Published June, 2008

State v. Mubita, 188 P.3d 867 (Idaho 2008)

Mubita was convicted of eleven counts of transferring body fluids containing HIV under Idaho statute Idaho Code Ann. §39-608. Mubita received a sentence of four months to four years for each of the eleven counts, carrying a maximum possibility of forty-four years imprisonment.

Some of the charges brought against Mubita were based on his performing oral sex. Mubita argued that charges brought against him under Idaho Code Ann. §39-608 could not extend to oral sex because it is not possible to transmit HIV through saliva. Quoting the Idaho legislature, Mubita asserted that the purpose of Idaho Code Ann.  §39-608 was to punish and deter those who "knowingly expose another person to AIDS" and that his conduct fell outside the reach of the statute because HIV cannot be transmitted through saliva.

The Supreme Court of Idaho rejected Mubita's argument and held that his actions were specifically prohibited under the plain language of the law. The court reasoned that the Idaho statute prohibited an HIV-positive person from transferring or attempting to transfer body fluids, including saliva, to another person, through "genital-genital" or "oral-genital" contact. The court refused to take into consideration evidence submitted by Mubita on the scientific unlikelihood of HIV transmission through male-to-female oral sex.

The Mubita decision demonstrates the inconsistency between established scientific facts and the application of HIV criminal exposure statutes such as Idaho's.