A HIV positive man has been found guilty of a felony that occurred during a mutually agreed upon sexual encounter, due to a little used state statute, as reported by the Star Tribune and others.
Allegedly, the man, D.J.R., 30, disclosed that he was HIV positive prior to having sex with the victim.
The jury believed that D.J.R. disclosed his condition, but still found him guilty of attempted first-degree assault due to the possible transference of a disease.
Landon Ascheman, D.J.R.'s defense attorney, stated that the prosecuting attorney took a broad interpretation of statute 609.2241 to find his client guilty. He is planning to appeal the verdict.
The state law, 16 years old, was divided into two parts by the jury in making its verdict. The first section reads that any person that transfers a communicable disease during "sexual penetration with another person without having first informed the other person" is guilty of a crime.
The second section, reading, "transfer of blood, sperm, organs or tissue, except as deemed necessary for medical research or if disclosed on donor screening forms" is also a crime.
D.J.R. was found guilty only in the second section of the statute.
Ascheman argued that the second section of the statute is intended for medical procedure analysis, and does not have anything to do with his client engaging in consensual sex.
Mike Freeman, the Hennepin County Attorney, said, "You look at what the Legislature is trying to do, they set it forth in clear language, and does what he did fit in with the language of the statute? He knowingly transferred these fluids through unprotected sex knowing he had HIV, and knowing HIV can be deadly, that is not overly broad."
Freeman argued that the statute clearly relates to all communicable diseases that have the potential to cause serious illness, disability or death. He also disagreed with the jury's belief that D.J.R. disclosed his HIV condition.
But Freeman was happy that the jury found D.J.R. guilty, and was able to use the little-known statute.
In defending the use of the statute, Freeman said it "would be abusing our discretion" if any two partners would be routinely charged for having unprotected sex.
D.J.R. met the victim, while the latter worked at the Saloon Bar, in May of 2009. The victim recognized D.J.R. from an online chat, the two began to converse and later, after he was done with his work shift, the victim accompanied D.J.R. to his home.
The two proceeded to have unprotected sex.
Per prosecutors, D.J.R. did not disclose his condition to the victim, while Ascheman said that he did.
The victim tested HIV positive in January 2006. In the complaint it is stated that the victim was not HIV positive prior to the encounter with D.J.R. The victim has since received counseling about safe-sex practices.
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