Ebola’s been in the news lately, with several infected individuals on American soil. New York and New Jersey have begun to quarantine individuals arriving from West Africa who have had contact with infected people, and a nurse subjected to quarantine threatened a legal challenge. So, what’s the law? And what are the potential criminal law implications? Continue reading
Tag Archives: communicable diseases
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.
I’ve been a little under the weather this week, so I thought I’d do a post about communicable diseases.
One question that comes up frequently is whether an arrestee can be compelled to be tested for a communicable disease when an officer believes that he may have been exposed to a communicable disease carried by the arrestee. For example, suppose that an officer attempts to arrest a suspect in a residential burglary. The arrestee resists, and bites the officer during the scuffle. The officer ultimately subdues the arrestee and brings him to the magistrate’s office to be charged. The officer believes that the arrestee may be HIV positive — he’s a known IV drug user, and the “word on the street” is that he’s infected. The officer is concerned that the biting incident may have transferred the virus, and wants the arrestee tested. What to do?
First, the officer should alert the magistrate to the situation. Under G.S. 15A-534.3, “[i]f a judicial official conducting an initial appearance or first appearance . . . finds probable cause to believe that an individual had a nonsexual exposure to the defendant in a manner that poses a significant risk of transmission of the AIDS virus or Hepatitis B by such defendant, the judicial official shall order the defendant to be detained for a reasonable period of time, not to exceed 24 hours, for investigation by public health officials and for testing . . . if required by public health officials.” The magistrate may wish to consult with public health officials in deciding whether a particular set of circumstances poses a “significant risk of transmission,” as noted on page 25 of my colleague Jessie Smith’s excellent paper on criminal procedure for magistrates. If magistrate makes the required finding of probable cause, she should use side two of form AOC-CR-270 to effectuate the hold, which trumps the defendant’s right to pretrial release for 24 hours or until the public health officials have completed their work, whichever comes first.
Note that the magistrate has no authority to require the defendant to be tested. That decision belongs to the public health officials, who the magistrate should contact immediately upon ordering a hold if she has not already done so. The public health officials will then conduct their own investigation, under G.S. 130A-144, and will determine whether testing is warranted. If so, testing is a “communicable disease control measure,” with which the defendant must comply. (If he doesn’t, he can be charged with a Class 1 misdemeanor under G.S. 130A-25.) The results of the test may be disclosed to the officer under 10A NCAC 41A.0202(4) (the cited provision concerns HIV, but there’s a parallel one for Hepatitis B). If the public health officials determine that testing is not warranted, they will so notify the magistrate, who must dissolve the hold on the defendant.
What if the officer forgets to tell the magistrate, or doesn’t get worried about the situation until the initial appearance has passed? Given that G.S. 15A-534.3 refers to “an initial appearance or first appearance,” can the officer simply tell the district court judge about the situation at the defendant’s first appearance and ask the judge to impose a hold on the defendant? I think so, although I assume that the reference to “first appearance” means a statutory first appearance under G.S. 15A-601, which applies only to defendants charged with felonies. Many districts conduct non-statutory “first appearances” for misdemeanor defendants, while others simply set misdemeanor cases for the arresting officer’s next court date, which becomes the defendant’s de facto first appearance. It isn’t clear whether a judge in either of the latter circumstances has the authority to order the defendant held.
If the case has already progressed beyond the first appearance when the issue arises, or if the judge conducting a nonstatutory first appearance concludes that he lacks the authority to order a hold, the defendant cannot be held for possible testing under G.S. 15A-534.3. But that doesn’t mean that the defendant can’t be tested. The health department’s authority to impose communicable disease control measures is independent of the hold. So the officer can contact the public health department directly and ask it to investigate. Although sometimes the officer, a police attorney, or a prosecutor will request a court order requiring testing, there’s no clear authority for such an order, and the better practice is simply to contact the public health department.
In our example, though, the officer is probably out of luck. According to my colleague Jill Moore, an expert in the area of public health law, many public health officials believe that the risk of transmission from an arrestee’s saliva to an officer’s bloodstream during a bite is extremely low. (It would be different, apparently, if the officer had bitten the arrestee and drawn blood, but I’m guessing that doesn’t happen very often.)