HIV felony conviction overturned

Citing a lack of clarity in state law, the Minnesota Court of Appeals on Monday overturned the felony conviction of a man who infected his sexual partner with HIV, even though a jury found he gave fair warning that he had the disease.

The 2-1 decision is a victory for Daniel James Rick, 31, and his attorneys, who challenged his October 2011 conviction of attempted first-degree assault, saying the prosecutors used a vague interpretation of a 17-year-old state statute that left the jury no choice but to find him guilty.

Hennepin County Attorney Mike Freeman, who said the prosecution was the first of its kind in the state using the statute, plans to appeal the ruling to the state Supreme Court.

The Appeals Court reasoned 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.

"Although we agree that the Legislature generally intended to prevent the spread of serious communicable disease, we find little support ... that the Legislature clearly and unambiguously intended to prevent the spread of disease by criminalizing informed sexual penetration between consenting adults," Judge Michelle Ann Larkin wrote.

Statute's meaning at issue

The alleged victim testified last year that he had sex with Rick several times before and after he discovered in 2009 that he was HIV-positive. He testified that Rick never told him about his HIV status. Rick, who tested positive for HIV in 2006, testified that he told his partner he was HIV-positive before they had sex, and that he figured his partner was as well.

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, not sexual intercourse.

The Appeals Court agreed, noting that the term "vaginal secretions" was absent from the language, although HIV and other communicable diseases can be transferred from a woman to a man during intercourse.

"We presume the Legislature did not intend to enact a law that subjects only men, and not women, to criminal liability for identical conduct," Larkin wrote.

In his dissent, Judge Larry Collins wrote that the language in the statute's subdivision is clear. If it applied only to medical procedures, he wrote, a clear exception would be made for cases of sexual penetration.

"Any reasonable person reading this statute would understand that he may engage in unprotected sexual activity as long as he discloses his disease status to the other person, but that he should not transfer sperm to the other person," Collins wrote.

Rick's attorney, Grant Smith, lauded the decision, which recognizes what he called the flaws in a "hastily written statute."

"What the Court of Appeals said was that if you're open and honest with your partner, and your partner has sex with you anyway, you're not going to be criminally liable under this statute," he said.

Freeman disagreed, saying the law was written specifically for cases like Rick's. "This conduct is exactly what the Legislature wanted to stop," he said.

Rick received four years' probation following the conviction, but he faces three more counts of attempted first-degree assault and third-degree criminal sexual conduct in earlier cases.

He was charged in February 2010 with raping a drunken man after a night out in downtown Minneapolis, transferring the virus to him.

Rick also pleaded guilty last year to felony third-degree criminal sexual conduct for having sex with a 15-year-old in Sherburne County. He received two months' jail time and probation.