Criminal Justice
United States: HIV-Positive Rapist's Conviction Upheld
A Maryland appellate court ruled that a man who had committed a sexual assault knowing that he was HIV-positive may be convicted of attempted murder or assault with intent to murder.[1]
While incarcerated in 1991, appellant Smallwood was diagnosed HIV-positive and said that he would practise safe sex in order to avoid transmitting the virus. In 1993, Smallwood and an accomplice robbed a woman at gunpoint; according to the facts, Smallwood then sexually assaulted the woman, causing "slight penetration," without a condom. Convicted in a bench trial, Smallwood received concurrent sentences for armed robbery and attempted rape. Based on his HIV status, Smallwood also received concurrent sentences for attempted murder, assault with intent to murder, and reckless endangerment. Smallwood argued that the evidence could not support a conviction of attempted murder or assault with intent to commit murder.
The appeals court, per Bishop J, upheld the convictions. It cited cases from other jurisdictions upholding convictions where HIV-positive defendants were convicted of attempted murder for spitting,[2] biting,[3] and otherwise assaulting their victims,[4] and stated that Smallwood knew he could transmit a lethal virus by committing rape without a condom. It ruled that the trier of fact could infer that he had intended the foreseeable consequences of his actions.
Dissenting, Bloom J argued that the evidence supported two contradictory inferences as to Smallwood's mental state: specific intent to murder, which would support the convictions; and the wanton, reckless indifference that would support a conviction for the lesser crime of reckless endangerment. Bloom added that the second presumption was more convincing because, if Smallwood had intended to kill, he would have used his gun rather than relying on the speculative chance of transmitting HIV.
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ENDNOTES
[1] Smallwood v State of Maryland, 1995 WL 411379 (Ct Special App of Md, 13 July 1995). Reported in Lesbian/Gay Law Notes September 1995, at 126-127.
[2] Weeks v State, 834 SW 2d 559 (Tex Ct App 1992).
[3] State v Smith, 621 A.2d 493 (NJ Superior Ct App Div, 1993).
[4] State v Haines, 545 NE 2d 834 (Ind Ct App, 1989).