State v. Hogg, M2012-00303-CCA-R3CD, 2013 WL 1619392 (Tenn. Crim. App. 2013)

Court and Agency Decisions and Orders (including case law)

In this appeal, the Court of Criminal Appeals of Tennessee at Nashville upheld the conviction and sentence of an HIV positive man found guilty of 11 counts of especially aggravated sexual exploitation of a minor, nine counts of criminal exposure to HIV, nine counts of aggravated statutory rape, and one count of sexual battery, all resulting from a sexual encounter with a 14-year-old boy who was unaware of the defendant's HIV status. The total effective sentence was 174 years in prison. The defendant appealed his convictions on insufficiency of evidence grounds, claiming that the State failed to prove he placed the victim at "significant risk of HIV transmission" as required by the statute since he did not ejaculate during the sexual contact. 

The court cited State v. Bonds, which found that the "exposure" required by the statute need only amount to evidence that a defendant "subjected the victim to risk of contact with bodily fluids in a manner that would present a significant risk of HIV transmission." Consent, disclosure, or condom use were not available as defenses. Under this extremely broad standard that essentially criminalizes any sexual act by an HIV positive person, the appeals court determined that the defendant's admission that he had had sexual intercourse with the underage boy, compounded by flawed expert testimony that manual stimulation of an uninfected person's penis by an HIV positive person carries a risk of HIV transmission, were sufficient to uphold his convictions for criminal exposure to HIV.
The defendant also challenged his sentence, claiming that the acts in question constituted a single act since they took place during one period of time. The court disagreed and found that the 11 video files found on the defendant's computer documenting the encounter and the statutory guidelines for especially aggravated sexual exploitation justified charges of up to 11 counts of each offense. The consecutive sentencing, essentially amounting to life in prison, was found not to be excessive in part because of the "gruesome" nature of the crime. Although the court's ruling is applicable only within Tennessee, the overly broad criminal exposure to HIV statute and the imposition of an extremely long prison sentence for one hour-long sexual act are important to consider alongside other states with similar statutes.
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