People v. Dempsey, 610 N.E.2d 208 (Ill. App. 5 Dist. 1993)

Court and Agency Decisions and Orders (including case law)

Dempsey, 34-years-old, was convicted of aggravated criminal assault and criminal exposure to bodily fluids that could transmit HIV after he forced his 9-year-old younger brother to perform oral sex on him. Dempsey received a seven year prison sentence for criminal HIV exposure and a thirty-three year sentence for aggravated criminal sexual assault.

On appeal, Dempsey argued, among other things, that the Illinois' statute prohibiting the exposure of HIV was unconstitutionally vague. Illinois' criminal HIV statute notes that an HIV-positive person may face criminal penalties if she/he "exposes [a person] to a bodily fluid [...] in a manner that could result in the transmission of HIV." 720 ILL. COMP. STAT. § 5/12-16.2 (WEST 2010). Dempsey argued that the statute was flawed because it did not define the term "bodily fluid" and exposing other persons to bodily fluids in a manner that "could" result in the transmission of HIV encompassed such a broad range of activities that it failed to clearly indicate what behavior was prohibited.

The Appellate Court of Illinois's Fifth District rejected Dempsey's argument because he lacked standing to raise a challenge as the statute was not vague as applied to his actions. The court reasoned that where a party's actions are clearly prohibited by a statute, unless First Amendment concerns are involved, a party does not have the right to question the constitutionality of that statute as applied to other acts and actors. Because Dempsey allegedly engaged in oral sex and ejaculated, an act known to transmit HIV via semen, his conduct fell squarely within the statute.

The court upheld the charges brought against Dempsey but overturned the length of Dempsey's sentence and ordered a different sentencing judge on remand, finding that the original sentencing judge had allowed his unfounded fear of HIV to influence the sentencing decision. The original sentencing judge compared those living with HIV to rabid dogs, lepers, and scarlet fever victims who necessitated quarantine. He further suggested that the defendant may have been exposing others, including an ex-girlfriend, to HIV though there was never any evidence to suggest this. The Appellate Court found that the sentencing judge "was so prejudiced by fear of the disease that he let improper factors influence him and [failed to make] a reasoned and dispassionate determination as to the appropriate sentence."

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