Court of Appeals Limits Application of Knowing Transfer of Communicable Disease Statute.

State v. Rick, Minn.Ct.App., 9/24/2012.  This is a prosecution under something called the “knowing transfer of communicable disease” statute, Minn.Stat. 609.2241, subd. 2.  Raise your hand if you’ve heard of this statute.  Here’s what it says:

It is a crime, which may be prosecuted under section 609.17, 609.185, 609.19, 609.221, 609.222, 609.223, 609.2231, or 609.224, for a person who knowingly harbors an infectious agent to transfer, if the crime involved:
(1) sexual penetration with another person without having first informed the other person that the person has a communicable disease;
(2) transfer of blood, sperm, organs, or tissue, except as deemed necessary for medical research or if disclosed on donor screening forms; or
(3) sharing of nonsterile syringes or needles for the purpose of injecting drugs.

What the court of appeals had to decide was:

whether a person violates Minn. Stat. § 609.2241, the knowing-transfer-of-communicable-disease statute, by engaging in an act of sexual penetration that results in a transfer of sperm, even when the person first informed the other participant that he has a communicable disease.

Mr. Rick’s actions involved “sexual penetration” with his partner, having first informed his partner that he had a communicable disease.  That’s subdivision 1, on which the jury found Mr. Rick not guilty.  However, the jury convicted him under subdivision 2.  Mr. Rick argued that subdivision 2(1) applies to all acts of sexual penetration, including those that result in a transfer of sperm.  The state, on the other hand, argues that subdivision 2(2) “unambiguously applies” to sexual penetration.  Mr. Rick wins:  read the statute.  Mr. Rick’s actions were informed sexual penetration between consenting adults which takes his actions out of subdivision 1.  Subdivision 2 is aimed at medical procedures. 

This is a case of first impression, likely to draw some attention from the supreme court.