HIV case headed to Minnesota Supreme Court draws national interest

Medical experts and civil liberties advocates nationwide are weighing in on the Minnesota Supreme Court case of an HIV-positive Twin Cities man convicted and later cleared of a felony for having unprotected sex, arguing that the 17-year-old state law under which he was convicted should be rewritten in the interest of science and justice.

At issue is Daniel Rick's felony attempted assault conviction in Hennepin County, even though a jury found he informed his partner he was HIV positive. His attorneys argued that the law he was convicted of applied to medical procedures, not sexual intercourse. Opponents of the law argue that it has a chilling effect on the rights of those who are HIV positive to engage in consensual sex when they've informed their partner.

The American Civil Liberties Union, Minnesota AIDS Project and a handful of national groups have filed friend-of-the-court briefs in State of Minnesota vs. Daniel James Rick. Oral arguments have not yet been scheduled in the case, but are expected to draw intense interest nationwide.

"This is important because, first off, the law criminalizes a disease that shouldn't be criminalized," said Dr. Michael Horberg, chair of the HIV Medicine Association. "It's reliant on old information, an old science and it's a human injustice. "

But Hennepin County Attorney Mike Freeman, who plans to argue the case on behalf of his office before the high court, said both the case and the law are not about persecuting people who live with HIV and AIDS. Instead, he said, it's about stopping Rick, whom Freeman repeatedly called "the worst kind of sexual predator" for allegedly infecting several victims with HIV through unprotected sex.

"To suggest that it's a fundamental constitutional right to infect other people with a serious disease is outrageous on its face, and that's what they're asking," he said.

Minnesota is not unique in laws that criminalize HIV transmission. According to the Center for HIV Law & Policy's Positive Justice Project, 35 states have statutes that enable prosecution or enhanced sentencing under HIV-specific criminal statutes or general criminal laws, such as assault. In Rick's case, there was no proof that his alleged victim contracted HIV from him, hence the attempted assault charge.

"It really shows the Supreme Court that this is something that may need to be decided on a statewide level, and should be addressed in our favor," he said.

In 2011, a Hennepin County jury convicted Rick, 31, of attempted first-degree assault following multiple sexual encounters with a man who eventually tested positive for HIV. That man testified in 2011 that he had sex with Rick several times, both before and after he discovered in 2009 that he was HIV-positive. He testified that Rick never told him about his HIV status, although Rick, who tested positive for the disease in 2006, contended he told his partner he was positive before they had sex, and that he figured his partner was as well.

According to state statute 609.2241, a person commits a crime when transferring a communicable disease through "sexual penetration with another person without having first informed the other person" of their positive status, or by the "transfer of blood, sperm, organs or tissues, except as deemed necessary for medical research or if disclosed on donor screening forms."

The jury believed Rick informed his partner and found him not guilty under the first subdivision of the statute, but convicted him on the second. Rick's attorneys argued the second subdivision was intended to apply to medical procedures such as donation, not sexual intercourse.

The Minnesota Court of Appeals agreed and in a 2-1 decision overturned Rick's conviction last year, reasoning that legislators did not make clear whether it is illegal for people infected with communicable diseases to have unprotected sex if they first notify their partner of their status. Under the law, "communicable disease" means a disease or condition that causes serious illness, serious disability or death.

Teresa Nelson, legal director for the American Civil Liberties Union of Minnesota who cowrote a brief in the case, said laws criminalizing informed sex limits adults' fundamental rights to have relationships and children. A key argument by the ACLU is that medical advancements have lowered the risk of HIV transmission to babies born to positive mothers to nearly zero percent.

"Criminalizing knowing, consenting conduct would interfere with the ability of an HIV positive couple, or a couple with one positive partner, to create a family," she said. "That's very troubling."

Horberg said that while the organization condones safe sex, "If both adults are informed, that is their decision. We certainly would not want to be involved in those bedroom politics." He added that criminalizing such an act could discourage Minnesotans from getting tested for the disease.

Freeman remains steadfast that the statute is unambiguous, even when it comes to informed sex. Rick's case is the only one prosecuted by his office under the statute. As for the language in each of the subdivisions of the statute, he said: "We cannot separate the two. We used an existing law passed by the legislature to prosecute a sexual predator, and I don't back off that one iota."

He said he's pleased to learn about advances in technology, but that they don't apply to people like Rick, whom he said preys on victims.