Volume 75, Number 28 | 14 - 20 July 2005

PENIS, BODY FLUIDS OF HIV-POSITIVE MAN RULED DEADLY WEAPONS

Upholding a conviction of “aggravated sexual assault of a child,” on
July 8, the Texas Court of Appeals rejected an HIV-positive defendant’s
claim that he was “overcharged” for the offense because his penis and
body fluids do not constitute “deadly weapons” within the meaning of the
Texas Penal Code.

Defendant Jimi Hofmann learned that he was HIV-positive in 1992. The
incidents leading to criminal charges against him took place ten years
later.

During 2002, Hofmann initiated unprotected sexual contact with his
daughter, A.K., then about age 15, telling her that he was not actually
her biological father, although he was in fact her father. The opinion
does not indicate whether A.K. had any knowledge about her father’s
HIV-status, but said that although she was below the age of consent, she
did agree to have sex.

Hofmann’s activities came to the attention of law enforcement after he
took advantage of a visit to a motel room to initiate group sex
involving himself, his daughter and C.H., a son by a woman who is not
the girl’s mother. C.H. later told his mother about Hofmann encouraging
him to have sex with his half-sister.

There is no indication that A.K. contracted HIV as a result of sexual
activity with her father.

Hofmann was charged with aggravated sexual assault of A.K., and
convicted of the crime. Under the statute, use of a deadly weapon is an
aggravating circumstance. A deadly weapon is defined as “anything that
in the manner of its use or intended use is capable of causing death or
serious bodily injury,” according to Texas statute.

On appeal, Hofmann argued that he should not have been charged with the
aggravated offense, because his penis and bodily fluids do not
constitute deadly weapons, despite his HIV-positive status.

According to Justice Bea Ann Smith, “Prosecution witness Robert Kaspar
explained the nature of HIV and its transmission and linked the medical
facts to the plain language of the statute. Jimi Hofmann made no attempt
at trial, and makes no attempt now, to contradict Kaspar’s testimony. He
argues instead that the State’s reading of the deadly weapon provision
is unreasonably broad and that the legislature’s only intent was to
punish the use of violence in sexual assault, not to increase criminal
penalties for the victims of a disease.”

Rejecting this argument, Smith cited a 1997 Texas appeals court decision
that upheld the conviction of an HIV-positive man for aggravated assault
of an HIV-negative woman, which stated that “the jury could rationally
conclude beyond a reasonable doubt that he intentionally or knowingly
used his penis and bodily fluids in manner capable of causing death to
[the victim] by infecting her with HIV.”

In neither case, did rulings consider to what degree HIV remains a
deadly disease, and Smith quoted another judge as observing that the
degree to which the deadly weapon definition “has fallen prey to
‘mission creep’ into areas unforeseen and probably unintended by the
Legislature,” the Legislature was best situated to consider tightening
up the language.

Hoffman could appeal his sentence to the Court of Criminal Appeals,
Texas’s highest criminal appeals court.

—Arthur S. Leonard

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