A police officer in Palm Beach County is facing two felony counts for failing to tell his sexual partners he has the HIV virus. Chapter 384 of the Florida statutes governs Sexually Transmissible Diseases. Under Florida statute 384.24 "Unlawful acts" it is a crime if:
(1) It is unlawful for any person who has chancroid, gonorrhea, granuloma inguinale, lymphogranuloma venereum, genital herpes simplex, chlamydia, nongonococcal urethritis (NGU), pelvic inflammatory disease (PID)/acute salpingitis, or syphilis, when such person knows he or she is infected with one or more of these diseases and when such person has been informed that he or she may communicate this disease to another person through sexual intercourse, to have sexual intercourse with any other person, unless such other person has been informed of the presence of the sexually transmissible disease and has consented to the sexual intercourse.
(2) It is unlawful for any person who has human immunodeficiency virus (HIV) infection, when such person knows he or she is infected with this disease and when such person has been informed that he or she may communicate this disease to another person through sexual intercourse, to have sexual intercourse with any other person, unless such other person has been informed of the presence of the sexually transmissible disease and has consented to the sexual intercourse.
Therefore, knowledge is an important element of this crime. That means a prosecutor must prove the person charged with this crime knew they had the sexually transmitted disease (STD) and knew the disease could be passed to a sexual partner. It is also a defense to the crime if the infected person informs their sexual partner prior to engaging in sex that they are infected.
Who has the burden to prove the defense? This is an important question for anyone charged with this crime or other crimes that have defenses such as Carrying a Concealed Weapon or Firearm in Florida. This is also why it is important you retain an experienced criminal defense lawyer who knows how to interpret statutes to insure you get every defense possible if you are charged with a crime. In the STD transmitting criminal case, the prosecutor bears the burden of proving that the alleged victim was not informed that the Defendant was infected with an STD. That is because the defense is contained in the actual, enacting statute. This may be simple to do by just having the alleged victim testify that they were never informed about the STD. However, if the prosecutor does not present any evidence as to this fact, the case would be dismissed at trial.
In the Carrying a Concealed Firearm case, it is an affirmative defense to prove the person charged with the crime had a license to carry permit. That means the Defendant must present evidence in order to receive the benefit of this defense. That is because the affirmative defense to the crime is contained in a clause subsequent to the Carrying Concealed Weapon statute and is a "subsequent clause." Thus, the prosecutor does not have to prove the absence of a license. State v. Robarge, 450 So.2d 855 (Fla. 1984).
What are the penalties for unlawfully transmitting HIV or a sexual disease? It depends. The penalties are contained in Florida statute 384.34 "Penalties".
- Any person who violates the provisions of 384.24(1) commits a misdemeanor of the first degree, punishable by up to a year in jail.
- Any person who violates the provisions of the department's rules pertaining to sexually transmissible diseases may be punished by a fine not to exceed $500 for each violation. Any penalties enforced under this subsection shall be in addition to other penalties provided by this chapter.
- Any person who violates 384.24(2) commits a felony of the third degree, punishable by up to 5 years in Florida State Prison (FSP).
- Any person who commits multiple violations of s. 384.24(2) commits a felony of the first degree, punishable by a term of imprisonment not exceeding 30 years.
In the officer's case, he was screened for testing when he was first hired as a police officer. That would allegedly give him knowledge of the STD virus. It is mandatory that all police officers are screened for STD's as part of their pre-employment screening before being hired on the police force. Because there were more than one alleged victim, he is being charged with two counts of criminal transmission of HIV as a first-degree felony and faces 30 years in prison for each criminal count. There was allegedly one more victim, but the statute of limitations ran out on that act. A potential defense to be argued will be whether either or both counts could be charged as 1st degree felonies. The legal defense or question being is a person charged under this crime required to be convicted of at least one offense before they can be charged with a 1st degree felony? The defense will argue he was never convicted of this criminal charge before, so there have been no criminal violations necessary to aggravate the charge to a 1st degree felony. This could mean the difference between 60 years in prison maximum he faces or 10 years in Florida State Prison.
Sex crimes or sexually related crimes are very serious under Florida law. If you have been arrested for lewd battery, transmission of an STD, possession of child pornography retain an experienced sexual crimes defense attorney to fight for you in court.
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Thomas C. Grajek 863-688-4606