Syracuse, NY - A Syracuse man accused of infecting a consensual sexual partner with HIV cannot be prosecuted on a felony reckless endangerment charge, a local judge ruled today.
In a 12-page decision, state Supreme Court Justice John Brunetti said the prosecution did not have sufficient evidence that Terrance Williams' conduct created a grave and unjustifiable risk of death to his sexual partner.
To pursue such a prosecution, the District Attorney's Office would need to present expert testimony as to the prognosis for a person who contracted HIV now, Brunetti concluded.
Williams, 22, was charged in September with first-degree reckless endangerment based on allegations that having been diagnosed as HIV positive in December 2009, he engaged in sex with the victim from July to November 2010.
A grand jury that reviewed the allegations returned an indictment charging Williams with the felony reckless endangerment charge along with a misdemeanor count of third-degree assault.
Defense lawyer August Nordone challenged the prosecution case by questioning the risk factor given the advances in medical treatment of HIV, the virus that causes AIDS.
Brunetti concluded that without some expert testimony, there was no evidence to support the allegation that Williams posed a grave risk of death to the victim. The judge also made the same finding with regard to whether there was sufficient evidence to support a lesser second-degree reckless endangerment finding that Williams' conduct created a substantial risk of serious physical injury to the victim.
The victim has been diagnosed as HIV positive. But the judge cited the victim's own grand jury testimony in making his ruling against the reckless endangerment prosecution.
"Mr. Doe related what he has been told by doctors concerning life expectancy: 'Basically I can live basically like a normal life. The medication they have me on are getting better and better. A long time ago, I could only live like another 15 years, like, but the medication now I could be expected to live another thirty to ninety years, even better,'" the judge wrote.
While people may generally know about HIV, the average lay person would not necessarily be able to understand whether Williams' conduct created a grave risk of death or serious physical injury to the victim without the additional testimony of an expert witness, Brunetti noted.
The judge let stand the misdemeanor third-degree assault charge, ruling expert testimony was not necessary to show the average person that HIV could create a substantial risk of a reduced immune system and consequent impairment of a person's physical condition.
Brunetti did not address the issue of whether the prosecution showed sufficient proof that Williams was aware of any risk posed by his conduct. That "troublesome" issue will have to be addressed if the prosecution seeks to present the case against Williams to a new grand jury with expert testimony, the judge added.
Brunetti noted other states have addressed the issues presented in the Williams case by passing legislation criminalizing the specific conduct of a person with HIV having sex with another and exposing that other person to HIV.
In New York, legislation was proposed in January that would change the risk from one of serious injury or death to "the more easily proven risk of transmission" of HIV, the judge noted.
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