without proffering any authority, the State contends that giving effect to the statute's plain specific intent language would actually thwart the legislature's intended purpose of preventing the intentional exposure of others to HIV. The State argues that any act of sexual intercourse or sodomy by an HIV positive person, even utilizing a condom, creates some element of risk that the virus will be transmitted to the sex partner, so that total abstinence is the only means by which an infected person may avoid exposing another to HIV. Accordingly, the State suggests that the specific intent to expose another to HIV is inherently included in the defendant's general intent to engage in sexual intercourse. Under the State's interpretation, a person infected with HIV must be totally abstinent or risk being prosecuted for a felony each and every time he or she engages in sexual intercourse or sodomy, regardless of whether the act is between two consenting (perhaps married) adults with full knowledge of the virus and utilizing prophylactic measures. We disagree.
The parties did not address whether the State's interpretation might be constitutionally suspect. A person's decision to engage in private, consensual sexual conduct is protected by the United States Constitution. See Lawrence v. Texas, 539 U.S. 558, 156 (2003); Griswold v. Connecticut, 381 U.S. 479 (1965). Nevertheless, if the legislature intended to criminalize all acts of sexual intercourse or sodomy by any person infected with HIV, it could certainly have said so without employing specific intent language. The State's public policy arguments cannot be reconciled with the plain language of K.S.A. 21-3435(a)(1), and we find 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 [the other individuals] to HIV.
The KSC rejected Mr. Richardson's claims that the statute fails to adequately define "life threatening" disease and what constitutes "exposing" someone to such a disease. The KSC held that "life threatening" means "something that poses a threat to life" and that such a definition provides sufficient notice that a person of ordinary intelligence would understand what is prohibited. The KSC noted that intentional exposure to influenza might support a prosecution under this statute, although "the prosecutor's burden of establishing the requisite specific intent may be more difficult to carry."
Finally, the KSC applied this interpretation and held that the state had failed to provide evidence that Mr. Richardson had the required specific intent for conviction under K.S.A. 21-3435:
[T]he State attempts to shift the burden of proof by arguing that Richardson "presented no direct evidence of his own belief that a low viral load could not transmit or expose another to the virus" and that he failed to demonstrate at trial that the sex with either of these women was consensual. Of course, the State has the burden of proving beyond a reasonable doubt each and every element of the crime, including Richardson's specific intent to expose M.K. and E.Z. to HIV. Richardson had no burden to disprove specific intent.
Finally, at oral argument, the State asserted that the trial testimony of Richardson's treating physician established that Richardson had been thoroughly educated on the risks of transmitting HIV through sexual intercourse. That knowledge, the State argues, is a circumstance which would support the specific intent element. However, Dr. Penn's testimony was less than definitive on that point. When asked by the prosecutor whether he had discussed with Richardson "safe or acceptable practices for engaging in sexual contact," the doctor replied, "I think we did early on, but I–I can't give you a time." Subsequently, when questioned by defense counsel, the doctor conceded that his records did not reflect such counseling for Richardson, even though the doctor maintained comprehensive records which should have reflected such a conversation with a patient. In short, the doctor's testimony did not establish the
circumstance which the State now asserts.
Here is coverage of the appeal in the Lawrence Journal-World.