Upholding a conviction of “aggravated sexual assault of a child,” on July 8, the Texas Court of Appeals rejected an HIV-positive defendant’s claim that he was “overcharged” for the offense because his penis and body fluids do not constitute “deadly weapons” within the meaning of the Texas Penal Code.

Defendant Jimi Hofmann learned that he was HIV-positive in 1992. The incidents leading to criminal charges against him took place ten years later.

During 2002, Hofmann initiated unprotected sexual contact with his daughter, A.K., then about age 15, telling her that he was not actually her biological father, although he was in fact her father. The opinion does not indicate whether A.K. had any knowledge about her father’s HIV-status, but said that although she was below the age of consent, she did agree to have sex.

Hofmann’s activities came to the attention of law enforcement after he took advantage of a visit to a motel room to initiate group sex involving himself, his daughter and C.H., a son by a woman who is not the girl’s mother. C.H. later told his mother about Hofmann encouraging him to have sex with his half-sister.

There is no indication that A.K. contracted HIV as a result of sexual activity with her father.

Hofmann was charged with aggravated sexual assault of A.K., and convicted of the crime. Under the statute, use of a deadly weapon is an aggravating circumstance. A deadly weapon is defined as “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury,” according to Texas statute.

On appeal, Hofmann argued that he should not have been charged with the aggravated offense, because his penis and bodily fluids do not constitute deadly weapons, despite his HIV-positive status.

According to Justice Bea Ann Smith, “Prosecution witness Robert Kaspar explained the nature of HIV and its transmission and linked the medical facts to the plain language of the statute. Jimi Hofmann made no attempt at trial, and makes no attempt now, to contradict Kaspar’s testimony. He argues instead that the State’s reading of the deadly weapon provision is unreasonably broad and that the legislature’s only intent was to punish the use of violence in sexual assault, not to increase criminal penalties for the victims of a disease.”

Rejecting this argument, Smith cited a 1997 Texas appeals court decision that upheld the conviction of an HIV-positive man for aggravated assault of an HIV-negative woman, which stated that “the jury could rationally conclude beyond a reasonable doubt that he intentionally or knowingly used his penis and bodily fluids in manner capable of causing death to [the victim] by infecting her with HIV.”

In neither case, did rulings consider to what degree HIV remains a deadly disease, and Smith quoted another judge as observing that the degree to which the deadly weapon definition “has fallen prey to ‘mission creep’ into areas unforeseen and probably unintended by the Legislature,” the Legislature was best situated to consider tightening up the language.

Hoffman could appeal his sentence to the Court of Criminal Appeals, Texas’s highest criminal appeals court.

—Arthur S. Leonard

Editor’s note: Last week’s cover story on the retirement of Supreme Court Justice Sandra Day O’Connor incorrectly stated that she joined the majority in Bragdon v. Abbott, the Court’s most important AIDS ruling to date, which held that the Americans with Disabilities Act could protect an HIV-positive woman from being denied services by a dentist in his private office. O’Connor dissented in that case.