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Having Consensual Sex While HIV+ Not a Crime, Affirms Court

Having Consensual Sex While HIV+ Not a Crime, Affirms Court

A HIV positive man who had consensual unprotected sex with another man was wrongly prosecuted under Minnesota’s communicable diseases law, the state’s supreme court has unanimously upheld.

The case centers on Daniel James Rick, 32 and from Minneapolis, who was diagnosed as HIV positive in 2006. Since that time, Rick has had sexual intercourse with a number of men, including a man identified to the court as D.B. who in October of 2009 also tested positive for HIV.

D.B. later accused Rick of knowingly infecting him without disclosing his HIV status. State prosecutors duly launched criminal proceedings against Rick.

In 2011, a jury found in Rick’s favor on one count saying they believed he had disclosed his HIV status and so was not guilty of, in the words of the Minnesota statute, “sexual penetration with another person without having first informed the other person” of an HIV positive diagnosis.

However, the jury found Rick guilty of a felony first degree assault because, county prosecutors contended and the jury agreed, Rick had still violated State Statute 609.2241 under a subdivision that criminalizes knowingly transferring HIV through bodily fluids and contaminating medical supplies. This ruling was appealed.

This week, the Supreme Court of Minnesota upheld an appeals court ruling overturning this verdict, finding unanimously that the statute was misapplied because that particular aspect of Minnesota’s communicable diseases law, while hard to navigate, only applies to people who have knowingly infected the blood supply or other such acts and does not apply to private consensual sex.

In a 16 page decision, the state’s supreme court acknowledged that the particular 1995 statute is difficult to read, but they found the legislature’s intent at the time of passing the law was that the subdivision only be applied in circumstances of a direct assault on medical supplies (such as blood or sperm), saying:

Accordingly, we resolve the ambiguity in Minn. Stat. § 609.2241, subd. 2(2)by concluding that subdivision 2(2) applies only to the donation or exchange for value “of blood, sperm, organs, or tissue, except as deemed necessary for medical research or if disclosed on donor screening forms.” We acknowledge that the communicable-disease statute presents difficult interpretation issues and that the Legislature may have, in fact, intended something different. If that is the case, however, it is the Legislature’s prerogative to reexamine the communicable-disease statute and amend it accordingly.

This finding has been hailed by anti-discrimination advocates as an important affirmation against hounding those with HIV, with Christopher Clark, Senior Staff Attorney for Lamda Legal, quoted as saying:

We’re relieved that the Minnesota Supreme Court has ruled in favor of liberty and justice, rejecting the government’s misapplication of its communicable disease law to the facts of this case. The State should not dictate with whom and how people choose to engage in intimate sexual relations.

Despite the state supreme court’s ruling, Hennepin County Attorney Mike Freeman is on record as saying the state will continue to explore ways to prosecute Rick as a threat to “public safety” for what Freeman dubs Rick’s “predatory” behavior.

The AP relates that there are two other criminal cases against Rick in Hennepin County and two from out of the county that have until now been on hold pending the supreme court’s decision. Now that the appeal has been dealt with, those other cases can proceed.

The cases relate to several allegations against Rick, at least one of which involves an alleged date rape.

Whether Rick is ultimately absolved or his accusers vindicated, the state supreme court’s ruling serves to reinforce that Minnesota State must properly apply its laws and not allow bias surrounding HIV infection to cloud any future criminal cases against the defendant.

Currently, 32 states and two United States territories have as part of their criminal statutes language that criminalizes perceived exposure to HIV instead of focusing on the actual transmission of HIV.

Moreover, 13 states have specific laws targeting HIV positive persons that make spitting or biting a felony, this despite the fact that saliva cannot of itself transmit HIV.

Advocates are calling for the repeal of such laws as, they argue, they perpetuate and indeed serve to sanction stigma against HIV sufferers and are ripe for legal misuse, as Rick’s while admittedly murky case has served to show.

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64 comments

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2:06PM PDT on Sep 1, 2013

If the person knew of their partners HIV positive status and consented to unprotected sex despite that knowledge, it would seem to fall under the legal category of "assumption of risk." Stupid certainly, but people can chose to engage in stupid dangerous behavior.

4:03AM PDT on Sep 1, 2013

Whatever happened to personal responsibility? Seems to me the article is focusing on the wrong thing. Everyone should have a responsibility to ensure the safety of others around them, when it's within your control.

Having unprotected sex knowing you have any STD is a callous and unethical act. How hard is it to get a condom?

12:19AM PDT on Sep 1, 2013

Noted

5:24PM PDT on Aug 30, 2013

It's just bloody mental and thoughtless and downright wrong though. Just because you have hiv/aids you should not go around killing other people with it because you're angry.

2:46PM PDT on Aug 30, 2013

What is key here is that the so-called victim chose to be exposed via consensual activity after disclosure and thus cannot blame someone else because of later regrets for the consequences of their choice. It also illuminates how many laws born of fear that have long been obsolete remain on the books to reduce the rights of those with HIV without justification.

5:04AM PDT on Aug 30, 2013

Completly unf***ingbeliable!!

5:31PM PDT on Aug 29, 2013

Disgusting. The lowlife has sentenced the guy to death, and he walks?
Any doubt should be on the victim's side in a case like this. Who in their right mind would have sex with someone with HIV??


12:42PM PDT on Aug 29, 2013

Rick is a slime-ball for even consenting to unprotected sex knowing he was infected. Unfortunately, being a slime-ball isn't illegal.

11:42AM PDT on Aug 29, 2013

t

12:12AM PDT on Aug 29, 2013

Probably, this is "old fashion" for this days but know your potential partner before sex, make consensual agreement & use condom because never say never... otherwise this is russian roulett. Be responsible to you & your partner.

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