Provides that a person is guilty of assault in 1st degree when such person recklessly engages in sexual conduct knowing he or she has contracted HIV

2 Multi-sponsors

• Audrey Pheffer
• Frank Skartados

BILL NUMBER:A9359

Title of bill

An act to amend the penal law, in relation to assault and reckless endangerment by engaging in sexual conduct by persons who have contracted HIV

Purpose

This bill amends the penal law to unmistakably make it a felo- ny to either intentionally, or recklessly with depraved indifference to human life, engage in sexual acts with another when one knows that he or she is infected with human immunodeficiency virus (HIV), where the other individual is unaware of the infection and does not consent to engaging in that conduct.

Summary of provisions

Section 1 of the bill amends section 120.10 of the penal law ("Assault in the First Degree") by creating a new subdivi- sion 5 making it a class B violent felony, for someone with actual notice that he or she has tested positive for and has contracted HIV to intentionally, or recklessly under circumstances evincing a depraved indifference to human life, transmit HIV to another through sexual conduct or engage in behavior reasonably likely to transmit such disease and as a result, transmits HIV.

Section 2 of the bill amends section 120.25 of the penal law ("Reckless Endangerment in the First Degree") by creating a subdivision 2 making it a class D violent felony for someone with actual notice that he or she has tested positive for and has contracted HIV to intentionally, or recklessly under circumstances evincing a depraved indifference to human life, transmit HIV to another through sexual conduct or engage in behav- ior reasonably likely to transmit such disease.

It is an affirmative defense to both of these crimes that the previously non-infected person knew that the defendant had tested positive for HIV, knew such exposure could result, and consented to such sexual conduct. "Sexual conduct" includes "sexual intercourse," "oral sexual conduct," and "anal sexual conduct" as those terms are defined in section 130.00 of the penal law.

Section 3 of the bill sets forth the effective date.

Statement in support

Events on Long Island and around the state have made real the threat unsuspecting adults and children are exposed to when individuals, fully aware of being testing positive for HIV engage in sexual acts with unsuspecting people. It is tantamount to firing a gun into a crowded room; it is so depraved and reckless, that the commission of such acts warrants serious punishment.

Under current law, these individuals have been, and can continue to be prosecuted for a variety of offenses. These newly created crimes, howev- er, will make it easier for prosecutors to define the criminal acts being committed and seek punishment of these perpetrators.

For example, an individual who would transmit the circumstances set forth in the newly defined Assault could receive a determinate sentence of up to 25 years in which a person is actually infected with the HIV where the virus is not actually transmitted, such a determinate sentence of up to 7 years.

HIV virus under the in the First Degree, in prison for each act virus. For each act person could face a

This incredibly reckless behavior rises to the level of criminality and should be punished accordingly.

Fiscal implications

No impact on state finances.

Effective date

This bill would take effect 90 days after enactment.