Court of Appeals Maryland (1996)
Often Ignored in Class Discussion:
Although this case stands for the proposition that HIV status is insufficient to prove mens rea for attempt to commit homicide, the overview of the case tends to leave out some of its other important contexts. Essential to understanding the prosecution of defendants with HIV (indeed, the opinion notes some of these cases) is their connection to society’s homophobic prejudice. The historical context for this case lies in the gay panic that begin in the 1980s when the federal government, under the Reagan administration, refused to lend its support to those with the condition. In that time, thousands of gay men and women died largely due to a lack of government support.
It’s this cloud of death combined with society’s already entrenched homophobia that colored the proliferation of HIV crime statutes to regulate the sexual behavior of LGBTQ people. As explained by Professor Shannon Gilreath of Wake Forest Law School, since the overruling of Bowers in 2003, the move to criminalize HIV-positive people has been another attempt to regulate sexuality. In some sense, this increased criminality of HIV status, which disproportionately impacts people of color and/or LGBT people, has taken the place of sodomy in criminal statues. Today some gay men of color are charged with crimes simply because of their HIV status and sexual relationship with partners. Does the sexual partner have a right to know the HIV-status of their sexual partner? The court in Smallwood seems to suggest as much, but what about the stigma that HIV-positive people experience once their status is known? Why place the burden on HIV-positive person when it takes two to have sex? In this context, perhaps the alleged victims should have the equal burden of looking after their own sexual health. Perhaps consenting to unprotected sex is consenting to the assumption of risk that unprotected sex always implies.
Although this court is critical of the nexus between HIV and death, it does not fully explain the lack of nexus between one particular sexual encounter and chances of HIV infection. For instance, the rates of HIV infection when it comes to unprotected oral sex are statistically marginal. Suppose someone has the intention of passing on the condition through oral sex, would that single low-risk sexual encounter count as an attempt to commit homicide? Although the risk of infection for penetrative anal or vaginal sex is greater, the chance of infection from a single exposure is low. By contrast to 1996, today, with advances in medicine, HIV is thought to be much more akin to a chronic condition than a fatal disease. HIV-positive people who receive treatment live full and otherwise healthy lives. In this view, does the criminalization of HIV status go beyond fair punishment when death is not even a likely result? If you think there is still a harm to be redressed, then might it be better resolved in the civil context? Indeed, what of the fact that once in treatment, HIV positive people see a drastic reduction of their viral load, which means they are statistically unlikely to pass on the condition even when participating in unprotected sex. Should there be an exception in criminal statutes for those HIV-positive individuals who comply with treatment?
 See Shannon Gilreath, Examining Critical Race Theory: Outsider Jurisprudence and HIV/AIDS – Perspectives on Desire and Power, 33 Law & Ineq. 371 (2015).
 See e.g., Catherine Hanssens, Missouri Judge’s Sentencing of Michael Johnson in HIV “Exposure” Case Decried As “Barbaric” , HIV L. Policy, July 14, 2015 http://www.hivlawandpolicy.org/news/missouri-judges-sentencing-michael-johnson-hiv-“exposure”-case-decried-as-“barbaric”.
 Estimated Risk Per Exposure, NAM http://www.aidsmap.com/Estimated-risk-per-exposure/page/1324038/ - item1324091.