Kansas Attorney General Opinion 1992-029

ROBERT T. STEPHAN
ATTORNEY GENERAL
February 24, 1992
ATTORNEY GENERAL OPINION NO. 92- 29
The Honorable Wint Winter, Jr.
State Senator, 2nd District
State Capitol, Room 120-S
Topeka, Kansas 66612
Re: Crimes and Punishments -- Crimes Against Persons --
Assault; Battery; Prosecution for Intentional
Exposure to Human Immunodeficiency Virus (HIV)
Synopsis: The present assault and battery statutes are not
adequate to prosecute an HIV infected individual
who engages in conduct defined in 42 U.S.C.S. §
300ff-47. Senate Bill No. 287 with its proposed
amendments would allow such a prosecution. Senate
Bill No. 358 which redefines the crime of battery,
combined with the criminal attempt statute when
appropriate, may permit such a prosecution. Cited
herein: K.S.A. 21-3301; 21-3408; 21-3412; 21-3414;
42 U.S.C.S. § 300ff-41; 42 U.S.C.S. § 300ff-47.
*
Dear Senator Winter:
As state senator for the second district you ask our opinion
regarding whether existing criminal statutes satisfy the
requirements of 42 U.S.C.S. § 300ff-47. That section of
what is commonly known as the Ryan White law requires states
to make intentional exposure to another of the human
immunodeficiency virus (HIV) virus a crime as a condition
of receiving certain federal grants. If existing statutes are
not satisfactory, you ask whether Senate Bill No. 358 or

Senate Bill No. 287, with proposed amendments, would meet the
federal requirement.
42 U.S.C.S. § 300ff-47 provides:
"(a) In general. The Secretary may not
make a grant under section 2641 [42 USCS
§ 300ff-41] to a State unless the chief
executive officer determines that the
criminal laws of the State are adequate to
prosecute any HIV infected individual,
subject to the condition described in
subsection (b), who -
"(1) makes a donation of blood, semen, or
breast milk, if the individual knows that
he or she is infected with HIV and
intends, through such donation, to expose
another [to] HIV in the event that the
donation is utilized;
"(2) engages in sexual activity if the
individual knows that he or she is
infected with HIV and intends, through
such sexual activity, to expose another to
HIV; and
"(3) injects himself or herself with a
hypodermic needle and subsequently
provides the needle to another person for
purposes of hypodermic injection, if the
individual knows that he or she is
infected and intends, through the
provision of the needle, to expose another
to such etiologic agent in the event that
the needle is utilized."
Since the crimes of battery, K.S.A. 21-3412, and aggravated
battery, K.S.A. 21-3414, are both defined in terms of a
"touching or application of force," in our opinion neither
statute would allow a prosecution for the conduct defined in
42 U.S.C.S. § 300ff-47(a)(1) or (3). Those sections mandate
that states proscribe conduct which does not require any
touching or application of force.
Because a prosecution for assault under K.S.A. 21-3408
requires an "immediate apprehension of bodily harm," in our
opinion that statute would not permit a prosecution for

,conduct required to be proscribed under 42 U.S.C.S. §
300ff-47.
We now turn to an evaluation of Senate Bill No. 287 with its
proposed amendments:
"Section 1. (a) it is unlawful for an
individual who knows one self to be
infected with human immunodeficiency
virus (HIV) a life threatening
communicable disease knowingly:
"(1) To engage in sexual intercourse or
sodomy with another individual with
intent to infect without first
informing that individual of
with the human immunodeficiency
virus (HIV) that life threatening
communicable disease;
"(2) to sell or donate one's own blood,
blood products, semen, tissue, organs or
other body fluids with the intent to
infect the recipient with a life
threatening communicable disease;
"(3) to share with another individual a
hypodermic needle, syringe, or both, for
the introduction of drugs or any other
substance into, or for the withdrawal of
blood or body fluids from, the other
individual's body with the intent to
infect another person with a life
threatening communicable disease
without first informing that individual
that the needle or syringe; or both have
been used by someone infected with human
immunodeficiency virus (HIV).
"(b) As used in this section, the term
'sexual intercourse' shall not include
penetration by any object other than the
male sex organ; the term 'sodomy' shall
not include the penetration of the anal
opening by any object other then the male
sex organ.

"(c) Violation of this section is a class
A misdemeanor. Sec. 2. This act shall
take effect and be in force from and after
its publication in the statute book."
This bill virtually mirrors the federal requirements as set
forth in 42 U.S.C.S. § 300ff-47 with the exception that the
more generic term of "a life threatening communicable disease"
is substituted for an "HIV infected individual." In our
opinion this bill with its proposed amendments would be
adequate to enable a prosecution of any HIV infected
individual who engaged in any of the conduct required to be
proscribed by 42 U.S.C.S. § 300ff-47.
Senate Bill No. 358 would amend K.S.A. 21-3412, battery, to
include in its prohibition "intentionally or recklessly
causing bodily harm to another person." Such an amendment may
provide a Kansas statute adequate to prosecute any HIV
infected individual who engaged in the conduct defined by 42
U.S.C.S. § 300ff-47 if the recipient of donated blood,
semen, breast milk, sexual activity, or a hypodermic needle
actually became infected with HIV. In the absence of actual
infection, such an HIV infected individual arguably could be
prosecuted for attempted battery pursuant to K.S.A. 21-3301
which defines attempt as:
"An attempt is any overt act toward the
perpetration of a crime done by a person
who intends to commit such crime but fails
in the perpetration thereof or is
prevented or intercepted in executing such
crime."
However, in the absence of any identifiable victim, there is
some question of whether the element of "harm to another
person" would be established in a prosecution for attempted
battery. We note this more as a potential question which
could be raised in such a prosecution than as a definitive
statement of an absolute defense to such a change.
In conclusion, the present assault and battery statutes are
not adequate to prosecute an HIV infected individual who
engages in conduct defined in 42 U.S.C.S. § 300ff - 47.
Senate Bill No. 287 with its proposed amendments would allow
such a prosecution. Senate Bill No. 358 which redefines the

crime of battery, combined with the criminal attempt statute
when appropriate, may permit such a prosecution.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Camille Nohe
Assistant Attorney General
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