HIV Transmission Can Result in Criminal Charge

A Broward County man has been charged with criminal transmission of HIV after investigators say he kidnapped a 10-year-old boy from a party and sexually assaulted him.
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The criminal transmission charge arises because the suspect reportedly knew he had HIV or AIDS. Our Fort Lauderdale sex crimes defense attorneys know that there is no indication that the child was actually infected, as that isn’t required by law.

Florida Statute 755.0877(5) and (6) holds that an offender who tests positive for HIV need not actually infect the alleged victim. All that is required is that the offender knew he or she was HIV positive, that a sexual act or some other potentially-infecting action occurred, and that either the consent of the victim has been successfully challenged or the offender did not disclose his or her condition to the other person.

All of these elements must be proven in order for a conviction to stand.

Sexual conduct is not the only way this charge might arise. Back in 2011, a suicidal suspect was being arrested on a Baker Act by a Broward County Sheriff’s Deputy when he began to resist arrest. During the struggle, the suspect attempted to bite the deputy. Even though the deputy was never infected – indeed, the two never actually made contact – he was still charged with criminal transmission of HIV because he attempted to bite the deputy.

HIV, or human immunodeficiency virus, is the retrovirus that causes AIDS. There is no cure for AIDS, though the condition is now treated with a cocktail of drugs that can significantly prolong a person’s life.

HIV transmission occurs only through very specific bodily fluids, which are blood, vaginal secretions, semen and breast milk. It’s very rare for the disease to be transmitted through a bite, but it’s not entirely unheard of, especially if the bite cut through the skin and drew blood.

According to a 2008 study by the Kaiser Family Foundation, Florida had the largest number of inmates in state or federal custody (higher than 3,600) who are reported to have tested positive for HIV. While the U.S. average population has a 1.5 percent positive infection rate, Florida’s inmates tested positive at a rate of 3.6 percent.

(Another 15 to 40 percent of inmates are believed to be infected with hepatitis C, according to the Florida Department’s Health Bureau of HIV AIDS.)

When a person is convicted of this offense, they face the possibility of criminal quarantine community control, as defined in Florida Statute 948.101. While the court may define the exact conditions, you might be subject to intensive supervision, including 24-hour electric monitoring and confinement to a designated residence during certain hours.

Possible defenses to this charge would include an assertion that you did not know you were HIV-positive.

Alternatively, we might purport that the alleged victim knew of your condition, yet consented anyway. This might have seemed impossible a decade ago, but advances in medicine mean that a sexual partner of an HIV-infected person may never themselves become infected, or if they do, it’s no longer a death sentence.

We might also argue that the alleged act never took place or that the contact was so minor as to created an unlikely transmission scenario.

Every case will be different. It’s important if you are facing a charge like this to seek legal council immediately.

If you are charged with a crime in Palm Beach or Broward counties, contact the Law Offices of Leifert & Leifert, a Partnership of Former Prosecutors, for a free consultation to discuss your rights. Call 1.888.5.DEFEND.

Additional Resources:
Florida Man Charged With Criminal Transmission of HIV to a Child After Raping Him, April 3, 2013, By Chris Joseph, Broward New Times
More Blog Entries:
Overzealous Prosecution Should Be Met With Experienced Defense, Feb. 27, 2013, Fort Lauderdale Sexual Assault Defense Attorney Blog

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