A panel of the U.S. Court of Appeals for the 9th Circuit affirmed the denial of a writ of habeas corpus sought by Andrew Lee Boyer, an Oregon man who was convicted of attempted aggravated murder (together with several other sexual offenses) in an Oregon state court upon evidence that, knowing that he was HIV-positive and had been diagnosed with AIDS, he had anally penetrated two teenage boys without using a condom. Although Boyer claimed that he withdrew prior to ejaculation, the jury evidently either did not believe him (despite corroborative evidence from one of the boys) or had credited the medical testimony presented at trial that withdrawing prior to ejaculation is not totally safe in terms of HIV transmission. Boyer's conviction was upheld on appeal in the Oregon state courts, and U.S. District Judge Malcolm F. Marsh (D.Or.) rejected his petition for habeas corpus. Boyer v. Belleque, 2011 Westlaw 5110120 (Oct. 28, 2011).
The case involves four boys, ages 12, 13 and 18, the oldest of whom was a special education student with diminished mental capacity. Boyer was in his mid-30s when the sexual assaults took place in 1996. He had been diagnosed as HIV-positive years before, had received an AIDS diagnosis, and had been counseled about the need to use condoms to prevent HIV transmission. Nonetheless, according to the evidence presented at trial, he had cultivated a friendship with these boys and took advantage of their trust to initiate sexual activity with them, mainly with Boyer performing oral sex on the boys, but on a few occasions he took it further to anal sex.
After this came to the attention of the police, there was a thorough investigation resulting in a trial at which the jury convicted Boyer on twenty counts of sexual offenses, including sexual abuse, sodomy, attempted sodomy and two counts of attempted aggravated murder, the last based on the theory that "in the course of and in furtherance of the crimes of sexual abuse and sodomy, he attempted to cause the death of two individuals 'by performing anal sodomy on the said [individuals], knowing that he… was infected with [AIDS], a fatal disease that is transmitted to another person by the transfer of body fluids such as semen.'" Boyer was sentenced to over 50 years in prison.
In his habeas petition, he specifically challenged the attempted aggravated murder convictions, arguing that he had not intended to kill these boys and that the evidence did not support the conclusion that he had such an intent. He argued that his conviction on these counts violated his right to Due Process of Law. In an opinion by Circuit Judge Ronald M. Gould, in which the court was constrained by the requirements of the Antiterrorism and Effective Death Penalty Act of 1996, which sharply limits the grounds on which a federal court can reverse a state criminal conviction, the court of appeals rejected this argument "with some reluctance because of the thin nature of the evidence of intent." The other judges on the unanimous panel were Raymond C. Fischer and Richard A. Paez.
Key to the prosecution was expert testimony provided by Boyer's doctor, David Gilbert, his treating physician since 1992. Gilbert testified that by 1993, Boyd's prognosis after being infected with HIV for about seven years and having progressed to full-blown AIDS was that "he most likely had two more years to live." Dr. Gilbert testified that Boyd became non-compliant with his drug treatment in July 1996 and had developed a high viral count by the end of that year. The events in question in this case took place during 1996. Dr. Gilbert testified that he had counseled Boyer about the risk of transmission and the need to use condoms and practice safe sex.
On the risks of transmission, Gilbert testified as follows, according to Judge Gould's opinion:
"When asked whether a person who was the recipient of anal sex by an HIV-positive person had a high risk of contracting the disease, Dr. Gilbert stated that 'for each sexual exposure, there is somewhere between a one [in] a 100 and one in a 1,000 chance of acquiring the disease through that sort of activity.' He testified that although the risk of infection would be lower during anal sex if no ejaculation occurred, 'prior to ejaculation, there are secretions that come out of the penis that do have HIV in it [sic]. So you would be decreasing the amount, but not eliminating the risk entirely.' He also stated that oral sex was a low-risk activity, and that he had provided such general information to Boyer before the sexual assaults."
The boys all testified that Boyer never told them he was HIV-positive or had AIDS. One of the boys said that Boyer told him that he had cancer.
Boyer moved for acquittal on the attempted murder charges at the close of evidence at the trial, arguing that the state, which has the burden of proving every element of the offense beyond a reasonable doubt, had failed to present evidence showing that he intended to kill these boys by having anal sex with them. At best, he argued, the State had shown recklessness, inadequate to sustain an attempted murder charge. In thinking about Boyer's motion, consider again Dr. Gilbert's testimony: between a 1 in 100 and a 1 in 1000 chance of transmission if an HIV-positive person ejaculates during intercourse, and a much lower risk if he withdraws prior to ejaculation. Of course, there was no evidence that Boyer knew these odds at the time in question, and the question here was what the evidence showed concerning his intent when engaging in unprotected anal sex.
The prosecutor's response to the motion was that the evidence showed that "the defendant knowingly and deliberately inserted his penis in the rectum of these two individuals. And inserting bodily fluid from his penis into them, and thereby caused the AIDS virus to be placed inside each of these two children. This was a knowing act, a deliberate act. There was absolutely nothing more that he could do to prevent the death of these children if they contracted the AIDS virus."
In other words, although this trial was taking place after new treatment developments had begun to extend the lives of people living with HIV, ultimately leading to it being regarded generally as a manageable latent infection, albeit with some nasty complications, rather than an inevitable short-term death sentence, the prosecution "played the death card" aggressively in this prosecution. There is, by the way, no mention in the court's opinion that either of the two boys had seroconverted to HIV-positive as a result of this experience.
The trial judge, denying Boyer's acquittal motion, stated that "intent is a very difficult thing to prove at best… It is very rare anybody states expressly what their intentions were. And typically it has to be inferred from the evidence. Given the knowledge that is attributable to Mr. Boyer regarding his infectious disease, the jury could infer an intent here to cause the deaths."
In instructing the jury on the attempted aggravated murder counts, the judge told them that "a person acts intentionally or with intent when that person acts with a conscious objective, either, one, to cause a particular result, or two, to engage in particular conduct." The judge further explained that "Oregon law provides that a person commits the crime of Attempted Aggravated Murder if that person intentionally attempts to cause the death of another human being under or accompanied by certain defined circumstance." Judge Gould's opinion does not quote any further explanation by the trial judge, if any, of what the "certain defined circumstance" means in this reference. The jury convicted on the attempted aggravated murder charges.
The grant of a writ of habeas corpus would constitute a determination by the federal court that there was a constitutional flaw in the state court prosecution, requiring the reversal of conviction on the challenged counts. Under the AEDPA, which defines the federal court's habeas jurisdiction, the writ "shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings" unless such adjudication resulted in a decision that "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
The U.S. Supreme Court has yet to address on the merits the question whether an HIV-positive person can be constitutionally convicted of attempted murder for unprotected penetrative sex in a case presenting this factual context – that is, lack of direct evidence that the defendant intended to kill the victims, leaving it to the jury to infer intent from evidence about the acts, the state of knowledge of the defendant, and the risk of transmission asserted in the uncontradicted expert testimony. Thus, the only possible basis for Boyer to succeed in his application for habeas corpus would be to show that the verdict was "based on an unreasonable determination of the facts in light of the evidence" presented at trial.
As to this, the court noted that in a prior Oregon case, State v. Hinkhouse, 912 P.2d 921 (Or.Ct.App.1996), presenting similar facts, the state's appellate court had upheld a similar conviction on basically the same sort of evidence, allowing a jury to infer the requisite intent from the fact that the HIV-positive defendant had been counseled about transmission, condom use and safer sex, yet had engaged in penetrative unprotected sex with the victim without disclosing his HIV status. Despite the lack of direct evidence of intent to actually kill the victim, the Oregon court in that case found that the jury could find beyond reasonable doubt the intent to kill. Judge Gould pointed out that Boyer's case "is not fairly distinguishable from Hinkhouse," so it could not be argued that Boyer's conviction was inconsistent with established Oregon precedent.
That left the question for the court whether Hinkhouse was "wrongly decided" as a matter of federal constitutional law. Because of the constraints of AEDPA, wrote Gould, "we cannot grant relief unless we conclude that Oregon's approach to this issue 'is an objectively unreasonable application of Supreme Court precedent" in terms of the Supreme Court's ruling in prior habeas cases concerning intent issues. "It was not unreasonable," wrote Gould, "in the light of Hinkhouse, to conclude that a rational jury could find beyond a reasonable doubt that Boyer intended to kill his victims based on proof that he anally penetrated several victims with knowledge that he could infect them with AIDS…. The problem in this case for Boyer, a problem compounded by the Hinkhouse precedent, is that the state appellate court concluded that the evidence in this case supported a rational inference of intent to kill. Although the United States Supreme Court would be free to issue a new precedent giving relief to Boyer on his theory, the constraints of AEDPA preclude our doing so."
Concluding, Judge Gould wrote: "With some reluctance because of the thin nature of the evidence of intent, but concluding that state courts have a broad general entitlement to deference to define their own state criminal law and that this case cannot be fairly distinguished from Hinkhouse, we conclude that the state courts' determination that sufficient evidence existed to support Boyer's convictions for attempted aggravated murder was not objectively unreasonable, and habeas relief is not warranted."
Without attempting in any way to support Boyer's conduct — after all, he was not seeking habeas on his convictions for sexual assault, sodomy and attempted sodomy, and thus was seeking only to vacate the attempted murder convictions and have a shot at reducing his sentence lengthy prison sentence – one can criticize this opinion for its anachronistic view of HIV infection, a view even anachronistic at the time of trial in light of the treatment developments of the mid-1990s.
Indeed, although Dr. Gilbert testified that Boyers' prognosis in 1993 — prior to the introduction of protease inhibitors — was two years, and he had stopped taking his drugs in 1996, he is now alive in prison 15 years after the sexual activities in question in this case. Although courts seem content to impose draconian sentences arising from convictions on attempted murder charges (or assault with a deadly weapon charges) on people living with HIV who act improperly and present an infection risk to others, there are certainly grounds to argue that the reasoning supporting these prosecutions is flawed.
There have been several law journal articles exploring this topic. The most recent to come to my notice is "Exceptions: The Criminal Law