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Archive for Monday, August 21, 2006

HIV case first test of state statute

Some say law should be tougher, more specific

August 21, 2006

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More than 20 years after AIDS became part of the national consciousness, a Lawrence case is the first in Kansas to test a law meant to punish people who have sex without telling their partner they're HIV-positive.

But some say the law Kansas isn't adequate, for reasons ranging from its language to the severity of punishment it sets out.

Even though it's commonly referred to as Kansas' "HIV crime" statute, the law makes no specific reference to HIV. Instead, it states that anyone with a "life-threatening communicable disease" can't have sex, donate organs or share a needle with the intent of exposing someone else to the disease.

"I definitely think that HIV needs to be included in that so it is clear," said Amy Decker, a Wichita attorney who researched the law in the late 1990s while she was a student at Kansas University's law school. "They can say 'communicable disease' or whatever, but I feel they need to say 'including, but not limited to, HIV.'"

Decker also finds it problematic that the crime is such a low-level felony. Someone with no criminal record - such as 30-year-old Robert W. Richardson II, the HIV-positive Lawrence man charged with exposing at least five women in the past year - would have to be convicted in three separate cases to face any prison time.

A law review article Decker published in 1998 called for the penalties be stiffened so that exposing someone to HIV would be the highest-level felony possible - with a minimum sentence of more than 12 years on first offense - if the victim actually contracted HIV. If the person didn't contract HIV, the punishment would be slightly less.

As the law now stands, there's no difference in punishment for cases where the victim contracts HIV versus cases where he or she does not. In Richardson's case, none of the women he's charged with exposing in Douglas County has tested HIV-positive so far.

Kansas' law was passed in 1992, and the crime was a misdemeanor until it was upped to a felony in 1999.

Sen. John Vratil, R-Leawood, chairman of the Senate Judiciary Committee, said that at first blush, the language of the law sounded adequate to him.

"It doesn't appear to me to be necessary to spell it out" to include HIV, he said.

Richardson was scheduled to begin trial last week on the first of four cases, but Dist. Atty. Charles Branson's office dismissed the case against him the day before trial.

Branson said his office needed more time to respond to a constitutional challenge filed by Richardson's attorney, Thomas Johnson, who argued the language of Kansas' law makes it vague and overly broad.

For instance, Johnson pointed out that the law doesn't define "exposure." Couldn't sex with a condom, he asks, even be considered "exposure" because of the remote possibility the disease could be transmitted?

He also disputes that HIV is a "life-threatening disease," given that technically people don't die from HIV, but from AIDS or another disease that sets in when the body's immune system is weakened.

Branson has said his office will dismiss the remaining cases against Richardson and then refile them as one case, and that he eventually will stand trial. As of Sunday, Richardson still was being held in the Douglas County Jail.

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