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HIV as a deadly weapon?

Posted by: Nicole DeBorde
March 23, 2010
Topic: Assault

Prosecutors in Harris County stepped into uncharted waters when they cited HIV as a deadly weapon in charging a man with aggravated sexual assault of a child last week.  Though this is a first for Harris County, this is not a first for the State of Texas.  Appellate lawyers in Harris County say the earliest case to charge HIV as a deadly weapon was tried in Austin about 15 years ago.  The conviction in that case was upheld in 1997.  

The Texas Penal Code states that a deadly weapon is anything that is capable, in its manner and use, of causing death or serious bodily injury.  Thus, the logic used by the Harris County District Attorney’s Office is that the transmission of fluids when you know you are HIV positive is capable of causing serious bodily injury and/or death.  What does aggravated mean?  It can mean a couple of different things.  First, it can take a case from being a Class A misdemeanor Assault and make it a 2nd degree felony.  It can take a 2nd degree felony and upgrade it to a 1st degree felony.  The difference is the punishment range.  One of the more important effects is evident in the event of a guilty plea and/or conviction.  A deadly weapon finding means that a person has to serve ½ of their sentence before they are eligible for parole as opposed to the traditional ¼.  

So, the questions follow….How about safe sex?  Is that enough to surmount a deadly weapon allegation?  And then let’s extend their logic even further to assault cases?  Does a bite or a spitting case go from an assault to an aggravated assault?  Guess we’ll have to wait and see….