Attempted Murder for Passing on AIDS Upheld

9th Circuit CourthouseA highly unusual conviction for attempted murder through intentionally passing the AIDS infection to others through unprotected sex has been upheld reluctantly by a federal appeals court.

Andrew Lee Boyer, an Oregon man who knew he had AIDS, was convicted in 1997 of more than 20 counts of sexual offenses against four boys as young as 12 and 13 years old, including attempted murder on the theory that through his sexual abuse and sodomy he was trying to cause the death of two individuals by infecting them with AIDS.

One of his victims was 18 years old but with a mental capacity of a first grader, according to the court.

“With some reluctance because of the thin nature of the evidence of intent, but concluding that state courts have a broad general entitlement to deference to define their own state criminal law… we conclude that the state courts’ determination that sufficient evidence existed to support Boyer’s convictions… was not objectively unreasonable,” wrote Judge Ronald Gould.  Gould, who is a conservative, was joined by two liberals on the court, Judges Raymond Fisher and Richard Paez.

Oregon prosecutors said his actions were analogous to placing a time bomb in a city street, not knowing if someone would be there when it went off.

Boyer’s lawyers argued the state had failed to show his intent to murder and at most only proved that he was reckless.

 A jury convicted him on both attempted murder counts and he was ultimately sentenced for all the counts to over 50 years in prison.

 Gould found that the legal standard needed to overturn the  jury’s verdict was that it was “objectively unreasonable.”

Under Oregon law, Boyer’s conviction is sufficient if the prosecutor’s showed he acted “with a conscious objective to cause” the death of the two boys.

“The issue is not so much what Boyer subjectively intended in fact, but what a rational jury could have concluded he intended,” Gould wrote.

He pointed out that Boyer had been HIV positive for a decade and had full-blown AIDS for more than two years before he engaged in sex with the children.  He also allegedly bragged about raping one of the children and knew he could transmit the disease through unprotected sex, according to the court.

The highly unusual nature of the case and the novelty of the law suggests this case could be on a track for en banc review by an 11-judge panel.  We’ll have to wait to see if Boyer pursues an appeal and how a majority of the court’s 25 judges react.

Case:  Boyer v. Belleque,  No. 10-35574

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