TV star Charlie Sheen recently revealed that he is HIV positive. Mr. Sheen’s lifestyle is no secret, for years the tabloids have chronicled his seemingly non-stop partying, his coterie of “goddesses” and his many sexual escapades. According to Mr. Sheen’s revelation, he has known he was HIV positive for at least four years. He claims that he informed all of his sexual partners that he was HIV positive, but at least several of Mr. Sheen’s alleged sexual partners have denied that Mr. Sheen informed them of his condition.


Could Mr. Sheen have violated California criminal law? Well, maybe. When specific conditions are met, California makes it a felony to expose another person to HIV by engaging in unprotected sexual intercourse. (Cal. Health and Safety Code §120291.) Mr. Sheen may have violated this statute if he knew he was HIV positive at the time he engaged in unprotected sex but did not disclose his condition to the other party. If, as some of Mr. Sheens sexual partners in the last four years are correct, he did not inform them of his HIV positive status prior to having unprotected sex with them.


However, that is not enough to make it a crime. The statute also requires that the Mr. Sheen not only had unprotected sex and failed to disclose the infection but that he had the specific intent to infect the other person with HIV. Specific intent is a legal construct that means not only did the person commit the criminal act but that he or she did so with the knowledge and desire to achieve the illegal act. Thus in order to find Mr. Sheen guilty of this felony, the State of California would need to prove that Mr. Sheen had the unprotected sex with the specific objective of infecting his partner or partners with the HIV virus. Completion of the crime does not require that the partner did, in fact, become infected.


As you can imagine, this would be a very difficult crime to prove. Since we can’t read minds, how can the prosecutor or a judge or jury know if someone specifically intended to infect another with HIV? Ultimately, specific intent crimes rely on circumstantial evidence.


A few hypothetical examples illustrate circumstantial evidence: A person, knowing he is HIV positive, has unprotected sex with several people. Later, a witness reports to the police that this HIV-positive individual bragged to the witness that he had unprotected sex because he was angry and wanted others to contract the virus. Or, in another example, the HIV-positive person, after having unprotected sex, got angry at the person he had the sex with and in a fit of anger said something like, “I infected you with HIV.” In the latter example, the statement does not indicate the intent to infect at the time of the unprotected sex, but it could be enough for the prosecution to pursue charges.


Barring any circumstantial evidence of intent, a person is not likely to be charged with felony exposure of another person to HIV. Indeed, such charges are rarely prosecuted in California. As for Mr. Sheen, without evidence that he intended to infect his sexual partners, he is unlikely to be charged with a felony.


Then again, Mr. Sheen could be charged with a misdemeanor simply for exposing his sexual partners to the HIV when he was already aware that he was infected. (Cal. Health and Safety Code §120290.) While not as serious a charge, this crime still carries a potential jail sentence of up to six months.