First off, I’m new to GD, so if my tone or wording leaves something to be desired, please bear with me.
OK. Say a woman is raped. She knows that she is HIV positive. Her attacker does not, and no protection is used. (Let’s assume that she and her attacker have never seen each other prior to the day of the rape.) Later, the attacker contracts HIV.
She does not say anything about her HIV to the rapist, because she doesn’t have the presence of mind to do so prior to the end of the crime.
Now, let’s say she doesn’t say anything as a kind of revenge, knowing that the man raping her is likely contracting a painful and deadly disease from her.
Is she responsible for his contraction of the virus? I would think from a moral standpoint, it’s a slam dunk not guilty for her, but I’ll leave that point open for debate.
Is there any legal dilemma? Could she possibly be guilty of a crime? If she informed the attacker, he would not have raped her, and would not have caught the virus. Does that mean that by not protecting him (and herself from the rape) she could be charged with attempted murder or manslaughter?
Let it be assumed that both were recently tested negative before the rape.
That part of the question is aimed more for the legal issues. Laws ain’t always fair, y’know?
I think obviously, she has no moral obligation to tell him anything. She is an unwilling particiapnt, and therefore, should not be responsible in any way for anything that stems from this.
I don’t think she could ever be found responsible, even if she deliberately withheld the information. It would be too easy to prove in court that she was “too traumatised to speak” etc.
Besides which, overwhelming public opinion would probably be that the rapist deserved everything he got - crabs, syphilis, whatever. And more.
Of course she didn’t have HIV before this, what are you implying?!?!She is as responsible for the transmission of the disease as she is for the rape itself.
I’m only new here, so I apologise in advance if what I say offends anyone.
I was under the impression from the original message that the victim of the rape knew that she had the HIV virus. If that’s the case then I’m not exactly sure what you’re trying to say by denying this fact.
Along the same lines, just what are you trying to imply by saying that she, herself, if responsible for the event of the rape???
Sorry to throw a bucket of cold water on this, but I understand it’s very difficult for a woman to pass the HIV virus on to a man during one sexual contact. It’s not impossible, though.
On topic, I can’t provide a cite for this, but women are commonly advised that telling rapists that they have AIDS or some other STD doesn’t prevent rape. Because of that, and because the woman was not a willing participant, I’d say she’s not guilty of manslaughter.
First a little legal nitpick - there’s no such concept as “attempted manslaughter.”
Manslaughter is not a specific-intent crime; you can’t “attempt” it. Manslaughter is complete when a person, through reckless or negligent actions, causes the death of another. If the intent was to cause a death, it’s murder.
And in that definition is found the answer to the OP, as well. No one could argue that the victim of a rape was either reckless or negligent in getting raped. Assuming the rapist contracted the disease and died, no reckless or negligent act on the victim’s part contributed to his death. So I don’t see a prayer of any criminal liability for the rape victim.
A more interesting question is if she has any civil liability.
You cannot employ deadly force to resist non-deadly force. For example, you cannot gun down a vandal who is toilet-papering your house. You can’t set a trip gun to fire at an intruder when tripped. You can’t arm your door frame with poison spikes to skewer a would-be burglar. So does an HIV+ rape victim have a civil duty to tell her attacker of her condition?
I would say absolutely not - but I’d welcome people smarter in tort law than I to weigh in.
She was raped; thus, she did not consent to sexual contact in the first place. She was not afforded an opportunity to disclose her HIV status; the rapist waived the opportunity to be so informed when he raped her. Keep in mind that criminal liability must flow from a voluntary act. Being raped is not a voluntary act from which criminal liability may arise.
Keep in mind that an HIV-positive person who tries to stop and inform his/her partner that s/he is HIV-positive, but whose partner refuses to let him/her do so, is a rape victim because sex ensued before one party was fully consenting.
However, being raped would certainly qualify as being the recipient of deadly force, would it not? Certainly, enough rapes end in murder to cause an already-panicked rape victim to believe they are in imminent danger of death, no?
otherwiseknownas- Welcome to the boards. What erislover is doing is just playing along with the debate, bringing in differnt POVs for the sake of debate. (And missing a point like that is called a whoosh. Nothing personal :D)
Bricker- Thanks for clearing up my definitions. I’ve watched enough Law and Orders to know that by now.:smack: *
KellyM
Not always true- take the cases in which burglars are wounded (sometimes unintentionally, even) in their victims’ home, and are awarded judgements as a result of these injuries. Is that not somewhat paralell to this: Bad guy id solely responsible for his own criminal actions, is harmed by victim (intentional or not), and is awarded damages resulting from original victim’s (in)actions.
*-First time I’ve ever used Smackie. I feel so growed up.
depends on the state. I had a client here in MI who was being choked by a neighbor, two people attempted to drag him off of her w/o success, she grabbed a baseball bat and was able to hit him and get him off her.
she got charged w/assault. (parenthetically, she was sentenced to “one month probation”, which had the net effect of no sentence, but the charge was there)
No deadly force to resist non-deadly force you are correct, however if the rape is forcible, in most jurisdictions it is considered deadly force and the self-defense defense will be upheld both in civil and criminal court. Further, a reasonable mistake as to the amount of force used is allowed, and the court will consider physical differences between plaintiff and defendant in deciding what was reasonable.
Rhum, 1L, just took my torts exam this morning, and kicked the snot out of it, I think
If she did it would be quite paradoxical, as telling would be implying one would use deadly force, and is in fact threatening it. Not telling isn’t using deadly force to resist anything. I don’t think it applies.
The one potential moral snag in her not telling the rapist that she is HIV+ is that the rapist may then go on, unknowingly, to spread HIV to other innocent people, either through consensual sex, or further rapes. I don’t know if I buy that personally, though. A guy who goes about raping women probably isn’t the kind who really gives a damn whether he spreads AIDS around, so telling him after the fact is probably pointless, anyway. Nevertheless, I just thought I’d add another dimension to the discussion.
