Woman Convicted for Knowingly Transmitting HIV

In light of Charlie Sheen's recent HIV disclosure, I thought it prudent to bring the case of People v Jensen to our memory.  Mr. Sheen is a necessary reminder that we can't judge a person by their looks as to whether or not they are carriers of the virus.  In addition, regardless of the progression of HIV/AIDS research and the number of people living long lives, there remain folk out there who are irresponsible and vindictive.

Nadja Benaissa, singer of German girl band "No Angels", sits in a courtroom in Darmstadt, Germany, Monday, Aug. 16, 2010. The German singer has gone on trial accused of causing bodily harm by having unprotected sex despite knowing she was HIV-positive. Nadja Benaissa is alleged to have infected a man with the virus in 2004. Boris Roessler/AP Photo
In the case of People v Jensen, 222 Mich App 575; 564 NW2d 192 (1997), the defendant Brenda Lee Jensen was charged with three counts of knowing that she was HIV positive.  She was found guilty of engaging in consensual sexual activity with a partner without informing him of her positive HIV status supported by MCL 333.5210; MSA 14.15(5210).  The defendant was sentenced to concurrent terms of two years and eight months to four years imprisonment on each of the three counts.

Upon conviction, the defendant filed an appeal to have the case heard by the Supreme Court on the basis that the judgment was unconstitutional.  The Supreme Court vacated in part the judgment and remanded the case back to the Court of Appeals for further decision on the merits of the question whether MCL 333.5210; MSA 14.15(5210) is constitutional (People v. Jensen, 1997).  

Prosecutions and Arrests for HIV Exposure in the United States

The defendant stresses that it is unconstitutional overbroad to accuse her of a crime for refusing to notify her sexual partners of having AIDS or is HIV positive because the sexual intercourse included both consensual and non-consensual acts and 2) there it fails to require intent to cause harm. 

The defendant argues that it is unconstitutional, in that, the statute does not specify intent to harm and she cannot be held criminally liable if she did not understand the consequences.  The Michigan Court of Appeal upheld the original conviction.

To support its decision in an effort to protect the public's welfare, the court referred to the case of People v. Lardie, (1996).  The Supreme Court found that a person, who operates a vehicle while intoxicated, could criminally responsible for causing the death of another; based on the fact they knew they were intoxicated while driving, even without a specific intent to cause harm.

Son of The Myth of the Broken Home- co-authors HIV science publication: Purification of the COP9 Signalosome Complex and Binding Partners from Human T Cells

Dolatowski, Hall & Schmalleger (2010) describe mens rea (intent), aka the guilty mind when a person knowingly acts with reckless and neglectful behavior and that it is said to be present when a person has knowledge and knows the direct consequences of his or her own actions (p 45).  In addition, "A person who acts negligently, and thereby endangers others, may be found guilty of a crime when harm occurs, even though no negative consequences were intended" (Dolatowski, et al, 2010 p 46).

Furthermore, the defendant's act is liable because she was conscious about her actions; the defendant stated that she did not want the relationship to dissolve.  If the act is not conscious and without intent, it remains liable and criminally neglectful.  Many behavioral scientists question if the offending behavior falls under unconscious causation and if so, can consciousness be the immediate cause of behavior?  Maybe this is why not many behaviorist or psychologists are expert witnesses in these cases.  Nevertheless, I concur with Supreme Court Justice Oliver Wendell Holmes comment, Even a dog distinguishes between being stumbled over and being kicked (p 47)

One international case is similar to People v Jensen, 222 Mich App 575; 564 NW2d 192 (1997), defendant Stephen Kelly of Glenochil Scotland, was one of 14 incarcerated drug users infected with HIV by sharing needles with other inmates.  Due to his knowledge of being HIV positive, he participated in the prison’s program receiving counseling, testing, etc.  The defendant engaged in unprotected sex with a female, infecting her with the virus.  The Glenochil Court sentenced the defendant to five years of imprisonment for recklessly transmitting HIV. This sentence is said to be harsh according to international standards.

In conclusion, I support the decision of the aforementioned cases because anyone who engages in sexual intercourse, with the knowledge of their AIDS or HIV positive status, has jeopardized the health and well-being of that partner, an act that can lead to death.  The accused should not only endure criminal prosecution but civilly as well, providing restitution to the victim.  This is a very self-centered crime and although the courts provide some monetary relief to the victims, but there many variables to take into consideration,

Prosecution of someone for transmitting HIV if there is protection.  What if the condom breaks?  Are transmissions of other known sexual diseases open for prosecution as well?  What about when doctors misdiagnose someone with AIDS such as the case with Kaiser many years ago.  Are the hospitals and/or physicians criminally liable? It will be interesting to see how these cases will evolve.

Bird, Sheila M., & Brown, Andrea JL.  (2001). Criminalization of HIV transmission: Implications for public health in Scotland.  British Medical Journal, 323(7322), 1174-7.  Retrieved June 23, 2010,   from Health Module.

Coffey, G. (2009). Codifying the meaning of 'intention' in the criminal law. Journal of Criminal Law, 73(5), 394-413.)

Dolatowski, J., Hall, D.  & Schmalleger, F. (2010), Criminal Law Today, 4th Edition: Prentice Hall

People v Jensen, 222 Mich App 575; 564 NW2d 192 (1997). Retrieved from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=mi&vol=appeals\082898\jensen&invol=2

Note: This article has been modified for the general audience. The original writing with many more citations, purposed for a MS Criminal Justice (Law) class.
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