Court: Not disclosing HIV before sex is a misdemeanor

In this photo taken June 27, 2012, Katherine Tapp, 26 of New York City uses an oral test for HIV, inside the HIV Testing Room at the Penn Branch of the District of Columbia Department of Motor Vehicles, in southeast Washington.

ALBANY, N.Y. – An HIV-positive man who told a partner that they could safely have unprotected sex should face a misdemeanor reckless endangerment charge, not a felony, New York's highest court ruled Thursday.

The Court of Appeals said Terrance Williams didn't expose his partner "out of any malevolent desire" to give him the virus that causes AIDS, though he lied about having the infection and his partner did get sick. The court said the Syracuse man didn't show "depraved indifference," which is necessary to support the felony charge.

The judges declined to decide whether HIV infection no longer "creates a grave and unjustifiable risk of death" because of advances in medical treatment. Two lower courts had reached that conclusion while knocking down the felony indictment to the lesser charge.

The felony could have sent Williams to prison for seven years. He still faces the misdemeanor and a possible year in jail if convicted.

"Without a doubt, defendant's conduct was reckless, selfish and reprehensible," the court majority said in a memorandum. "Under our case law, though, this is not enough to make out a prima facie case of depraved indifference."

Ruling in the majority were Chief Judge Jonathan Lippman and Judges Susan Read, Jenny Rivera and Sheila Abdus-Salaam.

In a dissent, Judge Eugene Pigott Jr. said he'd reinstate the felony charge, because Williams' repeated lies showed "utter indifference" for the victim's fate, though he had later expressed remorse.

Attorney Kristen McDermott, who argued Williams' appeal, said New York has never passed a specific law about HIV transmission, unlike some other states. Onondaga County prosecutors are trying to make it a criminal act under the reckless endangerment statute, she said.

The partner's risk of contracting HIV in the four or five times they had sex were low, and his prospects of that and also dying from AIDS were "extraordinarily low," McDermott said. There are now 20 different medications that effectively put the virus to sleep in people's bodies, she said.

"It's still a potentially deadly disease," Assistant District Attorney James Maxwell said, adding that he agreed with Pigott. "It's not always a death sentence, but it can be."