The Minnesota Supreme Court unanimously ruled on August 21 that the state’s court of appeals had correctly reversed the conviction of Daniel James Rick, an HIV-positive gay man who had transmitted HIV to his partner, finding that neither part of the state’s law penalizing “attempted first-degree assault by communicable disease” applied to his case. All five members of the Court who participated in the case approved Chief Justice Lorie Gildea’s opinion for the court. Two members did not participate. State of Minnesota v. Rick, A12-0058.
Rick was diagnosed HIV-positive in 2006, at which time he received counseling about HIV transmission. In 2009, he met D.B. through a “social website” and they began a relationship that included unprotected anal sex. Rick maintains that he disclosed his HIV-status and that the sex was consensual. D.B. subsequently tested positive for HIV. The men had sex again after D.B.’s positive test, but the relationship ended and D.B. complained to law enforcement about Rick, who was charged with violating the Minnesota statute, Section 609.2241. At trial, Rick’s attorney argued that since Rick had disclosed his status before having sex, he could not be found guilty of the charged offense.
The relevant Minnesota statute has two parts, and Rick was charged with violating both of them.
The first part makes it a crime for somebody who “knowingly harbors an infectious agent to transfer” it through “sexual penetration with another person without first having informed the other person that the person has a communicable disease.” The second part makes it a crime for somebody who “knowingly harbors an infectious agent to transfer blood, sperm, organs or tissue, except as deemed necessary for medical research or if disclosed on donor screening forms.” Clearly, if the jury believed Rick’s testimony, it would have to acquit on the first charge, and that is what the jury did.
As to the second part of the statute, however, the state argued that it literally applied to Rick’s situation, regardless whether he had disclosed his HIV-status, because his conduct involved a transfer of sperm to D.B. Rick argued in defense that the second part of the statute did not apply to sexual activity, only to medical transfers of blood, sperm, organs or tissue through sale or donations. The trial judge accepted the state’s argument, charging the jury accordingly, so the jury convicted on that charge. The trial judge sentenced Rick to 49 months in prison, but stayed the sentence while the case went on appeal, so Rick has not actually been to prison.
The state’s court of appeals found Rick’s argument about the interpretation of the second part of the statute more convincing. That court decided that the language of the second part, viewed in context, was ambiguous as it could reasonably be given both the state’s interpretation and Rick’s interpretation. When a criminal statute is ambiguous and subject to alternative interpretations, courts generally apply a “rule of lenity” under which they adopt the interpretation urged by the defendant, to avoid convicting somebody for conduct that was not clearly criminal. In this case, it would be reasonable for Rick to think that he had fulfilled his legal obligations by disclosing his HIV status to D.B. who could make an informed judgment about engaging in unprotected anal sex with Rick.
The Supreme Court agreed with this approach. Justice Gildea went through a variety of arguments about how the second part of the statute should be interpreted, ultimately concluding that most of the arguments cut in favor of holding that the second part of the statute was not intended by the legislature to deal with sex, even though one literal reading of its text might seem to apply to Rick’s conduct as, without doubt as far as this case went, he had, knowing that he was HIV-positive, engaged in conduct that transfered sperm to D.B. Looking particularly at issues of grammar and legislative history, however, the court found that the legislature was concerned with two kinds of conduct that might transmit an infectious agent: sex, and donation of blood, sperm, organs or other body tissue, and intended to address those two methods. As to sex, the legislature was concerned with informed consent. As to donation, it intended to impose strict liability for donations of blood, sperm, organs or body tissue unless these items were requested for medical purposes (usually research, on presumes) or under circumstances where the infectious condition was disclosed on screening forms.
Thus, it is a crime in Minnesota for somebody who knows that he is HIV-positive to donate blood, sperm, organs or other tissue unless the donation is for medical purposes or the donor has disclosed on donation forms that he is HIV-positive, and it is a crime in Minnesota for somebody who knows that he is HIV-positive to engage in sexual penetration without disclosing his status to his sexual partner. This interpretation of the statute removes the ambiguity in relation to the facts of Rick’s case, and clearly supports the court of appeals’ decision to reverse Rick’s conviction.
Nowhere in its decision does the court discuss whether “penetration” as used in the statute includes oral sex, as that was not the focus of this appeal because Rick was acquitted on the sexual penetration charge, so the court was concerned only with the interpretation of the second part of the statute. But it seems logical that if disclosure and informed consent relieves an infected person of liability for sexual transmission, the same rule would apply to oral sex, which presents a much lower risk of transmission.
The case drew signification attention from outside the state, including briefs from the ACLU’s national LGBT/HIV Project, Lambda Legal, and various HIV-related medical organizations, as well as the ACLU of Minnesota and other Minnesota groups. Grant Smith and Landon Ascheman of Saint Paul represented Rick.