New Orleans Attorney: Criminal Exposure to HIV/AIDS Law
In 1987, the Louisiana Legislature passed a bill creating the criminal offense of Intentional Exposure to the Aids Virus also referred to La.R.S. 14:43.5. Under this law, it is a felony to expose someone to HIV without his or her consent. This offense is considered a Sex Crime and a Crime of Violence. The penalty is 0 to 10 years in prison, with or without hard labor., or a fine of $5,000.00, both. If the victim was a member of law enforcement at the time of the crime, the penalty is increased to 0 to 11 years in prison or a $6,000.00 fine, or both. Since this offense is considered a sex crime, the defendant must serve the sentence flat with no good time credit and also register as a Tier 1 sex offender for 15 years after being released from prison. This offense is also probatable, meaning that serving a prison sentence is not mandatory. A judge may elect to sentence an offender to a suspended DOC sentence and order a term of probation plus sex offender registration.
In summary this statute states that no person shall intentionally expose another person to the Aids virus by sexual contact or any other means of contact without the knowing and lawful consent of the other person. – this includes exposure via saliva, stabbing, needles, biting, throwing blood or other bodily fluids.
It is important to note that the Louisiana law only refers to exposure, not transmission of HIV, therefore this offense is not limited to cases where transmission actually occurred. Any person who knows she has HIV/AIDS and who has unprotected sex with another could be charged under this law even if her partner does not contract the disease. The prosecution does not have to prove that the person’s primary motive was to expose, only that she knew that she had HIV and knew what she did was a way in which the virus could be spread.
The leading Louisiana case on this area of law is State v. Gamberella 633 So.2d 595 (La. App 1st. Cir. 1993) where the defendant had both protected and unprotected sex with the victim. The Court failed to distinguish between sex with a condom v. no condom. Hence, we do not know if wearing a condom during sexual relations shields a person from prosecution. The Courts of Louisiana also have not addressed whether oral sex is illegal since there are a few reports of people contracting HIV via seminal fluid during oral sex as well as via blood transmitted during “French Kissing.”
Another important issue to consider is how the Courts define “knowing and lawful consent.” In the Gamberella case, the Court deemed that consent was “knowing and lawful” only when the victim knew that her partner had HIV and understood that sexual contact was a means by which it could be transmitted. If a person who is arrested and charged with a violation of this law, can show that she informed her partner that she was infected and the partner consented to the unprotected sex, the charges should be dismissed. While it is the prosecution’s burden to prove that the victim did not consent, assuming this fact is true and no corroborating evidence exists, a good defense attorney could easily establish a lack of consent through the victim’s testimony. Lawful consent also means that the victim has the legal capacity to consent. This means that victims who were under the age of 18, mentally challenged or intoxicated at the time of the exposure were not legally capable of consenting. Prosecution may not be avoided by arguing consent from someone who lacked the legal capacity.
One of the strongest defenses to raise when defending a charge of criminal exposure to HIV/AIDS is a lack of intent. If the defendant was unaware that she was infected with HIV at the time of the exposure, there can be requisite intent to be guilty of exposing another to AIDS.
An Important Note on Legal Representation
If you have been charged with Intentional exposure to HIV/AIDS Virus or any other sex crime, Contact a lawyer experienced in criminal defense law in Louisiana or the New Orleans area it is imperative that you seek legal advice.