Knowingly exposing another to HIV.

• Author: Grishkin, Jennifer
• Position: Maryland

I

Conduct having the potential to transmit the Human Immunodeficiency Virus (HIV) has recently been subject to increased criminal penalties.[1] In many instances, HIV-positive persons alleged to have knowingly exposed others to the risk of contracting the virus have been charged with and convicted of attempted murder,[2] an offense that requires proof of the defendant's specific intent to kill.[3] In these cases, prosecutors usually point to "extrinsic evidence" of the defendant's intent to kill - that is, evidence beyond the defendant's mere awareness of his HIV-positive status and the means of transmission.[4] Sometimes, however, the only evidence of intent is the defendant's own knowledge. In Smallwood v. State,[5] the Maryland Court of Appeals became the first court to tackle the question of "whether knowingly exposing someone to a risk of HIV-infection is by itself sufficient to infer... an intent to kill."[6] Refusing to follow the current judicial trend toward increasing liability,[7] the court answered the question in the negative.

The Smallwood decision has sparked an intense debate. Proponents, including gay rights advocates, AIDS activists, and defense attorneys, have applauded it as "stand[ing] for the proposition that persons with AIDS should be treated like everyone else in the criminal system."[8] They also contend that a conviction in Smallwood could have discouraged voluntary HIV testing, in that someone unaware of his or her HIV status cannot be guilty of knowing exposure.[9] Victims' rights groups and prosecutors, in contrast, accuse the Smallwood court of exalting legal technicalities over justice and ignoring the well-being of the public.[10] This Case Note will argue that, given the facts in Smallwood and the constraints imposed upon such prosecutions by the intent and causation requirements of traditional homicide statutes, the court's holding was the only legally proper result. Morally, however, the outcome was reprehensible and can only be corrected by state enactment of HIV-specific criminal statutes.

II

In Smallwood, the defendant, Dwight Ralph Smallwood, pleaded guilty to charges of raping and robbing three women.[11] The trial court also convicted Smallwood of attempted second degree murder and assault with intent to murder for exposing the women, through rape, to the risk of contracting HIV. Unlike most other attempted murder prosecutions for knowing exposure, however, there was no extrinsic evidence of intent. The only evidence produced by the State to support the charge that Smallwood intended to kill his victims was: (1) his knowledge of his HIV-positive status; (2) his awareness of the possibility of transmitting the virus through unprotected sex; and (3) his failure to use condoms during the rapes.

The Maryland Court of Appeals held the evidence insufficient to satisfy the intent requirement of the attempted murder charges, which required proof beyond a reasonable doubt that Smallwood intended to kill his victims "`under circumstances that would not legally justify or excuse the killing or mitigate it to manslaughter.'"[12] The court held that for circumstantial evidence to support the charge, "it must be shown that the victim's death would have been a natural and probable result of the defendant's conduct,"[13] as is the case when one fires a deadly weapon at a vital part of another person's body. The State had argued that Smallwood's actions were analogous to firing a deadly weapon, but the court rejected this analogy, reasoning that, although death by AIDS is one natural consequence of one occasion of unprotected sex, it is not a sufficiently probable result.[14] While the improbability of transmission was the main ground upon which the Court of Appeals rested its decision, it also noted that Smallwood's actions could be "wholly explained by an intent to commit rape and armed robbery."[15] Therefore, his actions alone could not support the inference that he also had an intent to kill. The court concluded that, in the absence of additional evidence of intent beyond Smallwood's knowledge of his HIV status, it was not possible to infer an intent to kill.

Although its reasoning was fallacious in some respects,[16] the Smallwood court reached the only legally proper result. Because Smallwood's conduct of engaging in unprotected nonconsensual sex can be explained by an intent to rape, the inference that Smallwood acted with reckless indifference as to whether his victims contracted HIV is a much stronger and more reasonable inference than that he acted with the specific intent to...