The law and HIV: Is Charlie Sheen in trouble?

Celebrity, Crime

A version of this post originally appeared on Avvo’s Legal Guides as a contribution from attorney Karen Conti

Actor Charlie Sheen appeared on the “Today” show this week, to reveal that he was HIV positive, and also that he has known about it for four years.

Sheen contends that he told all of his sexual partners of his condition, that he had unprotected sex after the diagnosis only twice, and that it was “under the care of my doctor and they were completely warned ahead of time.” This raises interesting legal issues about a person’s criminal and civil culpability for exposing a sexual partner to the virus.

Can he be prosecuted?

Criminal convictions in this arena are rare. Since 2008, the Center for HIV Law and Policy has identified only 226 prosecutions and arrests for exposure in the United States. Only a fraction of these cases involve exposure through consensual sex. The others involve activities such as biting, scratching and spitting, or violent sex crimes such as rape or forcible sodomy.

Some states prosecute offenders under laws of attempted murder, battery and the like. Others have laws specific to the transmission of HIV or AIDS. Interestingly, California (where Sheen resides) has one of the more lenient criminal laws in this area. Under California law, if you engage in unprotected sex knowing that you are infected with HIV, you are guilty of a crime, but only if you intentionally attempt to infect the person. Just knowing that you have HIV is not enough; you must actually intend to transmit the disease.

In most other states, it is not necessary to prove intent to infect; it is sufficient to prove that a person engaged in unprotected sex knowing he has HIV and failing to notify his partner. In any event, the fact that a person did not contract a disease is not a defense to the crime of exposing a person to it.

More expensive than illegal?

Civil lawsuits are more common than criminal prosecution. Apparently, Sheen paid millions of dollars in hush money to third parties who had knowledge of his condition. Could it be that others will now bring suit saying that they had sex with Sheen not knowing about his four-year condition?

These cases proceed under the tort theories of negligence, battery, fraud and intentional infliction of emotional distress. The most famous of these cases occurred in California. Mark Christian, the sexual partner of Rock Hudson, sued Hudson’s estate and received a jury award of $5.5 million. Christian claimed that, despite his repeated inquiries, Hudson and his private secretary denied that Hudson had HIV. Even though he did not become infected, Christian won the award by arguing that he suffered severe emotional stress by merely being exposed to the virus.

Sheen’s defense will likely be either that he did not know of his condition at the time of the encounter, or that he warned the partner and they consented anyway. In any event, his legal bills are likely to be astronomical. Given Charlie Sheen’s health condition, however, this may be the least of his concerns.

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