Published June, 2009

State v. Richardson, 209 P.3d 696 (Kan. 2009)

This summary was excerpted from the excellent description of the case provided by Art Leonard on Leonard Link. For the full case description and analysis, click here.

The Kansas Supreme Court unanimously reversed the conviction of Robert W. Richardson, II, who is living with HIV infection, for "exposing" two women to a "life-threatening disease," finding that the state had failed to present evidence that Richardson, who admitted having sex with both women, had actually intended to expose them to HIV infection.

Richardson was charged in May and June 2006 with two counts of violating a Kansas statute that provides, "It is unlawful for an individual who knows oneself to be infected with a life threatening communicable diseases knowingly to engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life threatening communicable disease." Richardson argued that the statute was too vague, failing to define what "expose" means, and also failing to explain the meaning of "life threatening disease." The District Judge rejected these arguments, and accepted the state's contention that based on the stipulated facts Richardson had violated the statute by engaging in sex with the women while knowing he was infected. Richardson had argued that it was not enough for the state to show that he had engaged in sexual intercourse while knowing he was HIV-positive, but rather that the state had to show that he had the specific intention to expose the women to being infected with HIV.

On appeal, the Supreme Court rejected the state's interpretation of the statute, agreeing with Richardson that the statute requires the state to show that a defendant had a specific intent to expose his sexual partners to the disease, not just a generalized intent to have sex while knowing he was HIV-positive. In effect, the state argued, since there is always some risk of HIV transmission if an infected person has sex with somebody else (for example, condoms can break), the statute should be construed to require HIV-positive people to be celibate. Or, as Justice Johnson summarized the state's position, "the State suggests that the specific intent to expose another to HIV is inherently included in the defendant's general intent to engage in sexual intercourse. Under the State's interpretation, a person infected with HIV must be totally abstinent or risk being prosecuted for a felony each and every time he or she engages in sexual intercourse or sodomy, regardless of whether the act is between two consenting (perhaps married) adults with full knowledge of the virus and utilizing prophylactic measures. We disagree." Johnson insisted that the state had to prove that Richardson had the "specific intent to expose them to HIV."

The supreme court agreed with the District Judge that the statute was not unconstitutionally vague, finding that people of reasonable intelligence could interpret the terms "expose" and "life threatening disease" without further explanation from the legislature. But, interestingly, on its own motion the court suggested that if the state's interpretation of the statute was correct, it would raise a federal constitutional problem under Lawrence v. Texas (the 2003 U.S. Supreme Court decision striking down the Texas sodomy law), because "a person's decision to engage in private, consensual sexual conduct is protected by the United States Constitution," and the state would have the court construe the statute to make all sexual activity by HIV-positive people a crime, regardless of the degree of risk they would present to their sexual partner.