Published May, 2006
State v. Whitfield, 134 P. 3d 1203 (Wash. Ct. App. 2006)
Whitfield was convicted of 17 counts of first degree assault with sexual motivation, 2 counts of witness tampering, and 3 counts of violating a no-contact order in connection with his failing to disclose that he was HIV-positive to his sexual partners and attempting to persuade a sexual partner to testify in his favor. Whitfield was sentenced to 178 years and 1 month in prison.
On this appeal, Whitfield argued that Wash. Rev. Code § 9A.36.011(1)(b), the provision of Washington's first degree assault statute that criminalizes the intentional exposure to HIV, violates both the United States Constitution and the Washington constitution.
First, Whitfield argued that § 9A.36.011(1)(b) violates the Equal Protection Clause of the United States Constitution. Section 9A.36.011(1)(b) states that, "[a] person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm. . . (b) Administers, exposes, or transmits to or causes to be taken by another, poison, the human immunodeficiency virus as defined in chapter 70.24 RCW, or any other destructive or noxious substance." Whitfield argued that § 9A.36.011(1)(b) authorizes the prosecution of HIV-positive persons but not persons who expose others to other harmful sexually transmitted diseases and subjects HIV-positive persons to harsher penalties than individuals who are prosecuted for transmitting other sexually transmitted diseases.
The court rejected this argument. The court concluded that rather than singling out HIV-positive people, the statute allows for the prosecution of anyone, whether or not they are HIV-positive, who exposes another to HIV. The court explained that such exposure could occur in a number of ways including in the course of sexual activity with an HIV-positive person or when a non-HIV-positive person finds another way to expose another person to the virus. By prohibiting exposure to HIV, the court held, the statute prohibited conduct. Because the statute did not create a suspect class, the court held that unless the statute "rest[ed] on grounds wholly irrelevant to the achievement of legitimate state objectives," the statute would be found constitutional. The court held that statute's prohibition of the exposure to HIV was related to the state objective of stopping the transmission of a deadly disease and went on to uphold the statute.
Whitfield also argued that § 9A.36.011(1)(b) violates the privileges and immunities clause of the Washington constitution to the extent that the statute grants actors who transmit sexually transmitted diseases other than HIV immunity from prosecution under the statute, while singling out HIV-positive people by making them eligible for prosecution. The court of appeals held that transmitters of sexually transmitted diseases other than HIV were not granted a special privilege or immunity by not being identified for prosecution under § 9A.36.011(1)(b). The court noted that although transmitters of other sexually transmitted diseases were not eligible for prosecution under § 9A.36.011(1)(b), they could be prosecuted under other state laws.
The court went on to state that to the extent that exposure to HIV was more severely punished under Washington law than exposure to other sexually transmitted diseases, the legislature has the ability to punish exposure crimes differently.
Whitfield went on to argue that the state failed to present sufficient evidence that he intended to inflict bodily harm on the complainants. The court disagreed with Whitfield and held that the State submitted evidence that 1) Whitfield knew of his HIV-positive status, 2) knew how HIV could be transmitted, 3) concealed his HIV status from his sexual partners while insisting on engaging in unprotected sexual intercourse with them, and 4) expressed that he would spread HIV if he were positive; and that this evidcence was sufficient to prove Whitfield's intent to inflict bodily harm.
Finally, Whitfield argued that by agreeing to engage in sexual intercourse with him, a person who engaged in sexually promiscuous activity and who habitually used drugs, the complainants consented to being exposed to HIV. Whitfield asserted that the risk of HIV exposure was "an eminently foreseeable and an inherent part of engaging in unprotected sex." The court of appeals again disagreed with Whitfield, holding that it was impossible for the complainants to have consented to being exposed to HIV because they were not aware that Whitfield was HIV-positive and because it was not foreseeable that Whitfield would conceal his HIV status from his sexual partners. The court also pointed to evidence that at times Whitfield denied being HIV-positive when asked by his partners about his HIV status.
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