The human immunodeficiency virus -- Acquired Immune Deficiency Syndrome (HIV-AIDS)1 -- is a deadly virus that can live for a few seconds outside the body but is primarily transmitted by unprotected sexual intercourse, infected needles, and by transmission of blood or other bodily fluids. Everyone knows that HIV-AIDS is fatal. There are three major modes of HIV transmission today: (1) sexual contact involving the exchange of semen or vaginal secretions; (2) from mother to fetus or through breast feeding; and (3) between intravenous drug users who share unsterilized needles and syringes. Medical findings support that HIV is not transmitted through casual contact.
In Missouri, homosexual sex accounts for 72% of all HIV transmissions; drug usage 9%; a combination of homosexual sex and drug usage another 9%; heterosexual 6%; blood transfusion 1.5%; and prenatal .5%.
A number of case decisions have recently considered whether an accused can be convicted of felonious assault with intent to kill by spitting, biting, scratching, or throwing blood when the person knew and was aware of his own HIV-AIDS infection.2
According to federal estimates, another American becomes infected every 13 minutes. Eight people in the United States will contract HIV during the time it takes to read this article. Many individuals are being prosecuted and convicted for exposing others to HIV and in rare circumstances for actually transmitting HIV to others.
The Centers for Disease Control reported 548,102 diagnosed cases of AIDS in September, 1996, and estimates that another 1,000,000 people in the United States are already infected with HIV. Missouri has 6,938 pending reported cases, and 4,060 have already died. (Missouri Department of Health, HIV/STD Statistics, September 30, 1996).
Murder is a killing caused by conduct where the accused was acting with either extreme recklessness or purpose or knowledge that a death would occur. Manslaughter is a killing committed with ordinary recklessness or gross negligence, thus involving a lesser degree of culpability than murder. The most obvious difficulty in prosecuting such cases is proving the accused had the requisite mental state. Generally, when someone engages in risky behavior he is not going to be acting with an intent to kill, although there have been a few cases of "revenge sex" where the defendant adopts an attitude toward a sexual partner of "Since I am dying, you are going to die, too."
A practical problem in homicide prosecution of HIV/AIDS carriers is that the person prosecuted is likely to die before the victim. Also, a homicide prosecution is not possible because the "victim" will not have died.
Attempted murder may be easier to prosecute, since a death is not necessary for an individual to be guilty of an attempted crime. Therefore, no causation is required. Still, the state must prove purpose to kill. Missouri eliminates impossibility as a defense.3 The Missouri law, somewhat of a non-traditional statute, was allegedly drafted under the coercion of having something worse if it was not drafted.4
Those who know they are infected with the HIV virus generally accompany their assaults on other people with words and threats. Certainly intent to kill may be inferred from the use of a deadly weapon directed at a vital part of the body.5 If a person knows he is AIDS-infected and that the infection is fatal and intends to inflict others with the disease, he should be charged. But the intent to kill must be "more than a mere tenuous, theoretical, or speculative 'chance' of transmitting the disease."6 There must be proof beyond a reasonable doubt that the accused knowingly took a substantial step toward the commission of murder.
In one case a prisoner spit saliva into a guard's face.7 In another, a prisoner bit and punctured the skin of a prison guard. The court allowed the prosecution for assault with intent to kill,8 since there was "ample evidence . . . that [the] defendant did all that he believed was necessary to infect [the corrections officer]." In another case, a defendant bit and spit at emergency technicians and police who came to his aid after a failed suicide attempt. An officer was hit in the mouth with a blood-soaked wig, causing blood to splatter onto the officer's eyes, mouth, and skin. The defendant's homosexual lover verified that doctors had informed the defendant he had the AIDS virus and it was fatal. Nonetheless, the conviction was reversed on appeal because there was a doubt as to whether the defendant took a "substantial step in a course of conduct planned to culminate in towards his commission of the crime".
An HIV-infected defendant was convicted where he threw his fecal matter in a corrections' officer's face because the officer had been tampering with his mail.9
In another case, an accused told a convenience store clerk, "I'll give you AIDS" before sticking her with a needle attached to a syringe containing a clear innocent liquid. There was a strong possibility the needle was infected with HIV since the defendant pulled it from his pocket and was an intravenous drug user.10 A defendant may not be overcharged with assault with intent to kill unless sufficient facts exist and perhaps should only be charged with intent to do great bodily harm or a lesser type felony. There must be clear evidence the accused not only knew that he was AIDS infected, but also that he had or voiced specific intent to kill.
The problem, especially in assault with intent to murder, is that there must not only be: (1) proof of an assault, but also (2) proof of intent to murder.11 It should be inferred from the natural consequences of the acts.12 Most HIV cases involving violence are prosecuted under traditional criminal statutes, the intent component made easy for the prosecution. In nearly every instance the defendant claimed he had intended to injure, kill, or transmit the virus while engaging in some kind of conduct.13
Within the past few years approximately half the states have adopted some form of HIV-Specific Criminal Transmission Law.14 Missouri criminalizes placing another at risk for HIV transmission regardless of whether the other person has consented to the sexual act while knowing of the infection risk:
§191.677 RSMo., Prohibited acts, criminal penalties. 1. It shall be unlawful for any individual knowingly infected with HIV to: (1) Be or attempt to be a blood, organ, sperm or tissue donor except as deemed necessary for medical research; or (2) Deliberately create a grave and unjustifiable risk of infecting another with HIV through sexual or other contact when an individual knows that he is creating that risk; 2. Violation of the provisions of subsection 1 of this section is a class D felony. 3. The department of health may file a complaint with the prosecuting attorney of a court of competent jurisdiction alleging that an individual has violated a provision of subsection 1 of this section. The department of health shall assist the prosecutor in preparing such a case.
Conclusion
As more and more people become positive for the HIV-AIDS virus, crimes will undoubtedly increase where they intentionally try to infect others, with the ultimate purpose to kill and murder. These cases will take a few years to advance through the court system unless and until a cure is found for AIDS, which appears unlikely. More prosecutions are sure to follow.
Footnotes
1 The abbreviation HIV-AIDS stands for Human Immunodeficiency Virus - Acquired Immune Deficiency Syndrome. This designation is preferred over reference to AIDS alone because the focus upon AIDS (now obsolete) is not representative of the full course of the disease. HIV-AIDS starts with HIV infection and the gradual erosion and suppression of the immune system. After becoming infected with HIV, individuals may remain in an asymptomatic state for up to nine years or longer. Once people develop symptoms and are diagnosed as having AIDS Related Complex (ARC), a label that seems to be falling out of favor, or AIDS, those persons may live with the disease for possibly as long as eight to 10 years. Hence, AIDS can appropriately be considered a chronic disease condition. Report of the Presidential Commission on Human Immunodeficiency Virus Epidemic, 8, 15, (1988); U.S. Department of Health and Human Services, Surgeon's Report on Acquired Immune Deficiency Syndrome, 11-12, 20 (1986). "HIV- Infection" more correctly defines the problem. When HIV enters the body, it damages the immune system, destroying T-helper Lymphocytes, which are necessary for the body to fight disease. Although the virus' destruction of the immune system does not itself lead to death, the infection frequently leads to other infections and malignancies. Most of the infections are "opportunistic infections" that take advantage of the weakened immune system. However, some diseases are caused by the virus itself. HIV spreads when the virus makes contact with the blood stream or mucous membrane of another. Lisa Black, Criminalizing HIV Transmission: New Jersey Assembly Bill 966, 15 Seton Hall, Leg. J. 193 (1994); Lori A. David, The Legal Ramifications in Criminal Law of Knowingly Transmitting AIDS, 19 Law & Psychol. Rev. 259 (Spring 1995); J. Kelly Strader, Criminalization as a Policy Responds to a Public Health Crisis, 27 J. Marshall Law Rev. 435 (Winter 1994).
2 Brock v. State, 555 S.2d 285 (Al Crim. App. 1989) (biting); Scroggins v. State, 401 S.E.2d 13 (Ga. Ct. App. 1990) (biting); State v. Haines, 545 N.E.2d 834 (Ind. Ct. App. 1989) (scratching, spitting, biting and throwing blood); Commonwealth v. Brown, 605 A.2d 429 (Pa. Super. Ct. 1992) (throwing fecal matter); Weeks v. State, 834 S.W. 2d 559 (Tx. Ct. App. 1992) (spitting); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992) (sexual activity); a Cincinnati woman is alleged to have said "Welcome to the world of AIDS" to a man with whom she just had sex. He alleged this statement sent him into a rage and prompted him to kill her. "Convicted in AIDS Killing," Chicago Daily Law Bulletin, January 30, 1991, p. 1. Also see State v. Stark, 832 P.2d 109 (Wash. App. 1992) (defendant convicted for exposing another to HIV through sex had told a witness, "I don't care. If I'm going to die, everybody's going to die.")
3 Section 564.011, RSMo.
4 For an excellent discussion of this provision see Gene P. Schultz & Meg Reuter, AIDS Legislation in Missouri: An Analysis and Proposal, 53 Mo. Rev. 599, 622-627 (1988). Also see 7 St. L. Univ. Pub. Law Rev. 65, 108 (1988).
5 State v. Jenkins, 515 A.2d 465 (Md. 1986).
6 State v. Haines, see end note 2.
7 Weeks v. State, 834 S.W. 559 (Tx. Ct. App. 1992).
8 State v. Smith, 621 A.2d 493 (N.J. 1993).
9 Commonwealth v. Brown, 502 A.2d 429 (Pa. Super. Ct. 1992).
10 State v. Caine, 652 S.2d 611 (La. Ct. App. 1995).
11 Webb v. State, 93 A.2d 80 (Md. 1952).
12 Davis v. State, 102 A.2d 816 (Md. 1954); Chisley v. State, 95 A.2d 577 (Md. 1953).
13 United States v. Moore, 846 F. 2d 1163 (8th Cir. 1988) (during the struggle in question, defendant threatened to kill guards; three days later defendant repeated his "hopes . . . that they will get the disease that he has"); Scroggins v. State, 401 S.E.2d 13 (Ga. Ct. App. 1990) (shortly after the biting incident, the victim asked defendant, who had just told a nurse he was HIV positive, whether defendant had AIDS, and the defendant "just looked at him and laughed"); Commonwealth v. Brown, 605 A.2d 429 (Pa. Super. Ct. 1992); Weeks v. State, 834 S.W.2d 559 (Tx. Ct. App. 1992) (defendant stated at the time of incident that he was "going to take somebody with him when he went"); State v. Cummings, 451 N.W.2d 463 (Wis. Ct. App. 1989) (inmate bit guard and told him he had AIDS even though he did not have AIDS).
14 Arkansas, California, Colorado, Florida, Georgia, Idaho, Illinois, Kentucky, Louisiana, Maryland, Michigan, Montana, Missouri, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Virginia and Washington. Section 191.677, RSMo 1996 (an individual may not "deliberately create grave and unjustifiable risk of infecting another"). If convicted defendants are tested, the victims have the right to know the test results. Section 191.663, RSMo 1996.