Published January, 2011

Boyer v. Belleque, 659 F.3d 957 (9th Cir. 2011)

The U.S. Court of Appeals for the Ninth Circuit affirmed the denial by the U.S. District Court in Oregon of a petition for habeas corpus and found that the state court's determination that there was sufficient evidence to convict Andrew Lee Boyer of two counts of attempted aggravated murder, for having unprotected anal sex with two boys when Boyer knew he was infected with HIV, was not objectively unreasonable.

The question on appeal was not whether Boyer was guilty of the more than 20 counts of sexual offenses including sexual abuse, sodomy, and attempted sodomy, for the sexual abuse of four victims (who could not consent because of either age or mental capacity). The appeal was challenging the additional conviction of attempted aggravated murder for having had unprotected anal sex with two of his victims. Boyer argued that there was no proof presented that he actually intended to kill his victims by exposing them to HIV, while the prosecution analogized Boyer's actions to "placing a time bomb in a city street and not knowing if someone would be there when it went off."

This motion for habeas corpus in the U.S. District Court argued that the evidence was legally insufficient to sustain the conviction, in violation of Due Process, and when the motion was denied, Boyer appealed to the 9th Circuit. The decision was based on how Oregon law handles the issue of intent, for which the 9th Circuit panel looked to State v. Hinkhouse, the defendant knew he was HIV positive and engaged in many acts of unprotected sex over a long period of time, for which the Oregon court held that "a rational fact finder could conclude beyond a reasonable doubt that defendant did not act impulsively merely to satisfy his sexual desires, but instead acted deliberately to cause his victims serious bodily injury and death." Using Hinkhouse as the precedent, the 9th Circuit held here that it was not unreasonable to conclude that "a rational jury could find beyond a reasonable doubt that Boyer intended to kill his victims based on proof that he anally penetrated several victims with knowledge that he could infect them with AIDS." While the decision stated that the panel's decision was made with "some reluctance because of the thin nature of the evidence of intent," it concluded "state courts have a broad general entitlement to deference to define their own state criminal law." It is unfortunate that the Court did not take this opportunity to truly reexamine the need for actual evidence of an intent to harm, rather than inferring it from the perceived toxicity of HIV.