HIV Status Can Be Used to Enhance Criminal Penalties in Texas

By Bo Kalabus

Office: 972-369-0577;

Texas does not have a criminal statute specifically addressing HIV exposure or transmission as a crime; however, people living with HIV (PLHIV) have been prosecuted for HIV exposure under general criminal laws, including attempted murder and aggravated assault. For example, Texas’s aggravated assault statute makes it a felony of the second degree to cause serious bodily injury to another or to use or exhibit a deadly weapon in the commission of an assault. Generally, in Texas a felony of the second degree carries a punishment of a minimum of two up to a maximum of twenty years in jail and a fine up to $10,000. Texas courts have found that the seminal fluid of a PLHIV may constitute a deadly weapon for the purposes of conviction under the aggravated assault statute, such as a vehicle may constitute a deadly weapon in a vehicular manslaughter case. In fact, numerous prosecutions in Texas have led to the incarceration of individuals whose alleged criminal conduct presented no known risk of transmitting HIV. Crimes involving aggravated sexual assault-in which a person engages in various sex acts without someone’s consent or with a child while using or exhibiting a deadly weapon is a first-degree felony, punishable by five to ninety-nine years or life in prison and a $10,000 fine. The landmark case for Texas came in 2006 with Mathonican v. State. In Mathonican, the Court of Appeals of Texas found that the seminal fluid of a PLHIV can be considered a deadly weapon in aggravated assault and aggravated sexual assault cases. The defendant in Mathonican was sentenced to 97 years’ imprisonment for sexually assaulting another individual. The trial court held that the defendant’s seminal fluid was a deadly weapon because of his HIV status. The defendant appealed his case, asserting that the deadly weapon finding was erroneous because HIV status should not be considered a deadly weapon. The court found that seminal fluid may be considered a deadly weapon “if the man producing it is HIV and engages in unprotected sexual contact.” The court reasoned a deadly weapon is anything that can be used to cause death or serious injury, and that the “seminal fluid from an HIV positive man is capable of causing death or serious bodily injury to another person when the HIV positive man engages in unprotected sexual contact.” Even if the defendant did not ejaculate or otherwise expose the complainant to HIV, the court determined that the single fact the defendant’s seminal fluid “as used or as intended to be used” was capable of causing death or serious bodily injury supported the deadly weapon finding, even without proof that it did cause harm or had any probability of causing harm. This reasoning suggests that if a PLHIV engages in any unprotected sexual activity, regardless of the person’s viral load or whether the sexual activity poses any possibility of transmission, criminal liability may apply.

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