Kansas Supreme Court Reverses HIV Exposure Conviction, Finding Specific Intent Not Proven

The Kansas Supreme Court unanimously reversed the conviction of Robert W. Richardson, II, who is living with HIV infection, for "exposing" two women to a "life-threatening disease," finding that the state had failed to present evidence that Richardson, who admitted having sex with both women, had actually intended to expose them to HIV infection. In his opinion for the court, Justice Lee A. Johnson mentioned that the state had "inexplicably" failed to introduce evidence at trial that could have provided an evidentiary basis for Richardson’s conviction.  State of Kansas v. Richardson, 2009 Westlaw 1705745 (June 19, 2009).

According to Johnson’s opinion, Richardson had known he was infected with HIV for ten years when he had sex with the two women in the fall of 2005. Richardson had been under treatment and enjoying a very low viral load, but a February 2005 test showed an increase in viral load in to the "medium level" of infection, so he was prescribed new medication. At his next viral load test, shortly after the sexual encounters that were the basis for his prosecution, his viral load was so low as to be undetectable.

The opinion does not relate how Richardson’s sexual activities came to the attention of the Lyon County District Attorney’s Office. He was charged in May and June 2006 with two counts of violating a Kansas statute, K.S.A. 21-3435(a)(1), that provides, "It is unlawful for an individual who knows oneself to be infected with a life threatening communicable diseases knowingly to engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life threatening communicable disease."

At the trial before District Judge Jeffry J. Larson, Richardson waived his right to a jury trial and agreed with the prosecutor to stipulate to three facts: that he knew he was infected with HIV, that he engaged in sexual intercourse with the two women on the dates charged, and that "sexual intercourse" under the statute meant "penetration of the female sex organ by the male sex organ."

The only evidence presented at the trial came from Richardson’s doctor, who was testifying as state’s witness, and another doctor called by Richardson. Their testimony mainly addressed the scientific evidence about communicability of HIV when somebody has an undetectable viral load, and Richardson’s doctor was also quizzed about what counseling he had given to Richardson concerning safe sexual activity. It turned out that the doctor’s recollection was fuzzy and his written patient records did not confirm any particular counseling.

Richardson argued that the statute was too vague, failing to define what "expose" means, and also failing to explain the meaning of "life threatening disease." District Judge Larson rejected these arguments, and accepted the state’s contention that based on the stipulated facts Richardson had violated the statute by engaging in sex with the women while knowing he was infected. Richardson had argued that it was not enough for the state to show that he had engaged in sexual intercourse while knowing he was HIV+, but rather that the state had to show that he had the specific intention to expose the women to being infected with HIV. Larson accepted the state’s argument, and convicted Richardson. Justice Johnson’s decision does not mention the length of sentence imposed by Larson.

On appeal, the Supreme Court rejected the state’s interpretation of the statute, agreeing with Richardson that the statute requires the state to show that a defendant had a specific intent to expose his sexual partners to the disease, not just a generalized intent to have sex while knowing he was HIV+. "The State acknowledges that, on its face, K.S.A. 21-3435(a)(1) purports to be a specific intent crime. However, the State does not acknowledge that this State’s appellate courts have consistently interpreted statutes that define a crime by using the phrase ‘with intent to’ as requiring a specific intent element," wrote Johnson. "Instead, without proffering any authority, the State contends that giving effect to the statute’s plain specific intent language would actually thwart the legislature’s intended purpose of preventing the intentional exposure of others to HIV."

In effect, the state argued, since there is always some risk of HIV transmission if an infected person has sex with somebody else (for example, condoms can break), the statute should be construed to require HIV+ people to be celibate. Or, as Justice Johnson summarized the state’s position, "the State suggests that the specific intent to expose another to HIV is inherently included in the defendant’s general intent to engage in sexual intercourse. Under the State’s interpretation, a person infected with HIV must be totally abstinent or risk being prosecuted for a felony each and every time he or she engages in sexual intercourse or sodomy, regardless of whether the act is between two consenting (perhaps married) adults with full knowledge of the virus and utilizing prophylactic measures. We disagree," he stated emphatically.

Johnson insisted that the state had to prove that Richardson had the "specific intent to expose them to HIV." The problem, however, is that proving intent is difficult, since it is virtually impossible to prove what somebody was thinking. The best one can do is to produce circumstantial evidence. The state argued that the court’s interpretation of the statute would make it virtually meaningless, putting the state to an impossible burden of proof, but the court disagreed, finding that the state could meet its burden by showing circumstances from which a reasonable fact-finder could infer the necessary criminal intent.

In this case, Johnson pointed out, ironically, evidence had been presented at the preliminary hearing (but not at trial) that might serve as the basis for drawing such inferences. The court specified three items of such evidence that it considered significant. Neither of the women knew that Richardson was HIV+ when they agreed to have sex with him, he did not use condoms, and he lied to one of the women, telling her that he was free of any sexually-transmitted diseases. The court suggested that had this evidence been presented at trial, there could have been a basis to infer specific intent.

The supreme court agreed with Judge Larson that the statute was not unconstitutionally vague, finding that people of reasonable intelligence could interpret the terms "expose" and "life threatening disease" without further explanation from the legislature. But, interestingly, on its own motion the court suggested that if the state’s interpretation of the statute was correct, it would raise a federal constitutional problem under Lawrence v. Texas (the 2003 U.S. Supreme Court decision striking down the Texas sodomy law), because "a person’s decision to engage in private, consensual sexual conduct is protected by the United States Constitution," and the state would have the court construe the statute to make all sexual activity by HIV+ people a crime, regardless of the degree of risk they would present to their sexual partner.

Richardson was represented on appeal by Lydia Krebs of the Kansas Appellate Defender Office, who managed to persuade the court to issue one of the most rational, and least hysterical, opinions about HIV exposure that we have seen over almost three decades of the AIDS epidemic.

Comments

[lydia krebs]

Mr. Richardson has a similar case on appeal out of another Kansas county. Although we lost at the Court of Appeals level (where the Court held that an instruction, although erroneous, was not clearly erroneous), the petition for review is still pending with the Kansas Supreme Court. (2009 WL 3837626)