Updated: 05/06/2013 6:28 AM KSTP.com By: Hannah Anderson
Prosecutors are asking the Minnesota Supreme Court to reinstate the conviction of an HIV-positive man accused of passing the virus to another man, in a case that has drawn attention of medical and civil rights groups who say it violates the defendant's constitutional rights.
Daniel James Rick, 32, of Minneapolis, was convicted in 2011 of attempted first-degree assault under a statute that makes it illegal to knowingly transfer a communicable disease. But his conviction was reversed last year, when the state Appeals Court found the statute was ambiguous. The state appealed, and oral arguments are scheduled for Tuesday.
Civil rights groups said the state's interpretation of the statute violates the rights of HIV-positive adults to engage in consensual sex even if they have told their partners about the disease.
"What they are doing here is saying it doesn't matter. Even if the person told the other person they were HIV positive, they still want to prosecute this case and turn the person into a sexual predator just because he is HIV positive," said Scott Schoettes, HIV Project director for the Lambda Legal Defense and Education Fund, a national civil rights organization for lesbian, gay, bisexual and transgender people.
"The application of this provision here is really trampling on a constitutional right, a fundamental right that we have to engage in intimate contact," Schoettes added.
Hennepin County Attorney Mike Freeman disagreed. In court documents, he wrote the views of the medical, public health and civil rights groups who have weighed in on the case aren't legally relevant.
"It absolutely is not a civil rights issue," he said in a telephone interview. "There is no question about the conduct that Rick undertook. He knew he was HIV positive, he had been instructed on methods to avoid transmitting it, and he chose to ignore them."
Freeman said he believes Rick is the first person in Minnesota to be prosecuted under the statute. It makes it a crime to knowingly transfer a communicable disease through "sexual penetration with another person without having first informed the other person" of his positive status. The statue also makes it illegal to spread the disease by transferring "blood, sperm, organs or tissue, except as deemed necessary for medical research or if disclosed on donor screening forms."
Rick was acquitted under the first part of the statute, because the jury found he disclosed to the alleged victim that he was HIV positive before having sex with the man in 2009. But he was convicted under the second section. Since Rick was charged with attempted assault, the state did not have to prove the other man actually contracted HIV from Rick.
Freeman said in his appeal that the state statute is neither ambiguous nor vague and clearly encompasses the act of sexual penetration. He explained it was written to prohibit conduct by Rick and others "who knew they were infected ... and went ahead and practiced unprotected sex anyway."
The defense argued the second part of the statute under which Rick was convicted was meant to criminalize the transfer of HIV through medical procedures, not sexual intercourse. They also argued that the state's interpretation is unconstitutional.
Thirty-four states and U.S. territories have laws that allow for criminal prosecution or enhanced sentences in HIV-specific cases. Other states have prosecuted HIV cases under general criminal laws, said Rashida Richardson, a staff attorney for the Center for HIV Law and Policy.
Minnesota's legislation was passed in 1995, when less was known about HIV and its transmission. Medical professionals who weighed in on the Rick case said HIV infection is now seen as a chronic illness that can be managed with medications, and chances of transmitting the disease are low in many cases.
Kimberly Carbaugh, executive director of the Association of Nurses in AIDS Care, said Minnesota's law is outdated.
While prosecutors said the case is about protecting public health, Carbaugh said laws that criminalize HIV exposure or nondisclosure actually impede public health - by discouraging people from getting tested.
One of Rick's attorneys, Grant Smith, said: "I think when you read the statute as a whole and you look at the plain meaning of the word in the statute and read it in context, the only way it can be interpreted is in favor of Mr. Rick."
Rick is not in custody. He is charged in three other cases in Hennepin County. In one, he is charged with sexually assaulting a man who was incapacitated, without disclosing he was HIV positive. In another, he is accused of having sex with two men, without telling them of his HIV status; one later tested positive for HIV. The third case alleges he failed to register as a predatory offender. Those cases are on hold pending this appeal.
He also has a prior conviction of criminal sexual conduct involving an underage person.
Landon Ascheman, one of Rick's attorneys, had no comment on the pending cases.
"Mr. Rick's behavior is not criminal because it is sexual or because he is gay," prosecutors wrote. "It is criminal because it necessarily risked the transfer of a serious disease despite his knowledge and tools to prevent it."
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