December 19, 2011

December 19, 2011
HIV-Positive Man Guilty of Passing Virus During Sex

Welcome to another day in my life. Today is Monday and I hope you had a safe and great weekend. It was another busy weekend for Dab the AIDS Bear and me.

A Hennepin County jury believed that Daniel James Rick told his partner he was HIV positive before they had sex following a night out in May 2009.

They still found the 30-year-old Minneapolis man guilty of a felony in an unusual case that could broadly affect the prosecution of similar HIV transmission cases.

It took the jury about two hours last Friday to convict Rick of attempted first-degree assault after a weeklong trial.

Attorney Landon Ascheman vowed to appeal the verdict against his client, saying that prosecutors used a vague interpretation of a 16-year-old state law to convict Rick, who faces prison time and who is charged with two similar offenses for allegedly infecting two other men without sharing his HIV status.

"Because he didn't use any protection, it didn't matter if he told or not," Ascheman said the jury determined. "Reading the statute exactly as it is, they were told they essentially had to convict him."

According to statute 609.2241, a person commits a crime when transferring a communicable disease through "sexual penetration with another person without having first informed the other person" of their positive status, or by the "transfer of blood, sperm, organs or tissue, except as deemed necessary for medical research or if disclosed on donor screening forms."

The jury found Rick not guilty under the first section of the statute, but convicted him on the second, an interpretation Ascheman criticized as overly broad and intended to apply to medical procedures rather than sexual intercourse.

Hennepin County Attorney Mike Freeman, who called Rick's case "extraordinary," denied Ascheman's assertions.

"You look at what the Legislature is trying to do, they set it forth in clear language, and does what he did fit in with the language of the statute?" Freeman said. "He knowingly transferred these fluids through unprotected sex knowing he had HIV, and knowing HIV can be deadly, that is not overly broad."

Freeman said communicable diseases are defined as those causing serious illness, disability or death. The law does not apply to curable or treatable sexually transmitted diseases such as syphilis or gonorrhea. He disagreed with the jury's finding that Rick disclosed his status to the victim, but said he was grateful that they still found Rick guilty. He said the case, believed to be the first of its kind using the statute, does not mean two partners automatically would be charged for having unprotected sex when one is HIV-positive. Doing so "would be abusing our discretion," he said.

The victim declined to comment.

According to charges, Rick and the victim, who worked at the Saloon Bar, recognized Rick there in May 2009 from an online chat and struck up a conversation, according to the criminal complaint.

After work, the man went to Rick's home, where they had sex without using condoms, the complaint said. According to prosecutors, Rick did not say he was HIV-positive, but Ascheman told jurors that his client had disclosed he was HIV positive before the men had sex. The man later tested HIV-positive. According to the complaint, he had tested negative before having sex with Rick. According to the charges, Rick tested positive for HIV in January 2006 and received counseling about safe-sex practices.

Faces similar charges

Rick faces three more counts of attempted first-degree assault and third-degree criminal sexual conduct in earlier cases that caused his victim in last week's trial to come forward.

He was charged in February 2010 with raping a drunken man after a night out in downtown Minneapolis, transferring the virus to him. The publicity from that case led two men to come forward the next month who accused Rick of not disclosing having the virus when he had sex with them after the partners met him over a website. One of the men contracted the virus, while the other did not.

A trial date will be set for those cases when Rick is sentenced Nov. 28. Rick also pleaded guilty to felony third-degree criminal sexual conduct for having sex with a 15-year-old in Sherburne County. He received two months' jail time and probation.

This is just another reason why those of us who have HIV should always use protection!

Hope you have a great week!

Until we meet again; here's wishing you health, hope, happiness and just enough.

big bear hug,

Daddy Dab