Question: Did He Expose His Victims to HIV on Purpose?

HISTORY: Calvin Stark was convicted in the Superior Court, Clallam County, Washington, of two counts of second-degree assault for intentionally exposing his sexual partners to the human immunodeficiency virus (HIV), and he appealed. The Washington Court of Appeals affirmed, and remanded the case for resentencing. PETRICH, CJ. FACTS On March 25, 1988, Calvin Stark tested positive for HIV, which was confirmed by further tests on June 25 and on June 30, 1988. From June 30, 1988, to October 3, 1989, the staff of the Clallam County Health Department had five meetings with Stark during which Stark went through extensive counseling about his infection. He was taught about "safe sex," the risk of spreading the infection, and the necessity of informing his partners before engaging in sexual activity with them. On October 3, 1989, Dr. Locke, the Clallam County Health Officer, after learning that Stark had disregarded this advice and was engaging in unprotected sexual activity, issued a cease and desist order as authorized by a Washington State statute. Stark did not cease and desist, and, consequently, on March 1, 1990, Dr. Locke went to the county prosecutor's office. The prosecutor. had Dr. Locke complete a police report. The state then charged Stark with three counts of assault in the second degree under RCW 9A.36.021(1)(e), which provides:

(1) A person is guilty of assault in the second degree if he or she: (e) With intent to inflict bodily harm, exposes or transmits human immunodeficiency virus. Each count involved a different victim. Count One. The victim and Stark engaged in sexual intercourse on October 27 and October 29, 1989. On both occasions, Stark withdrew his penis from the victim prior to ejaculation. The victim, who could not become pregnant because she had previously had her fallopian tubes tied, asked Stark on the second occasion why he withdrew. He then told her that he was HIV positive. Count Two. The victim and Stark had sexual relations on at least six occasions between October 1989, and February 1990. Stark wore a condom on two or three occasions, but on the others, he ejaculated outside of her body. On each occasion, they had vaginal intercourse. On one occasion Stark tried to force her to have anal intercourse. They also engaged in oral sex. When she told Stark that she had heard rumors that he was HIV positive, he admitted that he was and then gave the victim an AZT pill "to slow down the process of the AIDS." Count Three.

The victim and Stark had sexual relations throughout their brief relationship. It was "almost nonstop with him," "almost every night" during August 1989. Stark never wore a condom and never informed the victim he was HIV positive. When pressed, Stark denied rumors about his HIV status. The victim broke off the relationship because of Stark's drinking, after which Stark told her that he carried HIV and explained that if he had told her, she would not have had anything to do with him. At the jury trial, the victim in count one testified to her contacts with Stark and the jury received Dr. Locke's deposition testimony regarding the Health Department's contacts with Stark. Stark did not testify. In the bench trial [trial without a jury], Dr. Locke testified. There the state also presented the testimony of one of Stark's neighborhood friends. She testified that one night Stark came to her apartment after drinking and told her and her daughter that he was HIV positive. When she asked him if he knew that he had to protect himself and everybody else, he replied, "I don't care. If I'm going to die, everybody's going to die." The jury found Stark guilty on count one. A second trial judge found Stark guilty of the second and third counts at a bench trial. On count one, Stark was given an exceptional sentence of 120 months based on his future danger to the community.

The standard range for that offense was 13 to 17 months. On counts two and three, Stark was given the low end of the standard range, 43 months each, to be served concurrently, but consecutively to count one. OPINION Stark contends that there is insufficient evidence to prove he "exposed" anyone to HIV or that he acted with intent to inflict bodily harm. Since Stark is undisputedly HIV positive, he necessarily exposed his sexual partners to the virus by engaging in unprotected sexual intercourse. The testimony of the three victims supports this conclusion. The testimony supporting the element of intent to inflict bodily harm includes Dr. Locke's statements detailing his counseling sessions with Stark. With regard to the first victim, we know that Stark knew he was HIV positive, that he had been counseled to use "safe sex" methods, and that it had been explained to Stark that coitus interruptus will not prevent the spread of the virus. While there is evidence to support Stark's position, all the evidence viewed in a light most favorable to the State supports a finding of intent beyond a reasonable doubt. The existence of noncriminal explanations does not preclude a finding that a defendant intended to harm his sexual partners. With regard to the later victims, we have, in addition to this same evidence, Stark's neighbor's testimony that Stark, when confronted about his sexual practices, said, "I don't care. If I'm going to die, everybody's going to die." We also have the testimony of the victim in count two that Stark attempted to have anal intercourse with her and did have oral sex, both methods the counselors told Stark he needed to avoid. We affirm the convictions.

Questions: 1. Identify all of the facts relevant to determining Stark's mental attitude regarding each of the elements in the assault statute.

2. Using the common-law definition of "specific intent" and the Model Penal Code definitions of "purposely," "knowingly," "recklessly," and "negligently," and relying on the relevant facts, identify Stark's intention with respect to his acts.

3. Is motive important in this case? Should it be?