HIV & Criminal Law: The Idaho Supreme Court Speaks

The Idaho Supreme Court spoke unanimously yesterday, upholding what may turn into something like a life sentence to an HIV+ man convicted under I.C. sec. 39-608 of eleven counts of "transferring body fluid which may contain the human immunodeficiency virus."  This draconian sentence was upheld in State of Idaho v. Mubita, 2008 Westlaw 2357703, where it appears that the acts in question presented little or no risk of HIV transmission, there is no evidence that HIV was actually transmitted, and the police learned the identity of the defendant through unauthorized disclosure of his medical records and forms he filled out at the health department in order to access HIV-related benefits.

According to the opinion for the court by Justice Jones, Mr. Mubita immigrated to the U.S. from Zambia, Africa, and settled in Moscow, Idaho.  He tested negative for HIV during the immigration process, but evidence suggests he may not have been told his results.  (Whether he knew that he would have been denied entry had he tested positive, and drawn the necessary conclusion, is not explored.)  Mubita was married at one time, and accompanied his wife to a hospital in Pullman, Washington, late in 2001, when they were both tested for HIV.  At that time, he received a positive test result, which was confirmed and reported to the Washington State Public Health Department.  Mubita then went into the Health Department in his home town, Moscow, Idaho, requesting HIV-related services, at which time he executed documents attesting to his HIV+ status in order to qualify for various benefits.  A caseworker assigned to him testified that he signed a document containing the text of the HIV exposure law, signifying his understanding.  He also signed an authorization form that stated his revelation of his HIV status to receive benefits "does not permit the release of any client records or files without my expressed written consent."

But, in October 2005, the Latah County Prosecutor's Office received an anonymous tip that "a Moscow male who is HIV+ was believed to have had sexual activity with two women without informing them of his status."  The prosecutor's office sent a letter to the health department, requesting disclosure of "whatever information your agency may possess in regard to an adult male resident of Latah County who has tested positive for the HIV virus and who is believed to have engaged in sexual activity with two females in violation of Idaho Code 39-608."  The letter stated that the request was made in connection with a law enforcement investigation of possible violation of 39-608.   The letter also requested any information the agency might have about potential victims.  According to Justice Jones, the health department responded by sending the documents in its files on Mubita.  The prosecutor forwarded them to the police, who launched their investigation, eventually getting Mubita to admit that he had "unprotected sex" with one woman numerous times.

What was the nature of the sex?  According to Mubita, he engaged in cunnilingus.  According to the woman, he also rubbed his erect penis on her vagina and then ejaculated on her thigh.  In other words, this was low-risk activity unlikely to transmit HIV, especially if, as was the case with Mubita, he was taking meds that suppress viral load to the point where infectiousness is a negligible risk.

A jury found Mubita guilty of eleven counts of exposing the woman to HIV, and the district court imposed a "unified sentence of four years, with four months fixed, for each count, to be served consecutively."  Sounds to me like it is up to 44 years...., but might be as short as 44 months?

At any rate, Mubita complains about the unauthorized release of his records by the health department, and argues that the statute should be construed according to legislative intent, and thus not to apply to the kinds of sexual acts in which he engaged which present little likelihood of viral transmission.  The court was not receptive to either argument.   As to the release of documents issue, the court found that in the documents Mubita executed at the health department, there was the statement that the HIV-related information could be released "when there is a clear or immediate danger to you or others."  "In this instance," wrote Justice Jones, "Mubita created a clear and immediate danger to public health, allowing for release of the records that he voluntarily turned over to, or created with, the Health Department."  The court also said that the forms in question were not strictly speaking "medical records," as to which the state's HIV confidentiality law applies, but rather "business records," in that they were generated by Mubita in order to get benefits, not by a doctor in order to record a medical diagnosis or course of treatment.  (Laboratory records of Mubita's HIV test results were also admitted into evidence over his objection, but the court, while finding this improper, decided it wsa "harmless error" in the context of the case.)

As to the argument that Mubita should not be subject to criminal liability for engaging in action unlikely to actually transmit the virus, the court was not at all sympathetic.  The statute is clear and direct, specifically applies to saliva and oral-genital contact, and in that circumstances the court is disinclined to engage in "interpretation."  "In this case," wrote Justice Jones, "we need not go beyond the plain language of the statute."  The term "body fluid" is defined in the statute to include saliva.  "'Transfer' is also expressly defined to include 'engaging in sexual activity by genital-genital contact, oral-genital contact, anal-genital contact.'"  Although the testimony showed only cunnilingus and ejaculation on, not in, Mubita's sexual partner, the court found that his conduct clearly came within the terms of the statute.  So, the law is applied to deter "safer sex" as well as risky sex, so long as one party is HIV+ and does not reveal that fact to the other party.

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If this will just be implemented in some country maybe we can prevent the spread of HIV.