Sex Offenses

Like other areas of law, sex offense law has been affected by the health concerns related to the human immunodeficiency virus (HIV) and ACQUIRED IMMUNE DEFICIENCY SYNDROME (AIDS) epidemic.

In 1990, Congress passed the Ryan White Comprehensive AIDS Resource Emergency Act (42 U.S.C.A. §§ 300ff et seq.), which requires states to prosecute people who knowingly or intentionally expose others to the virus through sexual contact, blood or tissue donations, or sharing of hypodermic needles. States must do so in order to be eligible for federal grant money.

Some states have used traditional criminal statutes to prosecute such offenders, by charging them with attempted murder or assault. For example, in State v. Haines, 545 N.E.2d 834 (Ind. Ct. App. 1989), the defendant was convicted of attempted murder for biting, scratching, spitting, and throwing blood on others with the intent to infect them with his HIV condition. In Zule v. State, 802 S.W.2d 28 (Tex. Ct. App. 1990), the court upheld the conviction of aggravated sexual assault and transmission of HIV where the defendant, who knew that he was HIV positive, engaged in sodomy with a 15-year-old boy who, two years later, tested positive for HIV.

Approximately half of the states have specific statutes that address the crime of knowingly transmitting HIV through sexual and other conduct. For a defendant to know that he is HIV positive is enough to establish intent under these statutes. Many of these statutes forbid "intimate contact" or conduct reasonably likely to result in the transmission of "bodily fluids." These statutes have withstood constitutionality challenges that they are vague (People v. Dempsey, 242 Ill. App. 3d 568, 610 N.E.2d 208 [1993]; People v. Russell, 158 Ill. 2d 23, 630 N.E.2d 794 [1994]. Consent is generally a defense to these crimes; however, lack of medical evidence supporting a likelihood of transmission or a lack of actual transmission of the disease is not a defense.

Another legal development that has arisen over the public concern about HIV and AIDS is mandatory AIDS testing of accused and convicted sexual offenders. In 1990, Congress passed the CRIME CONTROL ACT (42 U.S.C.A. §§ 3756 et seq.), which requires HIV testing of sex offenders when specifically requested by a victim of sexual assault. In response, most states enacted laws requiring individuals accused of certain crimes to be tested for AIDS. Some states mandate pre-conviction testing; others require post-conviction testing. In some states, testing is permitted if the alleged victim can demonstrate a compelling need to have the test results.

These laws have been challenged in the courts on the grounds that they violate privacy rights, FOURTH AMENDMENT rights against unreasonable searches, and the PRESUMPTION OF INNOCENCE of criminal defendants. Most courts have rejected such claims based on the Supreme Court's decision in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), that a routine blood alcohol test is not a substantial intrusion into one's bodily integrity. Reasoning by analogy, most courts have held that a blood test for AIDS, where necessary to further an important government interest in the health and safety of the victim, is constitutional.