Editor’s note: This piece from the SCOV Law Blog is by SCOV Law editor Andrew Delaney.
State v. Billington, 2020 VT 78
Will concealing one’s HIV status be enough to sustain a charge of aggravated sexual assault? Read on to find out.
I want to say something like, “Kids, don’t read this one,” but as a kid I used to look for those “Parental Advisory” stickers to determine what albums to purchase. See, back in the day, there were these things called “record shops” and … anywho.
Here’s what happened. Complainant and defendant had three separate sexual encounters. Complainant was not interested at first because she’d just broken up with her boyfriend. Apparently, defendant was persistent and complainant “caved,” though she got “suspicious” when defendant put on a condom because “most men these days don’t use a condom when they know the female is ‘fixed.’” Naturally, she asked if defendant had an STD. Defendant said he did not, but it turns out defendant actually was HIV-positive. The next day they again had sex using a condom, though complainant felt bad about it because it felt like cheating on her boyfriend.
The following day, defendant tried to get something going, but complainant wasn’t into it. “Complainant said she did not want to have sex with defendant and refused to perform oral sex when defendant asked her to. Complainant agreed, however, to let defendant masturbate on her.” Defendant continued his efforts, which complainant rebuffed. “Defendant eventually forced his penis into and ejaculated inside of complainant’s mouth against her will.” I’m just quoting from the opinion. Wasn’t I going to say, “Kids, don’t read this one”?
Complainant then heard rumors that defendant was HIV positive. Though he denied it at first, he did eventually admit that he was.
Based on all this, the State charged defendant with aggravated sexual assault on the theory that defendant’s lie about his HIV status negated the complainant’s consent during each of their encounters, resulting in repeated nonconsensual acts.
Defendant moved to review probable cause. Though the trial court had made an initial finding of probable cause, it withdrew that finding and dismissed the charge with prejudice. The trial court found that the Legislature didn’t intend to criminalize nondisclosure of HIV-positive status. The trial court first noted that the statute is silent about whether lying about an STD negates consent and thus the statute is ambiguous. The Legislature gave examples of when a person cannot consent and failure of a partner to disclose HIV-positive status is not one of them. The trial court then looked to the statutory scheme, and noted that — unlike many other states — Vermont does not criminalize nondisclosure of HIV status. Finally, the trial court noted that there’s no case law in Vermont applying the informed-consent doctrine to the crime of sexual assault.
The State appeals. It argues that fraud vitiates consent. To be clear, this isn’t the only thing going on for defendant. The State added the charge in question — aggravated sexual assault based on repeated nonconsensual acts — the day after defendant’s trial on sexual assault and lewd and lascivious conduct ended with a hung jury. Those two charges remain pending.
The State contends that probable cause exists for the aggravated sexual assault charge because the Legislature included the word “voluntary” in the definition of consent. And in the civil context, SCOV has held that deceit undermines consent. The State also points to other states that specifically go with the State’s theory — that consent is not valid when HIV status is not disclosed.
Defendant argues that the Legislature has not specified by statute that fraud undermines consent. That — defendant argues — leaves us with the common law and at common law, lying about his HIV status wouldn’t undermine consent. Defendant also argues that the State’s interpretation is no good because it’s too vague — if the State’s interpretation stands, the statute “would be void for vagueness because it would not provide defendants with sufficient notice that lying to induce sex could constitute a felonious act.”
SCOV notes that this case turns on whether the allegations in the affidavit support a probable-cause finding on the aggravated-sexual-assault charge. The question is “whether under the sexual assault statutory scheme, fraud—namely, lying about one’s HIV status—undermines consent.” This is a question of law and SCOV applies de novo review.
If you don’t know the drill for interpreting statutes, where have you been for the last decade? Just in case you need a refresher, the primary objective is to determine and follow the Legislature’s intent. If the plain language is clear, the plain language controls. If the language is ambiguous — and here it is — then SCOV ascertains “legislative intent through consideration of the entire statute, including its subject matter, effects and consequences, as well as the reason and spirit of the law.”
SCOV concludes the trial court got it right when it concluded there was no probable cause for aggravated sexual assault under the statute. SCOV agrees that the statute is ambiguous and that there’s no indication — considering the statutory sexual-assault scheme as a whole — the Legislature intended for fraud to cancel consent. Without clarity on that point, the State’s interpretation of the statute implicates due-process concerns.
SCOV starts with the statute’s plain language. The statute (subsection (a)(9) specifically) prohibits “nonconsensual sexual acts.” While nonconsensual is undefined in the statute — I just have to include this phrasing — “the nominal form of its opposite” is. “Consent is defined as ‘words or actions by a person indicating a voluntary agreement to engage in a sexual act.’” I could make jokes here about Marvin Gaye, candles, and white wine, but I’m trying to write a serious summary here.
SCOV distinguishes between consent and informed consent because the statute is concerned with the former. Informed consent goes beyond garden-variety consent because informed consent includes knowledge of the full panoply of risks and alternatives. Informed consent applies when we’re talking about medical procedures; it doesn’t apply when we’re talking about sexual acts — at least not yet. We’re talking about the act itself, not the consequences of it.
SCOV distinguishes in this case between a person under the age of 16 — statutorily incapable of providing consent — with the idea here: that consent is made ineffective when there’s an element of fraud involved in obtaining that consent.
SCOV reasons: “The sexual assault statutory scheme never explicitly mentions fraud or its relation to consent.” SCOV also explains that “Due process requires that criminal statutes define proscribed conduct with sufficient specificity as to provide fair warning to potential offenders. …” Without some indication that the Legislature intended for fraud to vitiate consent, the State’s theory renders the statute void for vagueness. What wouldn’t seem to be a crime under a plain reading of the statute becomes a serious crime and gives prosecutors wide discretion to bring charges under circumstances that don’t necessarily fit the parameters given by the Legislature.
Accordingly, SCOV affirms and this case stays dismissed.
