Jim Porter: Attempted murder by AIDS

Jim PorterSpecial to the Sun

TAHOE/TRUCKEE andamp;#8212; Remember the case we wrote about earlier this year, where the gal was awarded more than $6 million when her sexual partner told her he did not have herpes, with that law being summarized in the case as follows: andamp;#8220;A person who knows or should know he or she has herpes and fails to disclose that fact, or misrepresents that he or she is disease-free, may be liable for transmitting the disease to a sexual partnerandamp;#8221;?Well, in somewhat of an extension of that theory of civil liability, we now have People v. Andrew Lee Boyer, where Boyer was convicted of attempted murder for having unprotected sex while infected with the acquired immune deficiency syndrome (AIDS), the final stage of human immunodeficiency virus (HIV) infection. Police investigationIn 1997, an Oregon jury convicted Boyer of more than 20 counts of sexual offenses against four victims, who were all friends and attended special education programs. They were andamp;#8220;incapable of consenting to sexual conduct due to age or mental defect,andamp;#8221; as the court put it. You do not want to know what Boyer, who was in his mid-30s, did to these young people. Believe me. Suffice it to say there was penetration.Boyer was also convicted of two counts of attempted aggravated murder, based on the theory that in the course of committing the crimes of sexual abuse and sodomy, he attempted to cause the deaths of these individuals as he knew he was infected with AIDS. AppealBoyer appealed the attempted murder conviction arguing that the murder conviction violated his due process rights because the prosecutor did not prove he intended to cause death. Attempted MurderUnder Oregon law, andamp;#8220;a person commits attempted murder when he or she attempts, without justification or excuse, intentionally to cause the death of another human being.andamp;#8221; andamp;#8220;Intentionallyandamp;#8221; is defined as andamp;#8220;a conscience objective to cause the result or to engage in the conduct so described.andamp;#8221; It requires andamp;#8220;a conscience objective to cause the death,andamp;#8221; not merely reckless indifference, which would be reckless endangerment, a lesser crime. Ruling The court noted that while the evidence of intent may be andamp;#8220;thin,andamp;#8221; Oregon law andamp;#8220;clearly establishes the principle that a person with AIDS having unprotected sex with others, knowing that the disease could spread this way, and knowing it could be fatal, can be held to have satisfied the Oregon substantive element of intent for an attempted murder charge. That conclusion is not wholly irrational.andamp;#8221;Attempted aggravated murder conviction, along with the brutal sex convictions, upheld. As it should be. On vacation next week; enjoy the respite.Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached-at or at-the firm’s website:

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