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Public Health Reporting and Testing / AIDS-HIV / Police Power

HIV Carrier Must Notify Sexual Partners - People v. Jensen, 231 Mich.App. 439, 586 N.W.2d 748 (Mich.App. 1998)

(Appeal denied, People v. Jensen, 595 N.W.2d 850 (Mich. 1999)

Michigan has passed a law requiring persons who know they are HIV-infected to notify their sexual partners before any sexual activity.  Defendant was convicted of having sexual contact as defined under the act without notifying her partner of her HIV status.  She was sentenced to 2 year 8 months to 4 years in prison on each of three counts.  She appeals, arguing that the statute is unconstitutionally overbroad because it include both consensual and nonconsensual sexual acts and because it does not require intent.

The court recognized that the first claim, that the statute would require a person being raped to inform the rapist of her HIV status, might be problematic, but that a person whose conduct is constitutionally prohibited cannot void the statute by postulating hypothetical situations that might be unconstitutional.  The court did a much more detailed analysis of the plaintiff's claim that the statute cannot be constitutional because it does not have an intent component.  The court analogized to statute that criminalizes killing someone with a car when the defendant is drunk.  The statute does not require any specific intent to kill, but recognizes that there is intent in the reckless action of driving drunk.  The court found that the legislature intended that the intent in the HIV notification statute be satisfied by the reckless action of having sexual relations without warning about the exposure to HIV.  The court dismissed plaintiff's claim that this would create strict liability for the mentally incompetent because the court found that if someone were truly incompetent to know he/she were HIV infected and having sex, there was a defense available under the general Michigan law on the insanity defense.  The court found that the statute was constitutional and that punishment was appropriately applied under the law.

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