Published August, 1996
Smallwood v. State, 680 A.2d 512 (Md. 1996)
In a case with horrific facts, the Maryland Court of Appeals, the state's highest court, reversed an HIV-positive rapist's attempted murder convictions, concluding that his HIV-positive status alone was insufficient to infer an intent to kill. Dwight Smallwood was charged with, and pled guilty to, attempted murder for raping three women at gunpoint. The prosecution argued that because Smallwood was HIV-positive, knew he was HIV-positive, and had received counseling about transmission risk and the need to practice safe sex, forcing women to have sex with him indicated that he intended to cause their death by infecting them with HIV.
Smallwood was sentenced to concurrent sentences of life imprisonment for attempted rape, twenty years imprisonment for robbery with a deadly weapon, thirty years imprisonment for assault with intent to murder, and five years imprisonment for reckless endangerment. The circuit court also imposed a concurrent thirty-year sentence for each of the three counts of attempted second-degree murder.
Smallwood asked the state's Court of Appeals review his convictions, arguing that the fact that he engaged in unprotected sexual intercourse, even though he knew that he carried HIV, is insufficient to infer an intent to kill. The Court of Appeals agreed to review the case to consider whether the trial court could properly conclude that Smallwood possessed the requisite intent to support his convictions of attempted second-degree murder and assault with intent to murder.
The appeals court found that intent could not be inferred in this case because the prosecution could not prove that "the victim's death would have been a natural and probable result of the defendant's conduct." According to the court, although the victims' developing AIDS and eventually dying could be a result of the defendant's actions, it is not probable enough to infer an intent to kill to the extent that firing a gun at someone's head would be, for example. The court also distinguished the facts in this case from the facts in other cases in which an intent to kill by HIV transmission was upheld. Accordingly, the court reversed the conviction on the attempted murder counts.
This decision is noteworthy, coming as it does from a state's highest court, in its refusal to treat HIV as a "dangerous weapon," or to treat knowledge of one's HIV infection, even when engaging in sexual assault, as evidence of intent to infect another or otherwise cause serious harm.
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