State v. Turner, 2012-668 (La. App. 3 Cir. 12/5/12); 103 So.3d 1258

In this Court of Appeal of Louisiana, Third Circuit decision, the court held that the defendant's sentence of eight years of hard labor for a conviction of intentional exposure to HIV was not unconstitutionally excessive. The defendant, Patrick Turner, was charged with violating Louisiana's "intentional exposure to the AIDS virus" statute after the woman with whom he was involved discovered medical records indicating that he was HIV positive after the two had engaged in unprotected sex. The trial court sentenced him to eight years of hard labor. Turner appealed and the Court of Appeal of Louisiana, Third Circuit rejected his argument and affirmed the harsh sentence.

Turner's sentence of eight years is within the upper echelon of what is permissible. Louisiana's sentencing guidelines dictate that those convicted under the "intentional exposure to AIDS" statute may receive up to 10 years of hard labor. Unfortunately, though – as the appellate court opinion discusses at length – such a decision is not uncommon. In one case, a first offender who pleaded guilty to two counts of the crime was given two terms of five years of hard labor after she failed to appear for one pre-sentence investigation interview. In another, a man with one prior conviction for attempted simple burglary received the maximum sentence of 10 years of hard labor. One reason these defendants faced such severe penalties is a Louisiana policy allowing trial courts to examine a broad range of prior criminal activity during sentencing, including "records of prior arrests, hearsay evidence of suspected criminal activity, conviction records, and evidence of uncharged offenses or offenses that were nolle prossed." Here, for example, the court even cited an off-the-record phone call between a detective and the judge's secretary about potential charges arising in another state.

Louisiana's "intentional exposure to the AIDS" virus statute illustrates the state legislature's lack of a fundamental understanding of HIV and AIDS. As Turner brought to light during his trial, the law incorrectly refers to AIDS as a virus. In spite of the lawmakers' apparent confusion around HIV and AIDS, the appellate court affirmed the conviction and imposition of eight years of hard labor.