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HIV case presents conflicting goals

Iowa man charged with intentionally exposing woman to infection

By Sherry F. Colb
FindLawexternal link columnist
Special to CNN.com


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(FindLaw) -- The prosecution of an Iowa man charged with intentionally transmitting HIV raises some important questions about the role of our criminal law.

Dewayne Boyd allegedly failed to warn his extramarital sexual partner of his infection prior to engaging in sexual relations with her.

The case first asks us to consider the culpability of one who spreads HIV to unwitting sexual partners.

Second, it asks us to decide how best to protect potential victims from the spread of the virus.

Finally, it forces us to confront the question whether the criminal law is primarily about the condemnation of wrongful behavior or the prevention of further harm, when the fulfillment of these two goals point in different directions.

On the facts reported, Boyd is not a terribly sympathetic figure. He has allegedly known since 1991 that he was infected with the virus that causes AIDS. He married a woman and failed to tell her of his HIV status, ultimately infecting her with the virus.

Boyd allegedly went on to cheat on his wife, only months after their wedding and while she was sick and in the hospital, thereby exposing additional unwitting victims to HIV.

Boyd's father-in-law, Michael Locascio, reported Boyd to the authorities when he learned of the extramarital liaison.

Even after spreading the virus, Boyd apparently failed to reveal what he had done to his victims, thereby precluding early intervention that could have enhanced their health prospects.

Despite advances in treatment that can prolong the lives of people infected with HIV, infecting another person causes them serious harm and eventual death.

It seems fair to judge the spreading of HIV in this manner as culpable conduct, comparable to other acts of violence that result in death. Let us briefly, however, play the devil's advocate.

Poison cookie analogy

Ordinarily, most of us probably think of violence as nonconsensual and as intentionally destructive.

For example, if Charlie Criminal repeatedly beats Vincent Victim with a tire iron, he is guilty of an aggravated assault. Vincent most likely did not consent to Charlie's beating him. And Charlie almost certainly meant to harm Vincent. Charlie's actions inherently seem to reflect the intention to overpower another person's will and cause pain.

Boyd, by contrast, engaged in consensual sexual behavior with an adult woman. We do not know whether Boyd bore ill will toward the woman, but it is possible that he did not.

Boyd could plausibly claim that he had wanted to satisfy his sexual urges -- nothing more, and nothing less -- and that he did not wish for anyone to become ill in the process.

Boyd also might say any adult having sex in today's world should assume that his or her partner is HIV-positive and act accordingly. Whether that means using a condom or opting for abstinence, the woman had those choices available.

On the facts reported, he did not force anyone to do anything.

There is, of course, a response to this argument: With knowledge comes responsibility. And ill will is not a prerequisite of devastating violence.

It is sadly true that anyone could potentially be carrying the HIV virus. Condom use is advisable even if neither partner believes that he or she is infected. And people who donate blood for transfusions will have their blood tested for HIV, even if they say they are HIV-negative.

This reality, however, does not relieve people who know that they carry the virus from the responsibility to refrain from acts that unnecessarily expose other people to the disease.

For such people to donate blood, for example, would be grossly irresponsible. Those who are HIV-positive, then, have different obligations to others.

Consider the following example. There are foods, like raw eggs, that on occasion are infected with toxins that cause food poisoning. Some people still choose to ingest raw eggs (in cookie dough, for example).

Such people are taking a chance that they will become ill with food poisoning. One might even say that they are being negligent in guarding their own health.

Still, if Benjamin Baker knows that a particular batch of cookie dough is infected with salmonella and offers it to Marie Martyr for a taste, Benjamin has poisoned Marie.

That remains the case even if Benjamin did not want Marie to get sick -- he just enjoys having people praise his skillfully prepared cookie dough, and he hoped Marie would stay well.

Benjamin gave Marie the cookie dough despite the salmonella taint, not because of it. Yet knowingly serving a person poisoned food is an act of violence, even if the food is inherently dangerous, and the victim therefore perhaps should have known better than to risk eating it.

Minimizing harm

By analogy, Boyd committed acts of violence against the woman with whom he had sex, even though she consented to sex and could have taken precautions against HIV exposure. The criminal law, accordingly, is justified in condemning his behavior.

In addition to punishing culpable conduct, the criminal law also serves a deterrent function.

The purpose of enforcing the law is not solely to dispense justice but also to protect the public from further harm. And this second goal could conflict with the first if we regularly subject people like Boyd to criminal penalties.

It might seem, at first glance, that punishing Boyd for his culpable conduct is entirely consistent with minimizing further harm.

If he is not punished, then he may continue to act irresponsibly and spread HIV to as many unwitting women as he can attract. Removing Boyd from circulation among the population of potential victims therefore seems like a practical idea.

And if others see Boyd being punished for his misconduct, then perhaps they will hesitate before proceeding in the way that he did. We can thus accomplish the criminal law's goals of retribution, specific deterrence and general deterrence, all in one fell swoop.

But one assumption might prove fatal to the efficacy of punishment as a deterrent.

HIV testing -- though recommended -- is generally not mandatory. Accordingly, a necessary condition for criminal liability for exposing others to the virus -- the knowledge that one is HIV-positive -- is something over which the potential culprit has control.

The lesson that a sexually active individual might take from the prosecution of a man like Boyd is, therefore, that he should keep himself ignorant of his own HIV status.

This is not simply a hypothetical concern. A person who is most likely to carry HIV -- someone who has had unprotected sex with many partners -- may already avoid getting tested for reasons unrelated to the criminal law.

It is part of the human condition that we avoid bad news, even when knowing the facts could mitigate their effects. How many of us have delayed visiting the doctor when we suspected that something was wrong?

Add to this the potential for criminal prosecution, and the people most in need of HIV counseling might avoid testing even more studiously than before.

What good would it do to motivate a person who has unprotected sex to get tested?

Think again of the person who avoids the doctor because he does not want to hear bad news. Once that person actually goes for an appointment, despite his misgivings, the doctor has the opportunity to tell her patient about medical treatments and to urge him to do what he can to avoid making other people sick.

Contradictory goals

A person with a conscience is less likely to continue having unprotected (and unwarned) sex once he knows that he is HIV-positive. Remaining in a state of denial becomes much more challenging once a person is confronted explicitly with the truth. It takes a level of culpability that, we hope, most people lack.

There may therefore exist a serious tension between two of the primary goals of the criminal justice system when it comes to prosecuting people like Boyd.

On the one hand, if the accusations are true, then Boyd appears to be culpable for knowingly exposing at least one woman to a deadly virus through unwarned sexual contact.

The knowledge that he was carrying HIV did not appear to trouble his conscience enough to stop him from spreading the virus. If the allegations are true, Boyd richly deserves to be punished.

On the other hand, when society punishes Boyd, it also sends a message. For those who know they are HIV-positive, the message is a useful one: Do not expose other people to the virus through unprotected sex or you may face criminal penalties.

According to the CDC, however, an estimated 25 percent of HIV-positive individuals are unaware of their status. A majority of new cases have been spread by people who did not know their status.

For the estimated hundreds of thousands of people in this country who do not know they are HIV-positive, the message of Boyd's prosecution could be counterproductive: If you suspect that you may be HIV-positive, getting tested could turn future unprotected sex into a crime.

For the many people who are on the fence when it comes to whether they should face the frightening prospect of a positive result, this message may prevent testing. Thus, it may increase the incidence of the very act for which Boyd is being prosecuted: transmission of the virus.

This would be a tragic result, and yet, it feels wrong to allow someone who knowingly exposes others to HIV to get away with it.

Boyd's case may ultimately be one of those cases that seem difficult and, on further reflection, truly are difficult.

Sherry F. Colb, a FindLawexternal link columnist, is a professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark, New Jersey.

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