US: HIV exposure conviction overturned by Kansas Supreme Court

On Friday, the Kansas Supreme Court overturned the HIV exposure conviction of Robert Richardson in Lyon county because the case ended up being a discussion of infectiousness, rather than one where the prosecution provided evidence that proved intent - which would have simply required testimony from a complainant about nondisclosure and non condom use.

Richardson's case is somewhat complicated by the fact that he had previously been found guilty, in another county, of four counts of HIV exposure involving three women. Although originally sentenced to 32 months in prison, the Lawrence Journal-World reports that he "was later re-sentenced to two years probation" and that he was "released from supervision on the Douglas County cases in February."

So this appeal was about whether Richardson should serve time for HIV exposure in Lyon county. The Emporia Gazette reports that:

Richardson's defense had said that the prosecution had failed to establish that HIV is always a life-threatening disease; that he had actually exposed the victims because of lack of evidence that bodily fluids were exchanged during intercourse; or that he had the specific intent to expose his sexual partners to HIV.

The Emporia Gazette article then quotes Kansas Supreme Court Judge Lee A. Johnson who exaplains how and why he made the decision.

The trial, which took place without a jury in front of Judge Jeffry Larson,

"consisted entirely of testimony from two medical doctors, Dr. Christopher Penn for the prosecution and Dr. Clifton Jones for the defense."

“The testimony of both doctors concentrated on whether HIV may be transmitted when a viral load level is low or undetectable and the effect of the virus on an infected individual’s lifestyle."

Richardson’s “viral load” test in February 2005 had revealed 11,700 parts per millileter, considered a “medium level of the virus.” A new medication was prescribed and Richard’s viral load test in November 2005, after the incidents of sexual intercourse, had dropped significantly.

“The result was a viral load level of less than the minimum which could be measured, i.e., less than 50 parts per milliliter,” Johnson wrote.

This is interesting, given what we now know to be the Swiss statement. However, being somewhat ahead of their time, these arguments failed in the original trial, but what the State failed to do in this trial, explains Judge Johnson, was prove that Richardson had intended to expose the two female complainants to HIV.

Johnson wrote that in addition to the general intent requirement that almost always is in place, some crimes require an additional, specific intent. In this case, the law states it is unlawful for someone who knows he or she is infected with a life-threatening communicable disease to knowingly “engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life threatening communicable disease.”

The state Supreme Court found that the statute creates a “specific intent crime. The State was required to prove that Richardson, knowing he was infected with HIV, intentionally engaged in sexual intercourse ... with the specific intent to expose them to HIV.”

Johnson wrote that the state presented evidence at the preliminary hearing from the two women involved with Richardson to establish that Richardson had HIV when they had sex with him, that he did not use a condom, and that he had falsely represented to one of the women that he was free from sexually transmitted diseases.

“These are prime examples of proven circumstances that could support an inference that Richardson intended to expose (the women) to HIV,” Johnson wrote. “Inexplicably, the State chose not to present any of this information at trial, and those facts were not included in the parties’ stipulation.”

Johnson wrote that the evidence was insufficient to support the convictions, prompting the justices to reverse both cases.

So, although this might be good news for Richardson, it's not good news for anyone else who may be prosecuted under Kansas's HIV exposure law. All that is required for a conviction is for the complainant to testify that the defendant, knowing he (or she) was HIV-positive, did not use a condom and did not disclose (or concealed) his (or her) HIV status.

US: Kansas man's 32 month sentence for HIV exposure doubled

A man already convicted to 32 months' prison in one Kansas county has been sentenced to another 32 months for the same 'crimes'. I previously reported his guilty verdict in December, and erroneously had him from Missouri, rather than neighbouring Kansas (I have now corrected the original story). Both trials took place in different counties in Kansas. Since the sentences will run consecutively, his punishment has essentially been doubled.

Update: I originally read the judge's quote - “I was not aware that those prior convictions involved the same young women.” - as meaning that his prior conviction DID involve the same women; when, actually, it may mean the opposite. So this may not be 'double jeopardy'.

However, this case is very interesting because his prior conviction is being appealed because, according to the man's lawyer, "the current Kansas law is unconstitutional...[because] the law essentially made sexual relations illegal for people who have tested positive for HIV."

This is current Kansas law (taken from The Body.com)

Kans. Stat. Ann. § 65-6005

Class C Misdemeanor

Any person violating, refusing or neglecting to obey any provision of the rules and regulations adopted by the Secretary of Health for the prevention and control of AIDS shall be guilty of a class C misdemeanor.

This case is also interesting because the man's defence - and remember this is for HIV exposure, not transmission – was that he had an undetectable viral load, and therefore did not believe there was a significant risk of transmission. This was rejected by the judge; however, many informed people with HIV are concluding what many experts privately believe - that an undetectable viral load in the blood almost always means that transmission is at best unlikely, and potentially impossible.

See this very interesting (orginally private) online discussion between Swiss HIV expert, Dr Bernard Hirschl and a group of very informed patient advocates, which highlights the tension between private and public statements.

The full report, from The Emporia Gazette, is below.

Robert Richardson sentenced in HIV-exposure case

Originally published 01:23 p.m., January 17, 2008
Updated 01:23 p.m., January 17, 2008

Robert Richardson was sentenced Wednesday to serve 32 months in prison on each of two cases of exposing people to the HIV virus he carries.

The sentences were handed down by Judge Jeffery J. Larson Wednesday afternoon in Lyon County District Court, after hearing a prepared statement from one of the victims as well as a statement from Richardson.

The sentences are to run consecutively to earlier sentences imposed on those charges in Douglas County. The Douglas County sentences already have been appealed to the Kansas Court of Appeals and have not been heard yet.

Defense attorney Stephen Atherton handed Larson paperwork to initiate an appeal of the sentences at the close of the hearing.

Atherton said after the sentencing that the appeal is based on a belief that the current Kansas law is unconstitutional. He said that the law essentially made sexual relations illegal for people who have tested positive for HIV.

Richardson’s trial had been to the judge, rather than to a jury. Defense and prosecution witnesses stipulated to certain facts in the case, and testimony was given by medical personnel. As part of the agreement, the prosecution had agreed not to oppose concurrent sentencing if the defendant were convicted.

“Mr. Richardson was advised at that time that the court does not have to abide by that agreement,” Larson said.

Neither of the women are from Lyon County, but came to Emporia on several occasions to meet Richardson at a motel while he was here on work-related travel in the fall of 2005, according to testimony presented at Richardson’s preliminary hearing last year.

One of the victims attended the hearing to present a statement about how Richardson’s actions affected her.

She cited the trauma she underwent after learning that she had been exposed to HIV. She had difficulty sleeping and, when she could sleep, she suffered from nightmares, she said; she also was shocked, devastated, frightened, missed work and had difficulty eating.

She said that she had asked Richardson about sexually transmitted diseases and he said that he carried none.

The risk of “losing my life for the mistake of trusting a friend seems like too high a price to pay,” she said. “... It’s taking something that should have been private and intimate in my life and opening it to ... ridicule.”

Results have been negative in two tests for HIV “but this experience has made me closed and withdrawn from others,” she said.

She asked the judge to order consecutive prison sentences, rather than concurrent terms.

“There is absolutely no reason to think Mr. Richardson will not endanger the lives of others when he is released,” the victim said.

In a statement to the court, Richardson said that he believed he posed no risk to the women when they had sexual intercourse because his HIV is under control with medications.

“I have a lot more knowledge of this disease myself than the general public,” he said. “I’ve been shown time and again ... people will not hear me when I tell about it.”

He said that he cared about the women who later accused him.

“I would have never, never done something I believed would have hurt somebody else,” he said. “ … This disease is not spread by people like me.”

It is spread, he said, by people who do not get tested for HIV and continue to have sexual relations without treatment for the virus.

During the preliminary hearing, evidence was presented that showed Richardson had been diagnosed as HIV positive in 1998.

In his statement on Wednesday, Richardson also asked for visiting privileges with his 20-month-old son, whom he has never seen.

“He has 12 teeth now, and I’ve never held him, or sung him to sleep or kissed his cheek,” he said. “ … I just ask that I can have 10 minutes’ visitation time with my son.”

Larson prefaced the sentencing with remarks to the defendant, saying that he had been impressed by Richardson’s conduct during court proceedings.

“You have proven yourself to be an eloquent speaker in the courtroom, which is not something we see frequently,” Larson said.

He reminded the defendant, however, that while Richardson was aware that the likelihood of transmitting the disease was slight, it did exist and he did not tell the victims of that possibility.

“You made a decision to expose these young women no matter how slight,” Larson said.

When one of them asked if he had an STD, Richardson told her that he did not.

“And (you) were not truthful about it,” Larson said.

He told Richardson that criminal history was one of several factors that needed to be considered in sentencing, including the prior convictions in Douglas County.

“I was not aware that those prior convictions involved the same young women,” Larson said.

After the sentencing, Larson said he would take the visitation request under advisement and discuss risks with jail personnel before making a ruling.

Larson set Richardson’s appeal bond at $50,000 in each case.

US: Kansas man already convicted of HIV exposure in one county convicted again

Conviction is second for HIV exposure

J-W Staff Reports

November 29, 2007

Emporia — An HIV-infected man already convicted in Douglas County of knowingly exposing women to the virus has been convicted in a second county.

A judge found Robert Richardson II, of Lawrence, guilty Wednesday in Lyon County District Court of two counts of exposing another person to a life-threatening communicable disease.

Richardson had waived his right to a jury trial and instead had requested a trial before Judge Jeffry Larson.

Sentencing was scheduled for Jan. 16.

Richardson was sentenced in November 2006 to 32 months in prison after being convicted in Douglas County on four counts of HIV exposure involving three women. It was the first time someone in Kansas was taken to trial and convicted on those charges and one of the few such cases nationwide.

Richardson’s Douglas County victims said he charmed them by making them think he cared for them but he never told them he was HIV-positive.

“The whole thing was just a complete sham and then it makes you not be able to trust other people,” one of the victims told the Journal-World in an October 2006 interview.

None of the women at the time had tested positive for the virus.

After the trial, jurors told the Journal-World that they were appalled by Richardson’s deception, most of all his explanation that his health problems were caused by a heart condition. He claimed he was being truthful by saying he had a “HAART” condition, or highly active anti-retroviral therapy.

Richardson still has cases pending in Wyandotte County and Johnson County, Mo.

Originally published at: http://www2.ljworld.com/news/2007/nov/29/conviction_second_hiv_exposure/