In New York, in addition to civil liability, there may be criminal charges for giving someone an STD. Since 2017, New York’s Public Health Law Section 2307 criminalizes knowingly giving someone an STD.
Elements of NY Public Health Law Section 2307
NY Public Health Law Section 2307 is titled “Venereal Disease; Person Knowing Himself to be Infected.” The elements of this charge are:
- Knowing himself or herself to be infected with an infectious venereal disease;
- Has sexual intercourse with another.
What is considered to be an infectious venereal disease under PHL 2307?
Public Health Law does not provide a definition of what is considered a venereal disease for the purposes of this criminal charge. Therefore, this charge can apply to any sexually transmitted disease.
Defenses to the Criminal Charge of Public Health Law Section 2307
1. Lack of Knowledge of the Infector as Defense for Criminal Charges for Giving Someone an STD
One of the elements that the prosecutor has to prove on their case is knowledge. That is to say, you knew that you were infected with a “venereal disease” and decided to engage in sexual intercourse with another.
Your medical records are protected by the Health Insurance Portability and Accountability Act of 1996, commonly known as HIPAA. Absent a HIPAA waiver from you or a Court order, the prosecutor is unable to get access to your medical records. Additionally, even if the prosecutor were able to obtain a Subpoena for your medical records, figuring out where you obtained medical treatment and when may be an impossible question for the prosecutor to answer.
Without having your medical records to establish when you found out about your venereal disease diagnosis, it is impossible for the prosecutor to establish your knowledge, assuming no other evidence exists. With that being said, frequently other evidence may be out there that would establish your knowledge of your medical status.
Examples of Evidence Corroborating Knowledge of Venereal Disease Status
- Text messages, emails or other written or recorded communications with the complaining witness;
- Possession of medication for treatment of the venereal disease;
- Statements made to friends and family regarding your STD status. Whatever you say can subsequently be used against you in a criminal proceeding. The only exception is communications protected by attorney client privilege or doctor patient confidentiality.
2. Causation as Defense for Criminal Charges for Giving Someone an STD
From an evidentiary standpoint, it is rather hard to prove beyond a reasonable doubt who gave the STD to whom for two reasons.
In cases where an individual has multiple partners around the same time period, it is difficult to establish which individual transmitted the venereal disease. So long as there is no other evidence corroborating causation. Thus, a defense to Public Health Law 2307 charges could be that someone other than the client is responsible for giving the complaining witness a venereal disease. If the prosecutor cannot establish both causation and knowledge, they don’t have a case.
Direction of Transmission
Let’s say A and B are in a relationship with each other and don’t have any other sexual partners. Unless there exists uncontroverted proof like a very recent STD test result for one of them, it is very difficult to establish whether A gave the STD to B, or B to A. Therefore, a defense to Public Health Law 2307 charge could be that the prosecutor cannot establish the direction of transmission of the disease.
3. Consent as Defense for Criminal Charges for Giving Someone an STD
The entire purpose of the Public Health Law is to prohibit individuals from engaging in intercourse with others without fully educating their partner of the risks involved. If an individual with the STD informs their partner of their medical status, and obtain their knowing and voluntary consent to engage in intercourse with the infected person, that would generally negate any criminal liability.
That is because the individual is fully informed and aware of the risk of transmission and assumes the risk by making a knowing and voluntary decision to have intercourse with an infected person.
Sentence and Penalties for Criminal Charges for Giving Someone an STD
New York Public Health Law Section 2307 is a Class A Misdemeanor. That means that this charge can be punishable by up to one year in prison. Oftentimes, the ultimate resolution of the case depends on the individual’s criminal history, as well as the facts and circumstances of a case. Meaning, a prosecutor will likely make a better plea offer, if they anticipate having a hard time proving the case, or one of the elements to a jury.
Other Crimes Commonly Charged with Public Health Law 2307
Frequently, New York criminal charges for giving someone an STD involve other charges in addition to Public Health Law Section 2307. For example, one of the charges that is oftentimes paired with PHL 2307 is New York Reckless Endangerment.
What is NY Reckless Endangerment?
Under New York Law, Reckless Endangerment charges require someone to recklessly engage in conduct that creates either a serious risk of physical injury or death to someone. The misdemeanor reckless endangerment charge requires a risk of serious physical injury, while felony reckless endangerment requires a grade risk of death to another person.
New York Felony Reckless Endangerment
Under New York Penal Law Section 120.25, Reckless Endangerment in the First Degree requires recklessly engaging in conduct that creates a grave risk of death to another person. This charge may apply to knowing transmission of venereal diseases that may carry a risk of death, such as HIV.
Felony Reckless Endangerment is a Class D Non-violent felony. As such, it is punishable by 2 1/3 to 7 years in prison. However, a conditional sentence or probation may also be imposed.
New York Misdemeanor Reckless Endangerment
Under New York Penal Law Section 120.20, Reckless Endangerment in the Second Degree requires that a person recklessly engages in conduct that creates a risk of serious physical inquiry to another.
New York Criminal Law has a special definition of what is serious physical injury. The definition is found in New York Penal Law Section 10.10, which states:
"Serious physical injury" means physical injury which: - creates a substantial risk of death, OR - causes death or serious and protracted disfigurement, OR - protracted impairment of health OR - protracted loss or impairment of the function of any bodily organ.
This charge is a Class A Misdemeanor, and is punishable by up to 1 year in prison.
SORA Registration for Giving Someone an STD
Fortunately, neither the reckless endangerment charges nor the Public Health Law Section 2307 are subject to Sex Offender Registration Act (“SORA”) Registration. However, if there are other charges included on the Indictment or Complaint (i.e. Rape in the Third Degree for nonconsensual sex), if the plea is to a SORA Registration offense, then SORA Registration will be required.
Bail Eligibility and Ability to get a Desk Appearance Ticket for Giving Someone an STD
NY Desk Appearance Tickets in Criminal Charges for Giving Someone an STD
If the arrest is only for misdemeanor charges, the police are able to issue a Desk Appearance Ticket. This means that instead of being transported to the Court and waiting 24 hours to go before the Judge, you are eligible to receive a ticket to come back to court on your own, approximately 4 to 6 weeks in the future. However, in some situations, you will not be able to receive a Desk Appearance Ticket for Public Health Law 2307, such as:
- The charges involve domestic violence;
- You have an open matter or an outstanding warrant;
- Police also have felony charges on the docket against you.
Importantly, as the police will often deem an intimate relationship a “family offense,” then you would not be eligible to receive a DAT for PHL 2307. Unfortunately, your attorney has no control of how the police will categorize your crime.
Bail on Public Health Law Section 2307
Criminal Charges for giving someone an STD under Public Health Law Section 2307, is not a bail-eligible offense. Meaning that if the judge wanted to, the Judge cannot set bail on your case. However, certain factors can allow the Judge to set bail on criminal charges for giving someone an STD. Such as:
- domestic violence charges
- open matters or outstanding warrants
- other bail eligible offenses pending against you either on the same case, or on a different case.
Contact a New York Public Health Law 2307 Criminal Defense Attorney Today
If you are accused of criminal charges for giving someone an STD, it is important to have an experienced Public Health Law 2307 Criminal Defense Attorney. There may be a number of ways to defend these charges, or minimize the collateral consequences of these charges. Contact us today for a free consultation.