An Iowa Man Is Prosecuted for Intentionally Exposing a Woman to HIV:
Why Such Cases Are Difficult for the Criminal Law

By SHERRY F. COLB

Wednesday, Aug. 24, 2005

Recently, an Iowa man, Dewayne Boyd, was charged with intentionally transmitting the virus that causes AIDS. Boyd allegedly failed to warn his extramarital sexual partner of his HIV status prior to engaging in sexual relations with her.

Boyd's prosecution raises some important questions about the role of our criminal law. First, it asks us to consider the culpability of one who spreads HIV to unwitting sexual partners. Second, it asks us to decide how best to protect potential victims from the spread of the virus. And finally, it forces us to confront the question whether the criminal law is primarily about the condemnation of wrongful behavior or the prevention of further harm, when the fulfillment of these two goals point in different directions.

Is Dewayne Boyd Culpable?

On the facts reported, Boyd is not a terribly sympathetic figure. He has allegedly known since 1991 that he was infected with the virus that causes AIDS. Notwithstanding this knowledge, he married a woman and failed to tell her of his HIV status, ultimately infecting her with the virus.

As if this betrayal were not enough, Boyd allegedly went on to cheat on his wife, only months after their wedding and while she was sick and in the hospital, thereby exposing additional unwitting victims to HIV. (Boyd's father-in-law, Michael Locascio, reported Boyd to the authorities when he learned of the extramarital liaison.)

Even after spreading the virus, moreover, Boyd apparently failed to reveal what he had done to his victims, thereby precluding early intervention that could have enhanced their health prospects.

Though there have been promising new developments in treatments that can delay the onset of full-blown AIDS and thereby prolong the lives of people infected with HIV, the disease continues to be debilitating, incurable, and frequently resistant to available treatments. To infect another person with the virus that causes AIDS is therefore to cause another person serious harm and eventual death.

Given these realities, it seems fair to judge the spreading of HIV in this manner as culpable conduct, comparable to other acts of violence that can and do result in death. Let us briefly, however, play the devil's advocate and attempt to defend Dewayne Boyd's conduct.

Contrasting HIV Exposure with Other Acts of Violence

Ordinarily, most of us probably think of violence as nonconsensual and as intentionally destructive. For example, if Charlie Criminal repeatedly beats Vincent Victim with a tire iron, he is guilty of an aggravated assault. Vincent, moreover, most likely did not consent to Charlie's beating him (although consent, in any event, does not usually represent a defense to aggravated assault). And finally, Charlie almost certainly meant to harm Vincent. The actions that Charlie took seem inherently to reflect the intention and desire to overpower another person's will and cause pain.

Contrast this description to one of Dewayne Boyd's conduct. Boyd engaged in consensual sexual behavior with an adult woman. We do not know whether Boyd bore the woman with whom he had sexual relations ill will, but it is possible that he did not. Dewayne Boyd could plausibly claim that he had wanted to satisfy his sexual urges -- nothing more, and nothing less -- and that he did not wish for anyone to become ill in the process.

Furthermore, Boyd might say, any adult having sex in today's world should assume that his or her partner is HIV-positive and act accordingly. Whether that means using a condom or opting for abstinence, the woman with whom Boyd had sex had those choices available. On the facts reported, he did not force anyone to do anything, and he did not withhold facts that were entirely unforeseeable.

There is, of course, a response to this argument: With knowledge comes responsibility. And ill will is not a prerequisite of devastating violence.

It is sadly true, in today's world, that anyone could potentially be carrying the HIV virus. For that reason, condom use is advisable even if neither partner believes that he or she is infected. For that reason as well, people who donate blood for transfusions will have their blood tested for HIV, even if they indicate that they are HIV-negative on the form they fill out prior to donation.

This reality, however, does not relieve people who know that they carry the virus from the responsibility to refrain from acts that unnecessarily expose other people to the disease. For such people to donate blood, for example, would be grossly irresponsible. Those who are HIV-positive, then, are different in their obligations to others, from those who "might be" HIV-positive (in the way that everyone "might be" as long as infection has not been ruled out).

Consider the following example. There are foods, like raw eggs, that -- on occasion -- are infected with toxins that cause food poisoning. Notwithstanding this fact, some people still choose to ingest raw eggs (for example, when they eat cookie dough prepared with eggs). Such people are taking a chance that they will become ill with food poisoning. One might even say that they are being negligent in guarding their own health and safety.

Still, if Benjamin Baker knows that a particular batch of cookie dough is infected with salmonella and offers it to Marie Martyr for a taste, Benjaminhas poisoned Marie. And that remains the case even if Benjamin did not want Marie to get sick -- he just enjoys having people praise his skillfully prepared cookie dough, and he hoped Marie would stay well. Benjamin gave Marie the cookie dough in spite of rather than because of the salmonella taint. Yet knowingly serving a person poisoned food is an act of violence, even when the sort of food served is inherently dangerous, and the victim therefore perhaps should have "known better" than to risk eating it.

By analogy, Dewayne Boyd committed acts of violence against the woman with whom he had sex, even though she consented to sex and could have taken universal precautions against exposure to HIV. The criminal law, accordingly, is justified in condemning his behavior.

Minimizing Harm

In addition to punishing wrongful or culpable conduct, however, the criminal law also serves a deterrent function. The purpose of enforcing the law is not solely to dispense justice, but also to protect the public from further harm. And this second goal could conflict with the first, if we regularly subject people like Dewayne Boyd to criminal penalties.

It might seem, at first glance, that punishing Boyd for his culpable conduct is entirely consistent with minimizing further harm. After all, if he is not punished, then he may continue to act irresponsibly and spread HIV to as many unwitting women as he can attract. Removing Boyd from circulation among the population of potential victims therefore seems like a practical idea.

Furthermore, if others see Boyd being punished for his misconduct, then perhaps they will hesitate before proceeding in the way that he did. We can thus accomplish the criminal law's goals of retribution, specific deterrence, and general deterrence, all in one fell swoop.

There is just one unarticulated assumption in this analysis the rebuttal of which might prove fatal to the efficacy of punishment as a deterrent in this context. The assumption is that HIV-infected persons who remain sexually active after infection know that they carry the virus that causes AIDS. That assumption might well be unfounded.

HIV testing -- though recommended -- is generally not mandatory. Accordingly, a necessary condition for criminal liability for exposing others to the virus -- the knowledge that one is HIV-positive -- is something over which the potential culprit has control. The lesson that a sexually active individual might take from the prosecution of a man like Boyd is, therefore, that he should keep himself ignorant of his own HIV status.

This is not simply a hypothetical concern. A person who is most likely to carry HIV -- someone who has had unprotected sex with many partners -- may already be avoiding getting tested, for reasons unrelated to the criminal law. It is part of the human condition that we avoid bad news, even when knowing the facts could mitigate their effects. How many of us have delayed visiting the doctor when we suspected that something was wrong?

Add to this existing incentive the potential for criminal prosecution, and the people most in need of HIV counseling might avoid testing even more studiously than before.

The reader could be wondering what difference such avoidance would make. Even if we can do so, why should we bother trying to motivate a person who has unprotected sex but has thus far avoided testing to get tested? What good would it do?

Think again of the person who avoids the doctor because he does not want to hear bad news. Once that person actually goes for an appointment, despite his misgivings, the doctor has the opportunity to tell her patient about medical treatments and to urge him to do what he can to avoid making other people sick.

For the same reason that we are apt to condemn Dewayne Boyd for knowingly exposing other people to HIV, a person with a conscience is less likely to continue having unprotected (and unwarned) sex once he actually knows that he is HIV-positive, than he was before he found out. Remaining in a state of denial becomes much more challenging once a person is confronted explicitly with the truth. It takes a level of culpability that, we hope, most people lack.

A Conflict Between Two Worthy Goals of Our Justice System

There may therefore exist a serious tension between two of the primary goals of the criminal justice system, when it comes to prosecuting people like Dewayne Boyd.

On the one hand, if the accusations are true, then Boyd appears to be culpable for having knowingly exposed at least one woman to a deadly virus through unwarned sexual contact. Furthermore, in his particular case, the knowledge that he was carrying HIV did not appear to change his behavior: it did not trouble his conscience enough to stop him from spreading the virus. On the assumption that the allegations are true, Dewayne Boyd thus richly deserves to be punished for what he did.

On the other hand, when society punishes Dewayne Boyd, it does more than dispense justice to a particular person. It also sends a message. For those who already know they are HIV-positive, the message is a useful one: do not expose other people to the virus through unprotected sex, or you may face criminal penalties.

According to the CDC, however, an estimated 25% of HIV-positive individuals are unaware of their status. Even more significantly, a majority of new cases have been spread by people who did not know their status.

For the estimated hundreds of thousands of people in this country who do not know they are HIV-positive, therefore, the message of Dewayne Boyd's prosecution could be a counterproductive one: if you suspect that you may be HIV-positive, then getting tested will turn future unprotected sex into a crime. For the many people who are on the fence when it comes to whether they should face the frightening prospect of a positive result, this message may prevent testing. Thus, paradoxically, it may increase the incidence of the very act for which Dewayne Boyd is being prosecuted: transmission of the virus.

This would be a tragic result, and yet, it feels wrong to allow someone who knowingly exposes others to HIV to get away with it. The case of Dewayne Boyd may ultimately be one of those cases that seem difficult and, on further reflection, truly are difficult.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her columns on criminal law and procedure, among other subjects, may be found in the archive of her work on this site.

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