor might charge], assault with a deadly weapon (the virus being the deadly weapon); assault with a deadly weapon inflicting serious injury (if the victim is infected); attempted first-degree murder or other felonious assaults that contain the “intent to kill” element (of course, proving the specific intent to kill may be difficult).
Robert L. Farb, Prosecutors’ Trial Manual 165 (4th ed. 2007).
As Bob observed, there are no reported North Carolina appellate cases on point. (Attempted murder and assault with a deadly weapon charges were brought in State v. Monk, 132 N.C. App. 248 (1999), a case in which an HIV-positive defendant raped, but apparently did not infect, a twelve-year-old; but the charges were dismissed at the close of the state’s case and the propriety of the charges was not at issue on appeal.) There are, however, several cases from around the country that are on point and that support such charges on appropriate facts. See, e.g., State v. Neatherlin, 154 P.3d 703 (N.M. Ct. App. 2007) (affirming conviction for assault with a deadly weapon where the Hepatitis C-infected defendant bit the victim and told the victim “that he hoped she would die”); People v. Dembry, 91 P.3d 431 (Colo. Ct. App. 2003) (affirming trial jury’s conviction of reckless endangerment where HIV-positive defendant sexually assaulted a foster child in his care); Hancock v. Commonwealth, 998 S.W.2d 496 (Ky. Ct. App. 1998) (holding that allegations that HIV-positive defendant repeatedly engaged in sexual intercourse with the victim over a period of two years provided sufficient basis for charge of wanton endangerment); United States v. Bygrave, 46 M.J. 491 (U.S. Armed Forces 1997) (stating that “[t]his Court has made clear on numerous occasions that an HIV-positive service member commits an aggravated assault by having unprotected sexual intercourse with an uninformed partner,” and affirming an assault conviction even where the defendant’s sexual partner knew of his infection and consented to sex); Commonwealth v. Cordoba, 902 A.2d 1280 (Pa. Super. Ct. 2006) (holding that an HIV-positive defendant may have placed the victim in danger of serious bodily injury sufficient to constitute reckless endangerment when he engaged in unprotected oral sex with her five or six times); State v. C.J., 2002 WL 31059244 (N.H. Super. Ct. May 23, 2002) (unpublished) (refusing to dismiss assault charges based on similar conduct; the New Hampshire assault statute in question expressly applies to those who “[r]ecklessly cause bodily injury to another”); Harman v. Commonwealth, 2009 WL 362126 (Va. Ct. App. Feb. 17, 2009) (unpublished) (affirming conviction for assault and battery where hepatitis C-positive defendant cut his own hand, then shook hands with the victim).
To sum up, in some instances, a defendant who knowingly exposes another to a communicable disease can be charged with the misdemeanor offense of failing to comply with control measures. Whether more serious charges are possible is unsettled, though out-0f-state cases suggest that the answer may be yes, particularly in egregious cases. Finally, just a reminder that I blogged previously about some of the issues that arise when officers are exposed to communicable diseases in the course of their work.