People v. Jensen

Decision Date28 August 1998
Docket NumberDocket No. 210655
Citation586 N.W.2d 748,231 Mich.App. 439
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Brenda Lee JENSEN, Defendant-Appellant. (On Remand)
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Tony Tague, Pros. Atty., and Kevin A. Lynch, Senior Asst. Pros. Atty., for People.

State Appellate Defender by Gail Rodwan, for defendant-appellant on appeal.

Jerrold Schrotenboer, amicus curiae for Prosecuting Attorneys of Michigan.




Following a jury trial, defendant was convicted of three counts of knowing that she tested seropositive for HIV and engaging in sexual penetration without informing her partner that she was HIV infected, M.C.L. § 333.5210; MSA 14.15(5210). Thereafter, the trial court sentenced defendant to concurrent terms of two years and eight months to four years' imprisonment for each of the three counts. On appeal, this Court affirmed her convictions. People v. Jensen, 222 Mich.App. 575, 564 N.W.2d 192 (1997). Defendant filed her application for leave to appeal with the Supreme Court. Pursuant to MCR 7.302(F)(1) and in lieu of granting leave, the Supreme Court ordered:

[T]he judgment of the Court of Appeals is vacated in part and the case is remanded to the Court of Appeals for further consideration and decision on the merits of the question whether M.C.L. § 333.5210; MSA 14.15(5210) is constitutional. MCR 7.302(F)(1). In all other respects, leave to appeal is denied because the Supreme Court is not persuaded that the questions presented should be reviewed. [456 Mich. 931, 575 N.W.2d 552 (1998).]

On remand, we find that the HIV notice statute is neither constitutionally overbroad nor violative of defendant's rights to privacy or against compelled speech.


Initially, we incorporate by reference the extended recitation of facts set forth in the original Jensen, supra at 577-579, 564 N.W.2d 192.

First, defendant asserts that M.C.L. § 333.5210; MSA 14.15(5210), which makes it a crime to fail to inform a sexual partner that one has AIDS 1 or is HIV infected is unconstitutionally overbroad because it (1) includes both consensual and nonconsensual sexual acts and (2) fails to require an intent to cause harm. We believe that defendant's constitutional challenges on these grounds fail.


MCL 333.5210; MSA 14.15(5210) states as follows:

(1) A person who knows that he or she has or has been diagnosed as having acquired immunodeficiency syndrome or acquired immunodeficiency syndrome related complex, or who knows that he or she is HIV infected, and who engages in sexual penetration with another person without having first informed the other person that he or she has acquired immunodeficiency syndrome or acquired immunodeficiency syndrome related complex or is HIV infected, is guilty of a felony.

(2) As used in this section, "sexual penetration" means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, but emission of semen is not required.

As we begin our overbreadth analysis, we are mindful that a statute is accorded a strong presumption of validity and that we have a duty to construe it as valid absent a clear showing of unconstitutionality. People v. White, 212 Mich.App. 298, 309, 536 N.W.2d 876 (1995). Moreover, the constitutionality of a statute is a question of law that we review de novo. Mahaffey v. Attorney General, 222 Mich.App. 325, 334-335, 564 N.W.2d 104 (1997).

The overbreadth doctrine is primarily applied to First Amendment cases where an overbroad statute prohibits constitutionally protected conduct. People v. Cavaiani, 172 Mich.App. 706, 711, 432 N.W.2d 409 (1988). The overbreadth of a statute must be real and substantial; it must be judged in relation to the legitimate sweep of the statute where conduct and not merely speech is involved. Broadrick v. Oklahoma 413 U.S. 601, 614-615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). In Broadrick, supra at 610, 93 S.Ct. 2908, the United States Supreme Court recognized that a person to whom a statute may be constitutionally applied may not challenge that statute as overbroad on the grounds that it conceivably may be unconstitutional when applied to others in situations not before the court.

In People v. Russell, 158 Ill.2d 23, 196 Ill.Dec. 629, 630 N.E.2d 794 (1994), the Illinois Supreme Court was faced with a similar overbreadth argument when the defendant challenged Illinois' criminal statute prohibiting the knowing transmission of HIV to another through intimate contact. 2 Upholding the statute against the defendant's constitutional challenge, the Illinois Supreme Court observed:

In one of the cases before us, the criminal complaint charges that the defendant Caretha Russell knew that she was infected with the HIV virus when she engaged in consensual sexual intercourse with Daren Smith without telling Smith of her infection. In the other case, defendant Timothy Lunsford is charged with raping a woman at a time when he knew he was infected with the HIV virus.

Neither the statute nor the cases before us have even the slightest connection with free speech. Consequently, pursuant to constitutional interpretations of the United States Supreme Court, defendants' overbreadth argument and their argument of facial vagueness are inapplicable. Bates v. State Bar, 433 U.S. 350, 380, 97 S.Ct. 2691, 2707, 53 L.Ed.2d 810, 833 (1977); Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Broadrick, [supra at 611-617, 93 S.Ct. 2908]; Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). [Russell, supra at 25-26, 196 Ill.Dec. 629, 630 N.E.2d 794 (emphasis added).]

In the case at bar, defendant specifically argues that the statute is overbroad because it fails to limit the offense to consensual sexual acts but instead seemingly also compels victims of nonconsensual sex who happen to be HIV or AIDS carriers to inform their attackers of that status. In formulating her argument, however, defendant fails to differentiate between the speech of a consensual partner versus a nonconsensual partner, other than by suggesting that to compel speech from the latter is unfair. Because defendant does not establish how the statute in question improperly sweeps within its inclusion both protected and unprotected conduct, this facet of the defendant's overbreadth analysis is inappropriate.

More importantly, however, defendant's conduct, i.e., engaging in sexual intercourse with the victim without previously telling him that she was HIV positive, is clearly encompassed by the language of the statute. Accord State v. Gamberella, 633 So.2d 595, 603 (La.App., 1993) (upholding the constitutionality of Louisiana's statute criminalizing the intentional exposure of individuals to AIDs or HIV without their informed consent). 3 Because a person to whom a statute may constitutionally be applied will not be allowed to challenge that statute on the ground that it conceivably may be applied unconstitutionally to others in situations not before the court, Broadrick, supra; Gamberella, supra, we find no merit in defendant's overbreadth claim.

Moreover, because the present case does not involve a victim of nonconsensual sexual acts, this Court's exploration of any policy arguments regarding whether a sexual assault victim should be held criminally responsible for not informing the attacker is also inappropriate. Although defendant does not question whether the Legislature truly intended to implicate both consensual and nonconsensual sexual partners within the ambit of the statute, defendant's behavior in this case fell squarely within the contemplation of the statute. Moreover, defendant was found competent to stand trial and criminally responsible for her behavior. The evidence established that she understood the dangers of having unprotected sexual relations with another person and that she had a duty to warn them, but she disregarded both. The evidence also established that defendant consensually engaged in sexual relations with the victim and purposefully withheld the fact she was HIV infected because she did not want to "kill the relationship," and wanted people to like her. We therefore believe that because the statute squarely applies to defendant, she is also precluded from engaging in this overbreadth analysis. Broadrick, supra.


Defendant further argues that the statute is unconstitutional because it does not contain an intent, or mens rea, requirement. More specifically, defendant asserts that because the statute does not require a specific intent to harm, persons who do not understand or appreciate the consequences of their acts can be found criminally responsible. We disagree.

In light of defendant's repeated argument that mentally deficient individuals will be prosecuted under this statute, we reiterate and remind defendant that, even though the evidence in the instant case does not support such a factual situation, if a "person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law," a finding of criminal responsibility will be precluded under the legal insanity defense statute, M.C.L. § 768.21a(1); MSA 28.1044(1)(1).

With respect to defendant's mens rea argument, we note that fewer than half the states have criminal statutes penalizing the exposure of others to HIV, and only a few of those contain an explicit mens rea requirement. See Idaho Code 39-608 ("Any person who exposes another in any manner with the intent to infect or, knowing that he or she is or has been afflicted with [AIDS, ARC, or HIV], transfers or attempts to...

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