Let's say a hypothetical state makes it unlawful for any person who knows he is HIV-positive to have sexual intercourse with another without first disclosing his HIV-positive status under a criminal statute that punishes anyone who uses a weapon in a way that is likely to do serious harm to the victim. Let's assume for the sake of this hypothetical that HIV can be considered a "weapon" and that the defendant will concede that he was aware that he was HIV-positive and that he did not disclose his HIV status prior to intercourse.
Prosecutors charged Beauregard ("Bo") Tomm with one count of this crime after his one-time sexual partner went to the police after finding out Bo was HIV-positive. The trial took less than a day with prosecutors offering the following evidence: Mr. Tomm is HIV-positive; he did not disclose his status; the defendant and the victim had anal intercourse, which is one of the primary ways HIV is transmitted; HIV is the virus that causes AIDS, a deadly disease with no cure; and, HIV/AIDS causes serious harm or death.
Alongside statistics about how many Americans have HIV and how frequently sexual intercourse transmits the virus, this kind of evidence has convicted countless HIV-positive individuals of relatively serious crimes, carrying significant prison time.
But, there are several problems with this criminal regime. I would like to discuss the most important one.
The "likelihood" of doing harm — in this case, the likelihood of transmission of the virus — depends on a host of factors that prosecutors did not address. Viral load, sexual position, and safe sex practices are just three of the most obvious. The lower the viral load — the amount of virus in the blood — the lower the likelihood of transmission, and when an individual's viral load is undetectable under current technology, the likelihood of transmission falls even further. Bo's position during his sexual encounter, as his name suggests, was as the receiving partner, and the likelihood of transmission from the receptive to the insertive partner is exponentially lower than the reverse. Finally, if Bo's sexual partner used a condom, the likelihood of transmission is even lower.
This is all to say that each case of anal sex is different. An HIV-positive defendant whose viral load is 40,000, who was the insertive partner, and who did not use a condom engaged in an activity with a significantly higher risk of transmitting the virus than someone whose viral load was under 40 (undetectable), was the receptive partner, and practiced safe sex.
If prosecutors can prove that transmission is likely merely by offering evidence that anal sex possibly transmits HIV, then two things happen. First, it is factually incorrect. Anal sex can transmit HIV, but all incidents of anal sex aren't fungible. Second, it is legally insufficient. The notion that a "likelihood" threshold could be satisfied by the mere possibility that HIV could be transmitted both actually lowers the threshold and eviscerates the requirement that guilt be proven beyond a reasonable doubt.
Think about it: If all prosecutors had to do was prove is that anal sex can possibly transmit HIV, then no doubt could be reasonable. After all, “[a]nything is possible; there are no metaphysical certainties accessible to human reason; but a merely metaphysical doubt . . . is not a reasonable doubt for the purposes of the criminal law.” This principle does not only exclude the fanciful (“it is possible that I will burst into flames”), but also the realistic, yet remote.
If mere possibility cannot survive as a reasonable doubt, it cannot survive as proof beyond a reasonable doubt. After all, there can be no reasonable doubt that anything is possible. And, “anything is possible” cannot survive constitutional scrutiny as a basis for criminal conviction. That makes logical sense. The statement that “anyone could have grabbed the gun from me in the dark before the gun went off” is neither a reason to exclude anyone as a suspect nor a reason to charge everyone else with the crime. If it were, everyone would be charged with everything, no one would be convicted of anything, and the reasonable doubt standard would have no meaning.
That something may be possible, however, is exactly what certain states and the military courts have accepted as proof beyond a reasonable doubt in cases involving HIV-related aggravated assault. By lowering the burden on the government to prove only that HIV could possibly be transmitted, these jurisdictions have obviated the need for a reasonable doubt standard. There can be no scintilla of doubt, let alone a reasonable one, that HIV can theoretically be transmitted through sexual intercourse. For that matter, HIV can theoretically be transmitted by oral sex, spitting, biting, or getting scratched by a monkey, but each is less likely than the one before it.
This is what lawyers call a due process problem, a constitutional evil of the highest order, especially when the strong arm of the criminal law is in play. And, HIV-positive Americans are victims of these due process violations all the time. Thankfully, our attorneys at Lambda Legal are working on the problem.
Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues.
Follow Ari on Twitter at @ariezrawaldman.