Assault conviction for unprotected sex reversed, says Minn. Supreme Court

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MINNEAPOLIS, MN — An HIV-positive man cannot be prosecuted for assault for having unprotected sex with a consenting partner, the Supreme Court has ruled.

The court found the statute under which he was convicted, Minn. Stat.sec. 609.2241, subd. 2(2) to be ambiguous and construed it to apply only to the donation or exchange for value of blood, sperm, organs or tissue.

The decision, State v. Rick, was unanimous, with Justices David Lillehaug and David Stras recused. Chief Justice Lorie Gildea wrote the opinion, which affirmed the Court of Appeals.

“We acknowledge that the communicable-disease statute presents difficult interpretation issues and that the Legislature may have, in fact, intended something different. If that is the case, however, it is the Legislature’s prerogative to reexamine the communicable-disease statute and amend it accordingly,” the court said.

Criminalization of sexual conduct

Daniel James Rick was charged with attempted first- degree assault by communicable disease, by attempting to transfer a communicable disease to D.B. by either sexually penetrating D.B. without first informing D.B. that Rick had a communicable disease, in violation of Minn. Stat. sec. 609.2241, subd. 2(1), or by a transfer of sperm to D.B., in violation of subdivision 2(2).

A jury found Rick not guilty of violating subd. 2(1), but guilty of violating subd. 2(2).

The District Court denied Rick’s motion for judgment of acquittal or a new trial. He was sentenced to 49 months in prison, with execution stayed for five years.

The Court of Appeals, finding the statute ambiguous, reversed. The state sought further review.

It argued that subdivision 2(2) of the communicable-disease statute — the provision that is the subject of Rick’s conviction — criminalizes sexual conduct that involves the transfer of sperm. Rick, on the other hand, argues that only subdivision 2(1) of the communicable-disease statute — the provision that he was acquitted of violating — applies to sexual conduct. In addition, Rick argues that if subdivision 2(2) does apply to sexual conduct, it is unconstitutional.

Definition of ‘transfer’

The court did not address the constitutionality of the statute but instead based its opinion on a close textual analysis and good grammar. It first looked at subdivision 2(2) to determine whether the term “transfer of sperm” applied to Rick.

It said that the statute defines transfer as a verb, i. e., “to engage in behavior that has been demonstrated epidemiologically to be a mode of direct transmission of an infectious agent which causes the communicable disease.” But subdivision 2 uses the word transfer twice, as a verb in the first sentence and as a noun in paragraph (2), rendering the statute ambiguous.

The court concluded that the statutory definition of transfer did not apply to subdivision 2 (2). Firstly, applying that definition, the statute essentially says that it is a crime to transfer if the crime involved transfer. “If we applied the same statutory definition of ‘transfer’ in both places, our interpretation would render the statute redundant and we would fail to give independent effect to every word in the statute,” the court said.

Secondly, it would violate the rules of grammar to apply the statutory definition of transfer when used as a verb to the use of the word as a noun. Finally, the court said, under the statutory definition, the direct object of the word transfer is the infectious agent. But when the word is used as a noun the Legislature is addressing blood, sperm, organs or tissue, the court said.

The court then determined the meaning of transfer in subd. 2(2). Looking at the context of the word, the court determined that “a common attribute shared by the terms blood, sperm, organs, and tissue is that, in the medical context, they are assets that a person can either donate or exchange for value.” Applying that definition, the transfer of sperm by sexual conduct is not covered by subd. 2(2).

The court then resolved the ambiguity by use of the rule of lenity, which mandates a narrow construction of an ambiguous criminal statute, and an examination of the legislative history. That “compels the conclusion that ‘transfer’ in subdivision 2(2) addresses the donation or exchange for value of ‘blood, sperm, organs, or tissue,’” the court said.

“[S]ubdivision 2(2) is inapplicable to Rick’s conduct, which indisputably did not involve the donation or exchange for value of his sperm,” the court concluded.

Incarceration predicted

“This was a tough one and we knew it,” said Hennepin County Attorney Michael Freeman, who argued the case at the Supreme Court. “Rick’s conduct was such that we felt we had to [prosecute] … We thought a fair reading of the statute covered [his actions]. We believe Rick is a sexual predator who endangers other people.”

Freeman said there are other pending prosecutions of Rick under subdivision 1 of the statute and also for failure to register as a sex offender. “He’s going to do some time before we’re done.”

But Rick’s attorney, Grant Smith, is confident that his client will prevail on future prosecutions. “Mr. Freeman is making a great deal of noise … the state is trying to demonize [Rick]. The jury found that he told the alleged victim [about his HIV status] before having intercourse.”

Landon Ascheman, Smith’s partner, who also represents Rick, welcomed the interpretation of subd. 2(2) as pertaining to medical-type transactions. As far as subd. 1 is concerned, Ascheman said, “This case is not just about our client. The state doesn’t have the power to get into your bedroom this way.”

Minn. Stat. 609,2241, Subd. 2

It is a crime … for a person who knowingly harbors an infectious agent to transfer, if the crime involved:

(1) sexual penetration with another person without having first informed the other person that the person has a communicable disease; [or] (2) transfer of blood, sperm, organs, or tissue, except as deemed necessary for medical research or if disclosed on donor screening forms.