Skip to main content
Unpublished Paper
Exceptions: The Criminal Law's Illogical Approach to HIV-Related Aggravated Assaults
ExpressO (2010)
  • Ari E Waldman, California Western School of Law
This article identifies logical and due process errors in cases involving HIV-related aggravated assaults, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this paper suggests that punishing this conduct through a charge of aggravated assault – which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death – is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the rule of thumb that HIV can possibly be transmitted through bodily fluids as sufficient evidence for finding that a particular HIV-positive defendant who had unprotected sex is likely to cause substantial harm. This leads to two due process errors: (1) the conflation of what is theoretically possible for what is likely, and (2) the use of data about a hypothetical average HIV-positive individual as proof of the effects of a particular HIV-positive individual’s behavior. By relying on the rule of thumb that HIV can possibly be transmitted through bodily fluids rather than investigating any unique features of the particular defendant on trial, these jurisdictions violate the due process clause’s requirement of “personal guilt.” And, when that rule of thumb is applied to an HIV-positive defendant whose undetectable viral load makes him an exception to the general rule, that jurisdiction commits Aristotle’s Fallacy of Accident. After explaining these concepts, this article identifies various cases from the states and the military that commit these errors. These cases are then compared to similar aggravated assault cases from Canada that do not make the same mistakes and use the kind of particularized proof that is required by logic and the due process clause. The article concludes that the errors in certain HIV-related aggravated assault cases suggest that punishing such behavior in this manner may not be effective.
  • HIV,
  • Gay and Lesbian,
  • LGBT,
  • Logic
Publication Date
November 9, 2010
Citation Information
Ari E Waldman. "Exceptions: The Criminal Law's Illogical Approach to HIV-Related Aggravated Assaults" ExpressO (2010)
Available at: