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Exceptions: The Criminal Law's Illogical Approach to HIV-Related Aggravated Assaults

56 Pages Posted: 12 Apr 2011 Last revised: 16 Jun 2012

Ari Ezra Waldman

New York Law School

Date Written: October 1, 2010


This Article identifies logical and due process errors in HIV-related aggravated assault cases, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this Article suggests that punishing this conduct through a charge of aggravated assault - which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death - is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the "rule of thumb" that HIV can possibly be transmitted through bodily fluids as sufficient evidence for finding that a particular HIV-positive defendant who had unprotected sex did so in a manner likely to cause substantial harm. This leads to two due process errors: (1) the conflation of what is theoretically possible for what is likely, and (2) the use of data about a hypothetical, average, HIV-positive individual as proof of the effects of a particular HIV-positive individual’s behavior. By relying on the rule of thumb that HIV can be transmitted through bodily fluids rather than investigating the unique features of the particular defendant on trial, these jurisdictions violate the Due Process Clause’s requirement of "personal guilt." Aristotle’s "Fallacy of Accident" is then committed when this generalization is applied to an HIV-positive defendant whose viral load is undetectable, making him an exception to the general rule. After explaining these concepts, this Article identifies various cases from the states and the military that commit these errors. These cases are then compared to similar aggravated assault cases from Canada that do not make the same mistakes and use the kind of particularized proof that is required by both common logic and the Due Process Clause.

Keywords: Constitutional Law, Criminal Law, LGBT, gay and lesbian, HIV/AIDS, Logic

Suggested Citation

Waldman, Ari Ezra, Exceptions: The Criminal Law's Illogical Approach to HIV-Related Aggravated Assaults (October 1, 2010). Virginia Journal of Social Policy and the Law, Vol. 18, No. 3, Spring 2011. Available at SSRN:

Ari Ezra Waldman (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
212.431.2864 (Phone)

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