(Appeal denied, People v. Jensen, 595 N.W.2d 850 (Mich. 05/25/1999)
|||Michigan Court of Appeals
|||Docket No. 210655.
|||231 Mich.App. 439, 586 N.W.2d 748, 1998.MI.42538 <http://www.versuslaw.com>
|||August 28, 1998
|||PEOPLE OF THE STATE OF MICHIGAN, PLAINTIFF-APPELLEE,
BRENDA LEE JENSEN, DEFENDANT-APPELLANT.
|||Muskegon Circuit Court LC No. 94-037564-FH
|||Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General,
Tony Tague, Prosecuting Attorney, and Kevin A. Lynch, Senior Assistant Prosecuting
Attorney, for the people. State Appellate Defender (by Gail Rodwan), for
the defendant on appeal. Amicus Curiae: Jerrold Schrotenboer, for the Prosecuting
Attorneys Association of Michigan.
|||Before: Markey, P.j., and Kelly and Talbot, JJ.
|||The opinion of the court was delivered by: Markey, P.j.
|||Submitted April 3, 1998, at Lansing. Decided August 28, 1998, at 9:15
|||Following a jury trial, defendant was convicted of three counts of knowing
that she tested seropositive for HIV and engaging in sexual penetration
without informing her partner that she was HIV infected, MCL 333.5210; MSA
14.15(5210). Thereafter, the trial court sentenced defendant to concurrent
terms of two years and eight months to four years' imprisonment for each
of the three counts. On appeal, this Court affirmed her convictions. People
v Jensen, 222 Mich App 575; 564 NW2d 192 (1997). Defendant filed her application
for leave to appeal with the Supreme Court. Pursuant to MCR 7.302(F)(1)
and in lieu of granting leave, the Supreme Court ordered:
|||"[T]he judgment of the Court of Appeals is vacated in part and the
case is remanded to the Court of Appeals for further consideration and decision
on the merits of the question whether MCL 333.5210; MSA 14.15(5210) is constitutional.
MCR 7.302(F)(1). In all other respects, leave to appeal is denied because
the Supreme Court is not persuaded that the questions presented should be
reviewed. [456 Mich 931 (1998).]"
|||On remand, we find that the HIV notice statute is neither constitutionally
overbroad nor violative of defendant's rights to privacy or against compelled
|||Initially, we incorporate by reference the extended recitation of facts
set forth in the original Jensen, supra at 577-579.
|||First, defendant asserts that MCL 333.5210; MSA 14.15(5210), which makes
it a crime to fail to inform a sexual partner that one has AIDS *fn1
or is HIV infected is unconstitutionally overbroad because it (1) includes
both consensual and nonconsensual sexual acts and (2) fails to require an
intent to cause harm. We believe that defendant's constitutional challenges
on these grounds fail.
|||"MCL 333.5210; MSA 14.15(5210) states as follows:"
|||((1) A person who knows that he or she has or has been diagnosed as having
acquired immunodeficiency syndrome or acquired immunodeficiency syndrome
related complex, or who knows that he or she is HIV infected, and who engages
in sexual penetration with another person without having first informed
the other person that he or she has acquired immunodeficiency syndrome or
acquired immunodeficiency syndrome related complex or is HIV infected, is
guilty of a felony."
|||"((2) As used in this section, "sexual penetration" means
sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other
intrusion, however slight, of any part of a person's body or of any object
into the genital or anal openings of another person's body, but emission
of semen is not required."
|||As we begin our overbreadth analysis, we are mindful that a statute is
accorded a strong presumption of validity and that we have a duty to construe
it as valid absent a clear showing of unconstitutionality. People v White,
212 Mich App 298, 309; 536 NW2d 876 (1995). Moreover, the constitutionality
of a statute is a question of law that we review de novo. Mahaffey v Attorney
General, 222 Mich App 325, 334-335; 564 NW2d 104 (1997).
|||The overbreadth doctrine is primarily applied to First Amendment cases
where an overbroad statute prohibits constitutionally protected conduct.
People v Cavaiani, 172 Mich App 706, 711; 432 NW2d 409 (1988). The overbreadth
of a statute must be real and substantial; it must be Judged in relation
to the legitimate sweep of the statute where conduct and not merely speech
is involved. Broadrick v Oklahoma, 413 US 601, 614-615; 93 S Ct 2908; 37
L Ed 2d 830 (1973). In Broadrick, supra at 610, the United States Supreme
Court recognized that a person to whom a statute may be constitutionally
applied may not challenge that statute as overbroad on the grounds that
it conceivably may be unconstitutional when applied to others in situations
not before the court.
|||In People v Russell, 158 Ill 2d 23; 196 Ill Dec 629; 630 NE2d 794 (1994),
the Illinois Supreme Court was faced with a similar overbreadth argument
when the defendant challenged Illinois' criminal statute prohibiting the
knowing transmission of HIV to another through intimate contact. *fn2
Upholding the statute against the defendant's constitutional challenge,
the Illinois Supreme Court observed:
|||"In one of the cases before us, the criminal complaint charges that
the defendant Caretha Russell knew that she was infected with the HIV virus
when she engaged in consensual sexual intercourse with Daren Smith without
telling Smith of her infection. In the other case, defendant Timothy Lunsford
is charged with raping a woman at a time when he knew he was infected with
the HIV virus."
|||"Neither the statute nor the cases before us have even the slightest
connection with free speech. Consequently, pursuant to constitutional interpretations
of the United States Supreme Court, defendants' overbreadth argument and
their argument of facial vagueness are inapplicable. Bates v State Bar,
433 US 350, 380; 97 S Ct 2691, 2707; 53 L Ed 2d 810, 833 (1977); Smith v
Goguen, 415 US 566; 94 S Ct 1242; 37 L Ed 2d 605 (1974); Broadrick, [supra
at 611-617]; Grayned v City of Rockford, 408 US 104; 92 S Ct 2294; 33 L
Ed 2d 222 (1972). [Russell, supra at 25-26 (emphasis added).]"
|||In the case at bar, defendant specifically argues that the statute is
overbroad because it fails to limit the offense to consensual sexual acts
but instead seemingly also compels victims of nonconsensual sex who happen
to be HIV or AIDS carriers to inform their attackers of that status. In
formulating her argument, however, defendant fails to differentiate between
the speech of a consensual partner versus a nonconsensual partner, other
than by suggesting that to compel speech from the latter is unfair. Because
defendant does not establish how the statute in question improperly sweeps
within its inclusion both protected and unprotected conduct, this facet
of the defendant's overbreadth analysis is inappropriate.
|||More importantly, however, defendant's conduct, i.e., engaging in sexual
intercourse with the victim without previously telling him that she was
HIV positive, is clearly encompassed by the language of the statute. Accord
State v Gamberella, 633 So 2d 595, 603 (La App, 1993) (upholding the constitutionality
of Louisiana's statute criminalizing the intentional exposure of individuals
to AIDs or HIV without their informed consent). *fn3
Because a person to whom a statute may constitutionally be applied will
not be allowed to challenge that statute on the ground that it conceivably
may be applied unconstitutionally to others in situations not before the
court, Broadrick, supra; Gamberella, supra, we find no merit in defendant's
|||Moreover, because the present case does not involve a victim of nonconsensual
sexual acts, this Court's exploration of any policy arguments regarding
whether a sexual assault victim should be held criminally responsible for
not informing the attacker is also inappropriate. Although defendant does
not question whether the Legislature truly intended to implicate both consensual
and nonconsensual sexual partners within the ambit of the statute, defendant's
behavior in this case fell squarely within the contemplation of the statute.
Moreover, defendant was found competent to stand trial and criminally responsible
for her behavior. The evidence established that she understood the dangers
of having unprotected sexual relations with another person and that she
had a duty to warn them, but she disregarded both. The evidence also established
that defendant consensually engaged in sexual relations with the victim
and purposefully withheld the fact she was HIV infected because she did
not want to "kill the relationship," and wanted people to like
her. We therefore believe that because the statute squarely applies to defendant,
she is also precluded from engaging in this overbreadth analysis. Broadrick,
|||Defendant further argues that the statute is unconstitutional because
it does not contain an intent, or mens rea, requirement. More specifically,
defendant asserts that because the statute does not require a specific intent
to harm, persons who do not understand or appreciate the consequences of
their acts can be found criminally responsible. We disagree.
|||In light of defendant's repeated argument that mentally deficient individuals
will be prosecuted under this statute, we reiterate and remind defendant
that, even though the evidence in the instant case does not support such
a factual situation, if a "person lacks substantial capacity either
to appreciate the wrongfulness of his conduct or to conform his conduct
to the requirements of the law," a finding of criminal responsibility
will be precluded under the legal insanity defense statute, MCL 768.21a(1);
|||With respect to defendant's mens rea argument, we note that fewer than
half the states have criminal statutes penalizing the exposure of others
to HIV, and only a few of those contain an explicit mens rea requirement.
See Idaho Code 39-608 ("Any person who exposes another in any manner
with the intent to infect or, knowing that he or she is or has been afflicted
with [AIDS, ARC, or HIV], transfers or attempts to transfer any of his or
her body fluid, body tissue or organs to another person is guilty of a felony");
Okla Stat tit 21, 1192.1 (it is unlawful for a person who knows he or she
has AIDS or HIV "and with intent to infect another" to engage
in sexual penetration with another where the other person did not consent
to the penetration or had not been informed of the AIDS or HIV); ND Cent
Code 12.1-20-17 (a person with HIV or AIDS who "willfully transfers"
any of that person's body fluid to another person is guilty of a felony
unless the risk was fully disclosed and an "appropriate prophylactic
device" was used). The others, including Michigan's statute, are silent
on this topic except to make it a crime for a person with a known HIV or
AIDS infection to fail to reveal that condition before donating blood, engaging
in sexual penetration, or engaging a prostitute. *fn4
Unfortunately, neither the court in Russell, supra, nor the courts in any
of the other states with similar statutes have resolved this mens rea dispute.
|||Notably, however, in People v Lardie, 452 Mich 231, 256; 551 NW2d 656
(1996), our Supreme Court recently upheld the constitutionality of the statute
that criminalizes causing death by operating a vehicle while intoxicated.
The statute was challenged after the trial court held that it unconstitutionally
precluded the jury from determining the defendant's mental state or intent,
but this Court upheld the statute as creating a "strict liability,
public welfare offense" without requiring the prosecutor to prove mens
rea. Lardie, supra at 235-236.
|||In upholding the constitutionality of that statute, our Supreme Court,
id. at 239-241, 246, made the following observations:
|||"In order to determine whether a statute imposes strict liability
or requires proof of a mens rea, that is, a guilty mind, this Court first
examines the statute itself and seeks to determine the Legislature's intent.
People v Quinn, 440 Mich 178, 185; 487 NW2d 194 (1992). In interpreting
a statute in which the Legislature has not expressly included language indicating
that fault is a necessary element of a crime, this Court must focus on whether
the Legislature nevertheless intended to require some fault as a predicate
to finding guilt. Id. In this statute, the Legislature did not expressly
state that a defendant must have a criminal intent to commit this crime."
|||"Criminal intent is ordinarily an element of a crime even where the
crime is created by statute. People v Rice, 161 Mich 657, 664; 126 NW 981
(1910). Statutes that create strict liability for all of their elements
are not favored. Quinn, supra at 187. Nevertheless, a state may decide under
its police power that certain acts or omissions are to be punished irrespective
of the actor's intent. Id. at 186-187; People v Hatinger, 174 Mich 333,
335; 140 NW 648 (1913). Many of the crimes that impose strict liability
have been termed "public welfare regulation." Quinn, supra at
187; see also Morissette v United States, 342 US 246, 255; 72 S Ct 240;
96 L Ed 288 (1952) (public-welfare offenses). . . ."
|||"Specific intent is defined as a particular criminal intent beyond
the act done, whereas general intent is merely the intent to perform the
physical act itself. People v Beaudin, 417 Mich 570, 573-574; 339 NW2d 461
(1983); People v Langworthy, 416 Mich 630, 639, 644; 331 NW2d 171 (1982).
For a strict liability crime, the people need only prove that the act was
performed regardless of what the actor knew or did not know. Quinn, supra
at 188. On this basis, the distinction between a strict-liability crime
and a general-intent crime is that, for a general-intent crime, the people
must prove that the defendant purposefully or voluntarily performed the
wrongful act, whereas, for a strict-liability crime, the people merely need
to prove that the defendant performed the wrongful act, irrespective of
whether he intended to perform it. Under MCL 257.625(4); MSA 9.2325(4),
the distinction is important only in the rare circumstances where a defendant
was driving when he honestly did not know he had consumed alcohol, which
subsequently caused him to be intoxicated, or where he was forced to drive
for some reason despite his intoxication."
|||". . . Where a statute is a codification of the common law and that
common-law crime includes a mens rea as an element, this Court will interpret
that statute to require a mens rea even if the statute is silent regarding
knowledge as a necessary element. See Quinn, supra at 185-186."
|||"* * *"
|||"Where the offense in question does not codify the common law and
omits reference to the element of intent, this Court will examine the Legislature's
intent in enacting the legislation to determine whether there is a mens
rea requirement. Quinn, supra at 196."
|||Our Supreme Court in Lardie concluded that the Legislature intended to
eliminate the gross negligence requirement that attended common-law involuntary
manslaughter, the crime with which intoxicated drivers who killed were charged
before the statute was enacted. Id. at 250-251. Rather, the Legislature
essentially presumed gross negligence as a matter of law from a person's
voluntarily driving while knowing of the possibility of being intoxicated.
Id. Nevertheless, the Court believed that the Legislature presumably intended
to require proof of a criminal intent for the criminal act of intoxicated
Id. "[W]e conclude that the statute requires the people to prove that
a defendant, who kills someone by driving while intoxicated, acted knowingly
in consuming an intoxicating liquor or a controlled substance, and acted
voluntarily in deciding to drive after such consumption." Id. at 256.
|||Applying the rationale of Lardie to the case at bar, we believe it likely
that the Legislature intended to require some type of intent as a predicate
to finding guilt under MCL 333.5210; MSA 14.15(5210), but that here the
requisite intent is inherent in the HIV-infected person's socially and morally
irresponsible actions. Lardie, supra. Moreover, the Legislature could reasonably
have presumed that it is grossly negligent for an HIV-infected person to
engage in any sexual penetration with another person without full disclosure
of the existence of the HIV infection. What does nondisclosure achieve?
Only further dissemination of a lethal, incurable disease in order to gratify
the sexual or other physical pleasures of the already infected individual.
would permit the other person to either refuse sexual contact or consent
with knowledge of the risks that are being taken. We also believe that the
Legislature's primary concern is stemming the spread of HIV and AIDS throughout
the population (similar to curtailing people from voluntarily driving while
under the influence, as in Lardie, supra). *fn7
Failure to disclose not only places the unwitting participant but also that
participant's other sexual partners at serious risk of premature death.
Indeed, the probable results accompanying nondisclosure are fairly predictable:
death to innocent third parties.
|||Moreover, in Lardie, supra at 264, 267, our Supreme Court also found that
the death caused by intoxicated driving statute required a "causal
relationship" between the defendant's culpable state of mind, i.e.,
intentionally driving while intoxicated, and the other person's resulting
death. Here, the same causal connection exists despite the variety of methods
by which one may contract AIDS or HIV or a myriad of other diseases that
could end one's life. Knowingly engaging in sexual conduct capable of transmitting
HIV without informing a partner of being HIV infected is the culpable state
of mind that can cause the partner's resulting infection and eventual death.
|||Accordingly, although MCL 333.5210; MSA 14.15(5210) contains no express
mens rea requirement, we presume that the Legislature intended to require
that the prosecution prove that the defendant had a general intent to commit
the wrongful act, i.e., to engage in sexual penetration with another person
while failing to disclose that the defendant has AIDS of is HIV infected.
See Lardie, supra at 267. Thus, the statute does not require strict liability
because if a defendant admits being HIV infected and the other person consents
to the physical contact despite the risks associated with such contact,
there is no criminal liability. Finally, the statute requires that the culpable
mental state have a causal relationship to the harm that the statute seeks
to prevent, id., i.e., requiring disclosure of being HIV infected will reduce
the unwitting spread of AIDS and HIV-related diseases. We therefore find
that MCL 333.5210; MSA 14.15(5210) is not constitutionally infirm on the
basis that it lacks an explicit mens rea requirement.
|||Finally, defendant asserts that MCL 333.5210; MSA 14.15(5210) violates
her constitutional right of privacy and her right to be free from compelled
speech by making it a crime to fail to inform a sexual partner of having
AIDS or being HIV infected. On review de novo, we disagree. See Mahaffey,
supra at 334-335.
|||In Hobbins v Attorney General, 205 Mich App 194, 205-206; 518 NW2d 487
(1994), this Court discussed the "right of privacy" founded in
the Fourteenth Amendment's concept of personal liberty and restrictions
on state action:
|||"The Court [in Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147
(1973)], however, expressly stated that this "privacy right . . . cannot
be said to be absolute," and noted that it has consistently "refused
to recognize an unlimited right of this kind in the past." Id. at 154.
Essential to the analysis in the case at bar is the Supreme Court's recognition
and affirmation of the state's compelling interest in protecting life .
. . . Furthermore, "a State [has] an unqualified interest in the preservation
of human life." Cruzan v Director, Dep't of Health, 497 US 261, 282;
110 S Ct 2841; 111 L Ed 2d 224 (1990). The constitutionality of legislative
enactments to protect life is clearly established in our law."
|||"When individuals assert constitutional rights against state regulation,
whether encompassed by the "zones of privacy" recognized in Roe
or acknowledged as a liberty interest protected by the Due Process Clause
of the Fourteenth Amendment, a court must balance the individual interest
against the state's interest. It is, of course, necessary that the asserted
right be one that is accorded constitutional protection under our law. .
|||"Determination of the existence of "rights not readily identifiable
in the Constitution's text" sometimes . . . seems merely "the
imposition of the [Judges'] own choice of values." Attempting "to
identify the nature of the rights qualifying for heightened judicial protection,"
the Supreme Court has ruled "that this category includes those fundamental
liberties that are 'implicit in the concept of ordered liberty,' such that
'neither liberty nor Justice would exist if [they] were sacrificed.' [Alternatively,]
they are characterized as those liberties that are 'deeply rooted in this
Nation's history and tradition.'" . . ."
|||". . . The "guarantee of personal privacy" has been "exten[ded]
to activities relating to marriage, procreation, contraception, family relationships,
and child rearing and education." [Emphasis added.]" Accord Advisory
Opinion on Constitutionality of 1975 PA 227; 396 Mich 465, 481-482; 242
NW2d 3 (1976); Const 1963, art 1, § 17; Mahaffey, supra; see also Jensen
v Pontiac, 113 Mich App 341, 346; 317 NW2d 619 (1982).
|||We believe that defendant's ostensible right to withhold disclosure of
her HIV status from her sexual partners is not an absolute right when balanced
against the state's "unqualified interest" in preserving human
life. Hobbins, supra at 205, quoting Cruzan, supra at 282. Despite the guarantee
of personal privacy extended to procreation, contraception, family relationships,
child rearing, and child education, we disagree that defendant's asserted
right to privacy falls within any of these categories. Defendant has not
supported her mere assertions that her actions implicate procreation, contraception,
or family relationship issues, and we will not search for authority to support
this position. See, e.g., In re Toler, 193 Mich App 474, 477; 484 NW2d 672
(1992). Rather, defendant's actions merely involve one individual's decision
to have unfettered or unencumbered sexual relations with others. We will
not read these constitutional guarantees of personal privacy so broadly
as to render them meaningless. To the contrary, we defer to the state's
overriding, legitimate, and compelling interest in preserving the life of
its citizens, thereby permitting it to preclude defendant from remaining
silent and knowingly exposing others to an incurable disease.
|||In Gamberella, supra at 603-604, the Louisiana Court of Appeals rejected
a similar privacy claim where the defendant argued that the statute interfered
with his right as an HIV-infected person to engage in sexual activities.
The court recognized that the Louisiana Constitution, like the Michigan
Constitution, guarantees every individual has the right to be secure in
his person against "unreasonable searches, seizures, or invasions of
|||"The right of privacy is not absolute; it is qualified by other rights.
Furthermore, the right of privacy does not shield all private sexual acts
from state regulation. No one can seriously doubt that the state has a compelling
interest in discouraging the spread of the HIV virus. Forcing an infected
person to inform all of his sexual partners so the partner can make an informed
decision prior to engaging in sexual activity furthers the state's interest
in preventing the spread of the virus. . . . [M]erely because the statute
does not go as far as it could to discourage the spread of the virus does
not result in the current version's being viewed as an invasion of privacy.
Moreover, to the extent the statute criminalizes sexual conduct which might
be incapable of spreading the virus, considering the uncertainty of the
medical community concerning all aspects of this disease, the statute is
narrowly drawn to further the state's compelling interest. [Id. at 604 (citations
omitted, emphasis added).]"
|||Although we are not bound to follow the reasoning in Gamberella, we agree
with the Conclusion that the right of privacy does not shield defendant's
private sexual acts from state regulation. Michigan has an undeniable compelling
interest in discouraging the spread of HIV. *fn8
Requiring an infected person to so inform sexual partners so they can make
an informed decision before engaging in sexual penetration is narrowly tailored
to further this compelling state interest. Id.
|||Defendant's right to privacy argument has been defeated not only in the
context of criminal statutes relating to the transmission of AIDS but also
in cases where unwitting sexual partners contracted a venereal disease and
sued in tort for damages. In a tort action, Kathleen K v Robert B, 150 Cal
App 3d 992, 996; 198 Cal Rptr 273 (1984), the defendant argued that his
right of privacy would be violated if he were compelled to disclose that
he had genital herpes. In that case, Health and Safety Code 3198 made it
a misdemeanor to expose any person or to infect any person with any venereal
disease. Although the California Court of Appeals recognized that the government
may not without warrant intrude into private matters relating to marriage,
family, and sex, the court found that the right to privacy is not absolute
"and in some cases is subordinate to the state's fundamental right
to enact laws which promote public health, welfare and safety, even though
such laws may invade the offender's right of privacy." Kathleen K,
supra at 996.
|||Thus, the Kathleen K court recognized that the right of privacy did not
insulate a person from judicial inquiry into the person's sexual relations
where one sexual partner intentionally engaged in conduct that causes or
could cause serious physical injury to another. Id. The court therefore
concluded that the serious and incurable nature of the defendant's ailment,
coupled with the state's interest in preventing and controlling the spread
of contagious and dangerous diseases, outweighed the defendant's constitutional
right of privacy, and it rejected the argument that the right to privacy
insulated a defendant who either negligently or deliberately infects someone
with a venereal disease. Id. at 996-997. Accord Doe v Roe, 218 Cal App 3d
1538, 1546-1547; 267 Cal Rptr 564 (1990) (the duty to disclose to his sexual
partner the fact that the defendant had a sexually transmissible contagious
disease arises out of a strong public policy to prevent the spread of serious
and incurable diseases, and this duty, aimed at protecting the public health,
safety, and welfare, was sufficient to overcome the defendant's privacy
|||Other states have recognized similar tort causes of action and rejected
the defendants' assertions that their privacy interests are superior to
the risk of their spreading incurable "social" diseases. See Mussivand
v David, 45 Ohio St 3d 314, 319; 544 NE2d 265 (1989) (there is no duty to
disclose this private information to everyone); Berner v Caldwell, 543 So
2d 686, 688-689 (Ala, 1989) (Ala Code 22-11 21[c] made it a misdemeanor
to knowingly transmit or do any act likely to transmit sexually transmitted
diseases); Maharam v Maharam, 123 AD2d 165; 510 NYS2d 104 (1986) (NY Pub
Health Law 2307 makes it a misdemeanor if you have sex with another knowing
that you have a sexually transmissible disease); Long v Adams, 175 Ga App
538, 539-541; 333 SE2d 852 (1985); see also Russell, supra at 26 (finding
that Illinois' criminal transmission of HIV statute does not infringe on
any alleged right of intimate association where the victim did not know
that his sexual partner had AIDS).
|||In light of the foregoing, we find that despite the constitutional guarantees
of liberty that include privacy considerations, defendant's right to privacy
is not absolute, and the state's overwhelming need to protect its citizens
from an incurable, sexually transmissible disease is a compelling state
interest. Moreover, the requirement that infected individuals disclose their
status to their potential partners before engaging in sexual penetration
is narrowly defined so as to further that compelling interest. The Legislature
has properly balanced the privacy rights of HIV-and AIDS-infected persons
against the general public's interest and need for protection from a fatal
disease. Hobbins, supra at 205-206; Gamberella, supra at 603-604.
|||Most notably, the statute neither forbids HIV-infected persons from engaging
in sexual penetration nor requires general public disclosure of the person's
health status. To the contrary, MCL 333.5210; MSA 14.15(5210) simply acknowledges
that an individual who contemplates sexual penetration with an HIV-infected
person is entitled to make an informed decision regarding potential health
and safety concerns. Thus, while the statute intrudes somewhat on the privacy
of an HIV-infected individual, this intrusion is significantly outweighed
by the devastating result that could ensue from unwitting participation
in unprotected sexual penetration with the infected individual.
|||We therefore find that MCL 333.5210; MSA 14.15(5210) does not unconstitutionally
deprive defendant of her right to privacy regarding the fact that she was
HIV infected, and that any right to privacy involving her HIV infection
is subordinate to her sexual partner's right to either avoid sexual penetration
or to engage in sexual penetration only after being informed that defendant
was HIV infected.
|||With respect to defendant's allegations that the statute violates her
right against compelled speech, defendant is asserting a "negative
First Amendment right" or one of nonexpression. More specifically,
defendant argues that MCL 333.5210; MSA 14.15(5210) violates her First Amendment
rights because it compels her to disclose information about which she would
otherwise wish to remain silent. The United States Supreme Court has clearly
indicated that the state may sometimes curtail freedom of speech when necessary
to advance a significant and legitimate state interest. Members of City
Council of City of Los Angeles v Taxpayers for Vincent, 466 US 789, 804;
104 S Ct 2118; 80 L Ed 2d 772 (1984). While the Supreme Court's decisions
exemplify that under certain circumstances a constitutional right to be
free from compelled association or expression exists, the Court has yet
to completely articulate the extent of that right. Falk v State Bar of Michigan,
418 Mich 270, 287; 342 NW2d 504 (1983).
|||"However, it is clear that the Supreme Court does not consider the
strict scrutiny applied in other First Amendment cases to be appropriate
in cases involving negative First Amendment rights." Id.
|||"[I]n resolving [such] claims the Court has balanced the severity
of the injury to the individual interest against the magnitude of the government
interest sought to be served by the requirement or regulation. In this manner,
the Court has decided whether the complained-of government action constitutes
an impermissible First Amendment infringement."
|||""Whenever a government requirement is challenged on the basis
that it compels expression the initial inquiry must be whether the requirement
does in fact infringe upon negative First Amendment interests and if so
how seriously. The judicial task does not end here, however. It is also
necessary to consider what government interests may be served by the requirement
in question, and under what circumstances advancement of a government interest
might outweigh the concomitant infringement of individual negative First
Amendment interests." [Id. at 288, quoting Gaebler, First Amendment
Protection Against Government Compelled Expression and Association, 23 BC
L R 995, 1014 (1982).]"
|||When applying these tests to the instant negative First Amendment interest,
MCL 333.5210; MSA 14.15(5210) obviously requires persons to expressly inform
their sexual partners that they are HIV infected. Thus, the statute indeed
infringes defendant's right against compelled expression.
|||Consequently, this Court must next determine the severity of the infringement
of defendant's negative First Amendment interest, looking to "the intimacy
of the connection between [defendant] and the compelled expression."
Falk, supra at 289. Despite an individual's interest in avoiding disclosure
of personal matters, Whalen v Roe, 429 US 589, 598 600; 97 S Ct 869; 51
L Ed 2d 64 (1977), "a governmental intrusion into medical matters has
been permitted after a finding that the societal interest in disclosure
outweighs the individual's privacy interest." Swickard v Wayne Co Medical
Examiner, 184 Mich App 662, 667; 459 NW2d 92 (1990), aff'd 438 Mich 536;
475 NW2d 304 (1991).
|||Here, requiring defendant to disclose that she has a sexually communicable
disease involves a very personal matter and implicates issues regarding
her sexual life; thus, the expression directly relates to defendant. "[T]he
more directly the compelled expression relates to the individual, the more
important must be the government interest advanced to justify it."
Falk, supra at 289. "'The question in each case must be whether the
compelled participation in expression infringes unduly upon individual interests.'"
Id. at 292, quoting Gaebler, supra, at 1016.
|||From the plain language of MCL 333.5210; MSA 14.15(5210), it is evident
that the Legislature enacted the statute to stop the spread of AIDS and
HIV by punishing the carriers of these illnesses who, with their silence,
spread an incurable disease. Considering the ease of transmitting AIDS and
HIV through sexual penetration and the absence of any "cure,"
the state's interest in protecting the public health, safety, and general
welfare of its citizenry becomes extremely significant. Although the statute
may significantly infringe defendant's individual interests in remaining
silent, the state's interest to compel her to disclose that she is HIV infected
before engaging in sexual penetration is undeniably overwhelming. Falk,
supra at 292.
|||We reiterate that MCL 333.5210; MSA 14.15(5210) does not prohibit defendant
from engaging in sexual penetration but only requires her to inform her
potential sexual partners, individually and privately, that she has this
communicable disease. *fn9
The statute does not require or imply that she need publicize the fact that
she is HIV positive. It merely compels her to privately divulge this health
status to those with whom she intends to engage in sexual penetration. Hence,
we do not agree that the statute requires public disclosure; rather, it
requires private disclosure only to those who are immediately in danger
of exposure to the virus because they are contemplating the opportunity
to engage in sexual penetration with defendant. See Falk, supra at 292.
|||Accordingly, in weighing the infringement of defendant's negative First
Amendment right against compelled speech by requiring private disclosure
that she is HIV infected against the magnitude of the state's interests
in controlling the spread of this currently incurable disease, the state's
interests outweigh defendant's right against compelled speech.
|||We therefore affirm the constitutionality of MCL 333.5210; MSA 14.15(5210)
and defendant's convictions pursuant to the statute.
|||Jane E. Markey, Michael J. Kelly, & Michael J. Talbot.
is defined as "a syndrome that involves a compromised immune system
that renders the [person] highly susceptible to" communicable diseases.
Sanchez v. Lagoudakis (After Remand), 458 Mich 704, 709; 581 NW2d 257 (1998).
Also, AIDS occurs "when an individual is seropositive for HIV and has
one of certain associated illnesses, and . . . when an individual with HIV
contracts any one of a multitude of possible opportunistic infections. Id.
at n 4."
criminal statute, Ill Comp Stat, Ann ch 720, 5/12 16.2, reads as follows:
Criminal Transmission of HIV. (a) A person commits criminal transmission
of HIV when he or she, knowing that he or she is infected with HIV: (1)
engages in intimate contact with another; (2) transfers, donates, or provides
his or her blood, tissue, semen, organs, or other potentially infectious
body fluids for transfusion, transplantation, insemination, or other administration
to another; or (3) dispenses, delivers, exchanges, sells, or in any other
way transfers to another any nonsterile intravenous or intramuscular drug
paraphernalia. (b) For purposes of this Section: "HIV" means the
human immunodeficiency virus or any other identified causative agent of
acquired immunodeficiency syndrome. "Intimate contact with another"
means the exposure of the body of one person to a bodily fluid of another
person in a manner that could result in the transmission of HIV. "Intravenous
or intramuscular drug paraphernalia" means any equipment, product,
or material of any kind which is peculiar to and marketed for use in injecting
a substance into the human body. (c) Nothing in this Section shall be construed
to require that an infection with HIV has occurred in order for a person
to have committed criminal transmission of HIV. (d) It shall be an affirmative
defense that the person exposed knew that the infected person was infected
with HIV, knew that the action could result in infection with HIV, and consented
to the action with that knowledge. (e) A person who commits criminal transmission
of HIV commits a Class 2 felony.
statute criminalizing the intentional exposure of others to the AIDS virus,
La Rev Stat 14:43.5, states as follows in pertinent part: A. No person shall
intentionally expose another to any acquired immunodeficiency syndrome (AIDS)
virus through sexual contact without the knowing and lawful consent of the
victim. B. No person shall intentionally expose another to any acquired
immunodeficiency syndrome (AIDS) virus through any means or contact without
the knowing and lawful consent of the victim. * * * D. For purposes of this
Section, the following words have the following meanings: (1) "Means
or contact" is defined as spitting, biting, stabbing with an AIDS contaminated
object, or throwing of blood or other bodily substances. . . . E. (1) Whoever
commits the crime of intentional exposure to AIDS virus shall be fined not
more than five thousand dollars, imprisoned with or without hard labor for
not more than ten years, or both. . . .
|||*fn4 See Md
Health Gen Code Ann 18 601.1; Tenn Code Ann 39 13 109; Ark Code Ann 5 14
123; SC Code 44 29 145; Ill Comp Stat Ann, ch 720, 5/12 16.2; Ga Code Ann
16 5 60; Mo Rev Stat 191.677; Mont Code Ann 50 18 112.
|||*fn5 In Lardie,
supra, our Supreme Court specifically concluded, therefore, that (1) the
Legislature reasonably may have decided that voluntarily driving while intoxicated
was grossly negligent because it "shows a culpable indifference to
the safety of others," id. at 252, (2) the presumption of gross negligence
is only reasonable if the defendant voluntarily decided to drive and drove
knowing he consumed intoxicating liquor or a controlled substance, thereby
knowing he could be intoxicated, id. at 251, (3) the Legislature intended
to deter drunk driving and intended that the prosecution prove that the
driver voluntarily or willingly decided to commit this culpable act, id.
at 252 253, (4) the crime did not fit the definition of a public welfare
strict liability offense, which places the burden of protecting society
on a person "'otherwise innocent but standing in responsible relation
to public danger,'" because (a) the driver was not otherwise innocent
and (b) public welfare crimes generally have "relatively small"
penalties and do not do "grave damage to an offender's reputation,
id. at 254 255 and (5) the statute punishes a person's gravely irresponsible
act of operating a vehicle while intoxicated and causes another's death,
which conduct is malum in se, id. at 255. Accordingly, the Court found that
where the prosecutor must prove a mens rea by showing that the defendant
purposefully drove while intoxicated (i.e., he had the general intent to
perform the wrongful act), the statute did not impose strict liability.
Id. at 256.
opponents argue that these criminal statutes will dissuade individuals from
being tested for AIDS and that they will increase the amount of discrimination
that HIV infected individuals already face, we are unpersuaded that these
arguments favor nondisclosure. The statute does not prohibit individuals
diagnosed with AIDS or infected with HIV from having private physical relations
within a marriage or relationship as long as both parties understand and
accept the risks. There is no discrimination or criminalization in that
context. Where, however, persons with AIDS and HIV become the agents of
their own incurable epidemics, we believe that the Legislature has the ability
to protect the public health, welfare, and safety through legislation such
as MCL 333.5210; MSA 14.15(5210). Thus, we reject defendant's attempts to
broaden the scope of this case beyond one woman's desire to have unprotected
sex with unwitting participants and, in the process, likely infecting them
to the House Legislative Analysis, HB 5026, January 25, 1989, p 4, which
eventually became MCL 333.5210; MSA 14.15(5210), proponents noted that unlike
other hazardous communicable diseases where infected people can be quarantined
for short periods while they are cured, this is not true with the HIV infection,
i.e., once infected, one is infected, and presumably infected for life.
There is no vaccine, treatment, or cure. Moreover, even a "few recalcitrant
HIV carriers" "can wreak enormous havoc upon society both financially
and in terms of sheer physical and emotional suffering on the part of their
victims." Further, the bill fairly balanced the legitimate needs of
certain people to know the identities of HIV infected people against those
people's rights to privacy and provided penalties for unlawful disclosure
of confidential AIDS related information.
|||*fn8 In Sanchez,
supra at 709, our Supreme Court recognized the "need to avoid significant
health risks to the public" from the spread of AIDS.
argues that if she is forced to disclose that she is HIV infected, no one
will become intimate with her or will want to be her friend. This argument
is constitutionally unpersuasive, statistically unproved, and, at the very
least, exemplifies why full disclosure is necessary. Only those willing
to risk HIV transmission, or who know how to take precautions against the
virus, will accept defendant's offer of sexual contact. Should her desire
to have a unlimited bank of sexual partners overcome the state's interest
in ensuring that her partners are fully informed of the risks involved?
We believe that the answer to this question must be emphatic: No.
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